Another Viewpoint: Maine’s approach to transgender athletes isn’t broken

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The question of how transgender athletes should participate in sports is back in the news.  A bill before the Maine Legislature, LD 926, would limit participation in girls’ interscholastic and intramural sports to students whose anatomy, naturally occurring level of testosterone, and genetics are female. It is one of several similar bills pending in 29 states around the country.

Maine is one of 14 states that allow student-athletes to compete based on their gender identity. Advocates argue that policy allows transgender girls to be themselves, to feel welcome at school, to have the valuable learning experience of participating in sports, to build self-esteem, and to improve their academic performance. 

Halsey Frank

Eleven states require students to participate according to the gender listed on their birth certificate. The explanations for those policies include protecting the “weaker” sex from damaging themselves, protecting women from the unfair advantage that men have as evident from the performance gap between men and women, protecting against male imposters, and protecting against women with unusually high testosterone levels.

In June 2016, The New York Times Magazine published a story about the history of governing bodies testing women athletes to determine whether they should compete against men or women. The story found that tests and standards weren’t clear and they changed over time. Even today, some athletes are disqualified for not being feminine enough or for being too masculine.

The story noted that the relationship between testosterone and performance hasn’t been conclusively established; that governing bodies don’t regulate testosterone levels among male athletes; don’t regulate other advantages like physiological variations, differences in nutrition, training, or coaching; and some currently allow transgender athletes to compete as they self-identify as a matter of human rights.  

It made the scheme for regulating gender in sport seem pretty haphazard.

There is a growing awareness that what we think of as gender is a function of multiple factors, that it is not a dichotomy, it is a range. Those factors include genetics, physiology, appearance, behavior, reproductive function, hormones, sense of self, and social norms.

Some of those factors are easier to measure than others. Drawing lines between genders in the abstract seems pretty unprincipled. In order to be rational, it has to be done in relation to some purpose.

If the purpose is to facilitate reproduction, then the distinction is relatively binary and easy to make. Other purposes are less straightforward. Serving multiple, inconsistent and poorly defined purposes is especially difficult. Moreover, if gender is a multidimensional range, any distinction is likely to appear arbitrary at the margin. 

It begs the question of the purpose of sport.  

At its most elemental, sport determines who is best at a given game. Beyond that, it gives an athlete the opportunity to improve their mind, body, and spirit. It gives them the opportunity to meet different people, develop teamwork, and work together toward a shared goal. It provides them with the opportunity to participate and compete. It provides fans with entertainment and a sense of identity, and nations with a source of pride.

Sport can even advance human achievement and understanding. World records are broken by competitors who understand how their bodies and minds work and use that knowledge to outdo themselves and their competition. Athletic contests can be occasions for different people to celebrate their common experiences and shared values. Lessons learned on the playing field can be applied to other areas of life.

Not all of these purposes are compatible. For example, if the goal of sport is to determine the best at a given game, then the only limits should be the rules of that game. Not everyone is going to be competitive. The conflict between the desire to win and the desire to participate is the source of a not-insignificant amount of hard feelings in youth sports.

Sport works best when its rules and goals are clearly defined and fairly enforced, when different leagues serve different purposes: A professional league to make money and determine who is the best, the Olympics to serve the Olympic ideal, amateur leagues to give people the chance to compete and develop themselves, and school leagues to give students the opportunity to learn from athletic competition.

It isn’t easy to make or enforce those distinctions. We’ve long blurred the lines, such as with professionals in the Olympics and big business in collegiate sports.

The Maine Principals’ Association regulates interscholastic sports at the state level. Its policy is to maximize students’ opportunity to participate regardless of their gender identity, unless that participation would result in an unfair athletic advantage or present an unacceptable risk of injury.

Transgender students have to notify their school of their desire to participate in sports consistent with their gender identity. The MPA’s Gender Identity Equity Committee holds a confidential hearing with the student, their parent or guardian, a representative of the school, and a representative of the MPA.  

The student presents evidence in support of their request, such as their age, physical characteristics, birth-assigned gender, stage of development, and documentation establishing their consistent gender identity from medical, school, and athletic records.

The GIE Committee must grant the student’s request unless it is convinced that their claim to be transgendered is not legitimate, or that allowing them to compete will give them an unfair athletic advantage or pose an unacceptable risk to others.

It’s a reasonable way to handle a difficult issue.

Portland lawyer Halsey Frank is the former U.S. attorney for the District of Maine.

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