Anita Y. Milanovich

Opinion contributor

Most of us, at some point, struggle to fit into our own skin. We work (sometimes fight) to understand, improve and accept who we are. And for many American youth, high school athletics serve as an early way to strengthen identity — to discern and develop the skills and abilities that grow us into adults.

Since the advent of Title IX in 1972 — a federal law that expanded athletic and educational opportunities for women — millions of girls and women have benefited from their own teams and chances for growth. But these opportunities risk being redefined and obliterated, because of a case pending before the U.S. Supreme Court.

The case, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, will be argued this October. The case centers on the question of whether the meaning of the word "sex" in employment law (Title VII) also covers gender identity. While its outcome obviously matters for the people immediately involved, the Supreme Court’s ruling on the meaning of the word “sex” has direct and profound implications for other parts of federal law. It matters for the millions of girls and women affected by analogous laws such as those that ensure equal opportunities for education and athletic opportunities “on the basis of sex.”

Don't reinvent the meaning of 'sex'

That’s why I’ve partnered with the Independent Women’s Forum and 1,013 individual athletes and parents from around the country to submit a friend-of-the-court brief supporting Harris Funeral Homes. Not only should business owners be able to rely on the plain meaning of the law, courts shouldn’t take on Congress’ job and reinvent the meaning of “sex.” Doing so would fundamentally redefine what it means to be a “girl” or a “woman” by judicial fiat and inject confusion, if not chaos, onto the track and the field, into the pool and the locker room.

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That’s not hyperbole. The challenges — intended or not — are already emerging. For example, the Connecticut Interscholastic Athletic Conference has a policy that allows high school students born male to compete in women’s athletic competitions if they identify as female, regardless of whether they have taken steps to alter their physiology.

As a result, since 2017, two biological males have collectively won 15 women’s track championship titles — previously held by 10 Connecticut females — against biologically female track athletes.

And track isn’t the only impacted sport. A biological male competing as a female powerlifter after undergoing 11 months of hormone replacement therapy set multiple world records in the women's category at a 100% Raw Powerlifting Federation competition in April. Just one month longer, and the athlete's hormone therapy regimen would have been considered complete.

In 2014, a transgender athlete who was born male and underwent sex reassignment surgery competed in a female mixed martial arts competition. Not only was opponent Tamikka Brents tko'd (a technical knockout), she was left with a concussion and a broken skull. Biological males are even beating out biological females for qualification to compete in female-only Olympic competitions.

Males and females are different

This shouldn’t surprise us. On average, men have 36% more skeletal muscle mass, according to one study. In general, males are taller, have thicker bones and have greater lung capacity than their female counterparts. Cross-hormone treatment (with all the risks and side effects such treatments entail) cannot fully suppress all these biological competitive advantages. Indeed, the entire premise behind sex-specific competition in sports is the simple scientific reality that, in general, males are stronger, faster and more physically powerful than females. As a result, if males and females are required to compete together, women will almost always lose.

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As Beth Stelzer, a biologically female amateur powerlifter and founder of Save Women’s Sports, observes, “If biological men are allowed to compete in women’s sports, there will be men’s sports, there will be co-ed sports, but there will no longer be women’s sports.”

My heart aches seeing the struggles of males who believe they are females. Anyone struggling with his or her identity in this way needs love, support, compassion and friendship — and absolutely deserves protection from bullying and violence.

Even so, a just, equitable and compassionate solution simply cannot require the redefinition of what it means to be a girl or a woman. Loving each other does not necessitate a spot on the women’s team, or a woman’s trophy.

Anita Y. Milanovich, attorney at Milanovich Law, has litigated constitutional issues for nearly 15 years. She lives in Butte, Montana.