USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 145 of 150
undermine the value of girls’ sports for cisgender girls. For one thing, there will never be many transgender girls who participate in girls’ sports, considering the very low percentage of the population identifying as transgender, only some of whom identify as girls and many of whom will not compete in sports. See Jody L. Herman et al., UCLA School of Law Williams Institute, How Many Adults and Youth Identify as Transgender in the United States? (June 2022), https://williamsinstitute.law.ucla.edu/publications/trans-adults-united-states (last accessed Dec. 28, 2022) (estimating that less than 1.5% of the youth population identifies as transgender). For another, an abundance of biological differences has always existed among cisgender girls and women, who compete against one another despite some having distinct biological advantages over others. See, e.g., Canadian Center for Ethics in Sport E-Alliance, Transgender Women Athletes and Elite Sport: A Scientific Review at 18–30 (2022), https://www.transathlete.com/_files/ugd/2bc3fc_428201144e8c4a5595fc748ff8190104.pdf (“E-Alliance Review”) (last accessed Dec. 28, 2022) (analyzing biological factors affecting trans- and cis- women athletes’ participation in high performance sports and concluding that there is no compelling evidence, with or without testosterone suppression, of performance benefits that can be traced directly to transgender status). Indeed, something as simple as being left-handed may offer a significant competitive advantage in some sports, and yet we do not handicap or ban left-handed girls in Title IX-funded programs. See Steph Yin, Do Lefties Have an Advantage in Sports? It Depends, https://www.nytimes.com/2017/11/21/science/lefties-sports-advantage.html (last accessed Dec. 28, 2022). Plus, to adopt Judge Lagoa’s concerns is to deny the myriad ways in which transgender girls and women are disadvantaged in athletics, further casting doubt on any fears that transgender athletes will overwhelmingly dominate, and somehow spoil, girls’ sports. See E-Alliance Review at 36–38.
What is more, Judge Lagoa’s concurrence fails to acknowledge the value that inclusion of transgender girls may have on girls’ sports, both to trans- and cis-gender girls. It is well documented that the primary beneficiaries of Title IX have been white girls from socioeconomically-advantaged backgrounds.
