The playing field has been leveled for female athletes at a small university in New Hampshire.
Concerned Women for America filed a civil rights complaint against Franklin Pierce University because of its transgender sports participation and inclusion policy.
The U.S. Department of Education’s Office for Civil Rights agreed with Concerned Women for America that the policy is in violation of Title IX, which prohibits discrimination on the basis of sex.
Doreen Denny, vice president of government relations for Concerned Women for America, joins “Problematic Women” to discuss why this victory is significant in the battle for the future of women’s sports.
Learn more about how you can stand with female athletes here.
Also on today’s show, Heritage Foundation education policy analyst Mary Clare Amselem debunks a recent Teen Vogue article arguing that private schools should be abolished.
And as always, we’ll be crowning our “Problematic Woman of the Week.”
Enjoy the show!
Virginia Allen: Women’s sports is an issue that we have followed very, very closely right here on Problematic Women. Many of you may remember that last year, The Daily Signal produced a documentary about a female track athlete, Selina Soule.
Selina lives in Connecticut, and she lost her spot to compete in the New England Track and Field Championship because two biological men took two of those eight spots. Selina’s story sadly has been repeated multiple times across the country, where we see biological men who “identify” as women wanting to compete and competing in women’s sports. And thus, women wind up losing opportunities, losing really the ability to win often.
But today we’re really excited that there’s been some good news on this forefront, and in this fight for women’s sports, and here to help us break down that good news and more of just the whole situation in this battle around women’s sports is Doreen Denny.
She’s the vice president of government relations for Concerned Women for America. Doreen, welcome to “Problematic Women.”
Doreen Denny: Thank you, Virginia. Glad to be here.
Allen: So, I want to begin first with this big-picture situation in the fight for women’s sports. We’ve seen an increase over the past several years of biological men who “identify” as women entering women’s sports.
And Concerned Women for America, you all have really been on the forefront of this fight. So, just give us first a quick overview of how you all have seen the women’s sports issue unravel over the past several years.
Denny: Sure. Well, I think we have to recognize that in 2016, the Obama and Biden administration actually put in place a policy they’ve signaled out to all schools across America, that sex in federal law, federal education law, under Title IX would be based on gender identity, not just biological sex.
And that affected everything from facilities to sporting programs and everything. Many states had followed suit or even led the way in this regard. And so, we started seeing a trend where, for individuals who are “identifying” as the opposite sex, they were looking for opportunities to participate in sports and certainly in the case where you have biological males competing against women, their physical advantage, which is physiological, it starts from birth actually from in the womb, the differences between male and female bodies started showing up in terms of competition and winning in competition.
So, I think Selina Soule was the first case that really landed on a national landscape to give people an awareness of what was happening.
And at the same time that was going on, the Equality Act was being debated in Congress, which again, would have redefined sex to include gender identity, thereby protecting a class based on perception of who you see yourself as being, instead of biological reality.
And that law, that well, it’s not a law, thankfully, but the Equality Act proposal would include education and federal civil rights rules around education.
So, this is where we found that we had to start to step in and get serious.
Title IX was a law that was passed in 1972, 48 years ago, and it really paved the way to ensure that women and men had equal educational opportunities and benefits, including in sports. So, we had a participation rate that’s been 10 times what it used to be in 1972, because it’s gone up 1,000% for high school females to be in athletics.
Same way in the college level, the participation has exploded. So, here we are in a position now where we’re saying, “Well, women are going to have fewer opportunities to really achieve, because they’re now going to have unfair competition on the playing field.”
Allen: OK. So, I want to get in a little bit more to Title IX, because I think that is such an important element of this argument … because like you said, Title IX, it was established so that there would be these equal opportunities for men and women. And for years, that created incredible benefit. Like you said, we saw this increase of women participating in sports.
So, there was a university, Franklin Pierce University in New Hampshire, they have been allowing biological men who “identify” as women to compete in women’s sports.
Concerned Women for America, you all saw what was happening at the university, and you filed a civil rights complaint with the U.S. Department of Education’s Office for Civil Rights. And you essentially argued what Franklin Pierce University is doing is in direct violation of Title IX.
So, just explain a little bit further what was happening at the university and what led you all to take action specifically on this case?
Denny: Sure. Yes, and this was going on about the same time that Selina was experiencing what she was experiencing. So, we saw at the college level the same thing happening and really what became the national awareness on that was that a national NCAA track title in women’s sports was given to a biological male who just smoked the competition.
And at that point we said, “OK, we have the certainty of federal civil rights law to ensure that sex discrimination does not happen against women.” OK, this is a discrimination issue. And so we have to challenge that.
We have to be able to challenge that under federal law. So we did file a civil rights complaint with Department of Education’s Office of Civil Rights, saying that on the basis of what’s happened at Franklin Pierce University with the individual receiving a national title, a biological male in women’s sports, that’s just patently unfair and in violation of a law that is supposed to be protecting women on the basis of sex—binary distinction, male and female.
And so, we were so grateful to be able to have an opportunity or an outlet to express that as an organization, because we’re a public policy organization, the largest in the country, representing women of all kinds of walks of life.
And to see the landscape start shifting in this way, it only was going to get worse. And so, our case was just resolved. We just heard about it last week, and we realized that what the Department of Education determined was that, yes, in fact, what Franklin Pierce University did with its transgender policy was a violation of Title IX.
And the thing to understand is that policy reflects the NCAA policy. It reflects many policies that universities have across the country, and because of what the NCAA has done and even the International Olympic Committee and the U.S. Olympic Committee. So, we’re hoping that this case really does send the warning signal to universities and colleges that they have a responsibility under federal civil rights law to ensure equal educational opportunities for women in sports.
And that is based on sex. It’s not based on gender identity.
Allen: Well, a huge thank you to you all and the work that you’re doing at Concerned Women for America, because this is such a critical victory that you all have just seen come through.
So, I want to ask you just a little bit more about that. I mean, what do you think this one victory at this really small university in New Hampshire, what does that mean for this larger fight, really, over the future of women’s sports?
Denny: Well, I think it’s a starting point, certainly at the college athletic level. I think at the high school level, we’ve also seen the resolution of the complaint against the Connecticut State Athletic Association and the high schools, but understand that in our case what the resolution was, that the university agreed and submitted to the ruling, but they’re not happy about it. Right?
And they think that they should be able to continue their policy because the NCAA has that policy. We have a sister complaint, I’ll call it, with the University of Montana for a similar situation that just occurred this year with an individual in track again that won the Big Sky Conference championship in the mile.
Again, similar facts. Within three years, this individual had competed on the men’s team and then made the transition to compete on the women’s team. So, we’re hoping that the resolution of that complaint might compatibly provide the recognition of that under civil rights law, Title IX at the federal level, any college or university that receives federal financial assistance from the government—and frankly, that’s pretty much every college in America, whether it comes through student financial aid, where it comes through research or any kind of other contracts, and grants—that they have a responsibility to preserve the original intent of Title IX that is based on biological sex, not on gender identity.
Allen: So, obviously, I mean, you all are still in the thick of this. You have this other situation that’s pending. Do you think that this all ultimately will be an issue that may end up rising to the level of the Supreme Court?
Denny: It’s possible. I think it’s really interesting to recognize what happened with the Bostock versus Clayton County case, which did extend protections based on transgender status in the employment context.
Ruth Bader Ginsburg, Justice Ruth Bader Ginsburg, asked during the oral arguments whether or not this case would apply in the case of Title IX. She asked that to the plaintiffs or the defendants, I think in that case, and they said, “No, that that’s a separate situation. Title IX is a separate law on this and is sex-based.”
And so, I think that there’s already been a signal from the Supreme Court in this case. I mean, I think it’s up for debate and that we’re seeing some courts take the Bostock versus Clayton County result and interpret it to Title IX.
I think that the administration who’s running the federal government maybe will have a role to say in this, because this administration clearly made a very definitive analysis that was based on the law and precedent that Title IX must be based on biological sex.
We think that’s really secure in some regard, but then, who knows if we have a different administration, they might go and just reinterpret the law. I think that would then create a court challenge that could make it to the Supreme Court as well.
So, I think the courts are definitely in the middle of this right now. They are already at the state level and will continue to be, and the Supreme Court may need to make a ruling of that as well in the future.
Allen: And do you have a sense across America of how many, whether it be high schools or universities right now have policies that say “Yes, if a biological male comes to us and says, ‘I identify as a female,’ we will allow them to compete in women’s sports.”
Or is that something that we’ve repeatedly seen that when those situations happen that then universities decide, “OK, with this specific case, we will take this course of action or this course of action.”
Denny: Yeah. Some may have definitive policies. Others may just be, like you said, if confronted. I don’t have data on that, but what I will tell you is that the NCAA … all of these colleges and universities, whether it’s Division I, II, and III, most associate with that organization their policy since that was established in 2011.
And I should say that, again, that set a lot in motion here even at that point, does allow for trans inclusion based on gender identity for athletes in categories of women’s sports.
So, the problem here is that we’re calling this female athletics. We’re calling it women’s sports. Our argument is against the institutions, against the institutional sexism that’s being redefined here. Athletes are playing by the rules here, the rules that have been set.
And so, we do think that it’s an issue of policy. It’s an issue of law. It’s an issue of civil rights protections for women. And we hope that that is going to prevail and that the NCAA, which is currently reviewing its policy, is going to see this result, what happened with Franklin Pierce University and recognize that they’re on the wrong side of this issue right now, because they’re forcing universities in many cases by having a policy that they do to essentially violate federal law.
Allen: Have you spoken with some of these women who have been forced to compete alongside or with biological men?
Denny: Well, we’ve talked with Selina Soule and some of her teammates. I haven’t talked to the college athletes.
There are cases right now pending, one in Idaho and others that are actually being represented with athletes who have experienced this. But I would say that one of the things that got us motivated into this as an organization is a call from a mother in Georgia who had called the Women’s Sports Foundation, who called the National Organization for Women explaining the experience that her daughter was having, an experience like this competing on an unfair playing field with somebody that was of the opposite sex.
And she said, “You’re the only women’s rights organization that’s listening to what I have to say. My daughter came to me and said, ‘Mom, if this is the way it’s going to be, what’s the point?'”
And that kind of defeatism that young girls are already experiencing on the playing field is the thing that we have to stop, because their opportunities for the future, it’s so much of leadership and ability and success have come through college and athletics, not just at the college level, but at the high school level all the way down.
And that’s why it’s so important that we preserve the opportunity for girls to play on a fair playing field against athletes of the same sex, and that’s what we’re fighting for.
Allen: I love it. Yes. So good. No, truly appreciate you all and how you are just really persisting on this issue because it’s so, so critical. I want to bring up, there is a great way right now that women can [get] involved and that can be making their voice known in support of women’s sports.
Can you just share with us a little bit about how we can be getting involved?
Denny: I don’t know if you’re referring to what’s happening with Selina’s Run right now, because we are in the middle of it this week, and what’s … so exciting is Save Women’s Sports, which was founded by Beth Stelzer, who [has] experiences as a USA powerlifter in competition. And it sort of spurred her on to say, “I’ve got to fight for the rights of women in sports and female athletes.”
And so, one of the projects that they’re doing that’s underway right now is Selina’s Run. It’s what we’re calling the first annual, and you can participate in any number of ways. It’s a virtual marathon or 1K, 2K, 5K, 10K, whatever you want to do.
You can go to savewomenssports.com. You can sign up, even just as support and be a cheerleader, which is what I did. And so, what we’re trying to do is raise awareness through this project of the importance of standing up for female athletes.
And one of the things that just happened in the kickoff was a woman ran with the Save Women’s Sports flag, an entire marathon in front of the NCAA headquarters, around and around the headquarters in Indianapolis, Indiana, to show our concern about what’s happening in women’s sports, and also to say, “This is why you need to pay attention. There are women out there who are fighting for their rights to fair play.”
And so that kicked off. If you go to the website, you’ll see some coverage of that run that happened over the weekend, marathon. And then you can join in to be a part of this effort and show your support.
Allen: Wow. So exciting. I love it, and I love that it’s going to be an annual thing. We’ll be sure to put the link in the show notes today for the Save Women’s Sports website so you can find out more and find out how you can get involved.
But before we let you go, I want to ask, how can our listeners follow your work and the work of Concerned Women for America on this issue?
Denny: Sure. Well, if you go to concernedwomen.org, in our current topics, we have a “standing with female athletes” tab that’s trying to keep up to date on all the activity and action that’s occurring.
We are working with a broad partnership across the spectrum. I mean, it’s not political, it’s not, in any regard. We’re joined together. We have different perspectives on different issues, but for a singular cause, which is to ensure that Title IX is preserved for female athletes.
And so, do join us, concernedwomen.org, to follow us there. We’ll hope to have more good news in the future. We are grateful to the Department of Education for standing with us in this. We hope that they can continue to push forward with some of our complaints.
We also would suggest that you let your senators and House members know to support the Protect Women and Girls in Sports Act. That’s been introduced in both the House and the Senate, and there’s a way to take action with that through our website as well.
Allen: Fantastic. Doreen, thank you so much for your work on this critical issue, and we just really appreciate you joining the show today.
Denny: Thanks for having me.