By Patrick Morrisey, W.Va. Attorney General
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In June, I told a crowd gathered at the State Capitol that a lawsuit brought against a state law defining “sex” in school sports would not succeed.
Recently, those words came to fruition: a Democrat-appointed federal judge ruled the state legislature’s definition of “girl” and “woman” as biologically female for the purpose of participation in sports is “constitutionally permissible.”
With the judge’s decision, West Virginia remains one of 18 states with laws affirming that only biological females can participate in girls’ and women’s sports.
Some will claim this is simply discrimination, but nothing could be further from the truth.
At issue is something called Title IX.
In case you are unfamiliar with it, Title IX is a federal statute that was signed into law on June 23, 1972. It prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government.
This short and simple law demands that girls and women get their fair share of opportunities in education, and Title IX’s regulations make it clear that this could be accomplished in school athletic programs by having “separate teams for members of each sex” where the teams are based on competitive skill. Protecting these opportunities is important, because when biological males win in a women’s event—as has happened time and again—women and girls lose their opportunity to shine.
This is a shame because the impact of Title IX on women’s sports has been profound. Before the law, just one in 27 young women played sports. Today, that figure is two in five.
That statistic is remarkable, and it is all the result of a law that demands that girls and women get their fair share of opportunities in sports.
If males are allowed to compete alongside females, however, that fairness evaporates.
Why? Well, as one scientific journal put it, “Males have longer limb levers, denser bones, greater muscle mass and strength, and greater aerobic capacity” than women (JBJS Reviews, March 2020).
As a website run by the American Association for the Advancement of Science puts it “… men on average run faster, lift more weight, and throw harder and farther than women. Sporting events are therefore usually split into male and female categories to ensure fair competition” (science.org July 2018).
Although there are others, the most glaring example of the disadvantage at which these innate biological differences puts girls and women was the win by big, brawny, male-born swimmer Lia Thomas over much smaller, female-born competitors. The picture of Thomas hulking over them on a victor’s stand is one that says 1,000 words.
Female athletes deserve to compete on a level playing field. The recently upheld law protects fairness and safety for female athletes across West Virginia.
We will keep defending this law, as it is being taken up on appeal, because we think we are clearly correct on the law. We are hopeful that future courts will also see it that way.