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Biden proposal for boys in girls' sports breaks UN obligations, rapporteur says, as injuries climb

When males can "strike at female athletes on a playing field," the "toleration of such behaviour off the pitch" is likely to follow, UN sex violence expert says. Transgender players in girls' swimming, volleyball, basketball cause outcry.

Published: February 21, 2024 11:00pm

As males participating in girls' sports continues to result in injuries to females and them dominating the competition through inherent physiological advantages, an officially recognized United Nations human rights expert is urging the Biden administration not to make the situation worse.

Special Rapporteur Reem Alsalem, whose purview is "violence against women and girls, its causes and consequences," privately warned the U.S. government in December 2023 that planned changes to Title IX regulations would result in "unfair treatment and unlawful and extreme forms of discrimination against most women and girls on the basis of female sex."

The Department of Education's notice of proposed rulemaking on "sex-related eligibility criteria" in athletics last spring would functionally incentivize schools to use gender identity to determine who plays on girls' teams.

It would require schools to convince the feds that keeping males out is "substantially related to the achievement of an important educational objective" and "minimize harm" to students who want to compete as the opposite sex.

For example, schools would have to explain why they couldn't just give girls "protective equipment" to mitigate against likely injuries from males.

The changes could endanger U.S. compliance with "international human rights law" on the rights to equal treatment, education, privacy and participation in "cultural life" such as sports regardless of sex, says Alsalem, a veteran of UN human rights and refugee work.

She invoked agreements including the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights. 

The Convention on the Elimination of All Forms of Discrimination Against Women explicitly requires "[t]he same opportunities to participate actively in sports and physical education," Alsalem noted. 

The Biden administration has repeatedly delayed finalizing the athletics rule, citing a record-breaking flood of public comments. House Republicans put further pressure on the feds to backtrack with a December 2023 hearing featuring women's sports activist Riley Gaines.

Gender-critical feminists, GOP governors and right-of-center organizations protested the plan as "literally impossible to follow," cost-prohibitive, misleading to children by falsely claiming early administration of puberty blockers erases male physiological advantage, and a potential threat to First Amendment rights.

The dispute parallels court fights in recent years over the speech implications of so-called gender-affirming policies, which sometimes pay out big for censored targets.

A Texas pastor who alleges he was fired as a volunteer fire department chaplain for objecting to males in women's sports on his blog filed a motion for summary judgment this week in his nearly two-year-old First Amendment lawsuit against the city of Austin.

If government chaplains like Andrew Fox could be fired simply because "someone disagreed with" the views they shared "on a personal blog outside work" – as documented by depositions in Fox's case – "no government chaplain could express a religious view off-duty without fear of retribution," the motion says.

Male domination of girls' sports has spread beyond high-profile examples such as University of Pennsylvania transgender swimmer Lia Thomas, who in 2022 won the women's 500-yard freestyle event at the NCAA Championships.

Meghan Cortez-Fields, a professed admirer of Thomas who competed on the men's swim team at New Jersey's Ramapo College for three years, has already broken multiple records since joining the women's team in November, according to Outkick

Gaines posted a since-deleted Instagram post of the college praising Cortez-Fields, who has a tattoo resembling the Venus de Milo with male genitalia.

In Massachusetts, Collegiate Charter School of Lowell said it forfeited a Feb. 8 girls' basketball game to KIPP Academy because three of its female players left the game with injuries in the first half and they couldn't risk more on the eve of playoffs.

InsideLowell obtained video of one of those injuries, caused during a struggle for the ball with a player who is allegedly male. Fox News said a source claims the player "is more than 6 feet tall and has facial hair."

The local Daily Item reported that KIPP "refused to confirm the player’s gender identification" and that Collegiate Athletic Director Kyle Pelczar knew of KIPP's roster because they played each other without incident earlier in the year.

Canada's conservative Rebel News recorded video from a Toronto women's volleyball match between Seneca College and Centennial College last month in which five male players allegedly participated. 

The New York Post clipped a screenshot of the allegedly male players, three for East Division-leading Seneca and two for Centennial, which is tied for fourth and lost to Seneca.

A source told Rebel News that transgender players had caused two head injuries to females this season in the Ontario Colleges Athletic Association, which allegedly has six trans players, five of whom "are not on any gender-affirming hormone therapy or have not had surgical gonad removal." OCAA didn't respond to Just the News queries.

Women's tennis legend Martina Navratilova criticized the alleged transgender volleyball participation as "wrong. This has to stop!"

The UN Office of the High Commissioner for Human Rights posted Alsalem's letter this week in keeping with her 60-day request for a response. The case page shows the U.S. did not respond.

The State Department referred Just the News to DOE to explain the lack of response, but did not answer whether State itself received the letter, which is only addressed to "your Excellency’s Government." DOE didn't respond to queries.

"Over the years, Title IX had allowed women and men to celebrate their independent and incomparable physical limits in equality," Alsalem wrote, raising several of the issues cited by activists including Gaines.

She tied with Thomas for fifth place in the 2022 championships in the 200-meter event, but Thomas was given the trophy at the podium because there was only one on-site and Thomas was older, which follows NCAA rules. 

Male physiological advantage is neither preempted by puberty blockers nor "undone by testosterone suppression" and lasts "throughout their life cycle," she wrote. "Historically, the sex differences in athletic performance are larger than what can be accounted for by physiological and anatomical factors, particularly among lower-ranked athletes."

This leads to greater risk of injury to females but also their "self-exclusion" to avoid injury, according to Alsalem. When males are allowed to "box, wrestle, pin, shove, or strike at female athletes on a playing field," the "toleration of such behaviour off the pitch" is likely to follow.

The cascading consequence of coed participation is "undermin[ing] their overall participation in society and public life," she wrote.

Much of Alsalem's concern is psychological in nature and specifically pertains to the loss of "intimate spaces" such as single-sex locker rooms, as the rule foresees.

Females will "experience loss of dignity, anxiety, stress, humiliation, embarrassment, apprehension, and distress," especially  "as they attend to menstruation and feminine hygiene needs," she wrote. The risk increases for "sexual harassment, voyeurism, and physical and sexual attacks" by "persistent sex offenders" who will abuse coed access.

Trasngender rights and dignity need not suffer under the preservation of single-sex teams and facilities, according to Alsalem. 

Schools can create "open categories" for participation and verify sex eligibility in ways "that are dignified, respect their privacy and are not invasive or showing [sic] a birth certificate," she said, "in line with the course of action applied by several professional sports associations."