Gender, Politics, and Equal Protection Under the Law

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Civil rights legislation always has its genesis in humanitarian principles: Protecting the weak, advocating for the voiceless, providing opportunities for the disenfranchised.

The Civil Rights and Voting Rights acts were remedies for institutional and generational racism that blocked many minorities, primarily African Americans, from obtaining equal status with their fellow citizens. The Americans with Disabilities Act, which marked its 30th year in 2020, mandated that this country treat those with mental or physical conditions that made their lives more difficult to navigate with respect, honor, and dignity.

Title IX is landmark legislation that was passed to ensure that women would have the same opportunities as their male counterparts in any education program or activity receiving Federal financial assistance. While Title IX did not explicitly mention athletics, it’s come to be known for its impact on women and their participation in collegiate sports.

Fast forward a few decades. Whereas it was clear that Title IX would apply to women, it has become increasingly difficult to define what, exactly, qualifies as a “woman” or more specifically, a female. That is because the trans rights movement has made biological certainty less important than “identification.”

Now we have biological men identifying as women, even though they were born with male genitalia, and may in fact still have that genitalia. We have individuals who have all of the biological attributes of males, including their strength and innate athletic abilities, who present themselves as females.

Society is slowly (although not quickly enough for some) accommodating those who have a disconnect between their biological and psychological realities. And to the extent that we want to protect people from being persecuted, or discriminated against because of the way they feel about themselves, that’s a good thing.

But what is not a good thing, and what is not acceptable, and what must stop, is the consistent and inexcusable discrimination of biological females in order to make trans women feel better about themselves.

Over the past few years, there have been an increasing number of biological males who, after coming out as “female,” have demanded inclusion on women’s sports teams. This has put actual females at a huge disadvantage, because there is no question and no doubt that a biological male has certain innate advantages over females. We can philosophize all we want about “I am woman, hear me roar” and the legitimate observation that Ginger Rogers did “everything Fred Astaire did, only backwards and in heels,” but ignoring the fact that testosterone provides endurance and strength advantages is magical thinking.
It’s all well and good to put your “personal pronouns” in your email identifiers so that the woke folk know that you are as woke as they are, but it is quite another to pretend that a person who presents as a girl but is really a boy can compete at an equitable level with actual girls.

Tulsi Gabbard agrees with me. The Democratic congresswoman from Hawaii and erstwhile presidential candidate has bucked her own party and presented legislation which would prevent biological males from competing as females in women’s athletics. Her bill would clarify Title IX to limit protections to those who were born as biological women, and not extend to those who identify as such.

According to Gabbard, “Our legislation protects Title IX’s original intent, which was based on the general biological distinction between men and women athletes based on sex. It is critical that the legacy of Title IX continues to ensure women and girls in sports have the opportunity to compete and excel on a level playing field.”

Gabbard is absolutely correct. We can’t eviscerate the protections afforded to one vulnerable group to advance the less than legitimate goals of another. Trans women and men should be protected against a host of ills and crimes, but they should not be able to appropriate a bill designed to protect an equally vulnerable group for spurious purposes.

It’s not just about gender politics. There have been unfortunate intersections and conflicts when dealing with other sorts of civil rights legislation where, in attempting to advance the interests of one group of people, you end up treading on the rights of another. Victims come in all shapes and sizes, and protecting some, sadly, harms others. I’m glad that at least in this limited arena, a legislator actually figured that out.

And now I understand why Tulsi Gabbard never made it through the primaries. She made too much sense.

Copyright 2020 Christine Flowers. Flowers is an attorney and a columnist for the Delaware County Daily Times, and can be reached at [email protected].

Christine Flowers is a Philadelphian who loves the Eagles but can leave the cheesesteaks. She writes about anything that will likely annoy the majority of people, and in her spare time practices immigration law (which is bound to annoy at least some people.)