Transgender Legal Issues: A Commonsense Approach

Sex still matters, according to Professor Doriane Coleman of Duke Law in her thoughtful and fair-minded new book.

(via Getty Images)

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A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The footnotes contain material that did not appear in the Bloomberg Law version of the piece, which you can think of as bonus content for Original Jurisdiction subscribers.

Should transgender athletes be allowed to compete in girls’ and women’s sports? Should transgender minors be able to access gender-affirming care? These highly contentious questions are the subject of litigation across the country—and will eventually make their way to the U.S. Supreme Court.¹

The laws at issue—such as Title VII, for employment, and Title IX, for educational programs or activities receiving federal financial assistance—prohibit discrimination on the basis or because of “sex.” To resolve issues arising under these laws, lawyers and judges need to understand the meaning of “sex.”

In 2024, defining sex is controversial. Doriane Coleman, a professor at Duke Law School, tackles this topic in a thoughtful and fair-minded new book, On Sex and Gender: A Commonsense Approach, released this week.

Coleman focuses her interdisciplinary scholarship on gender and sex issues in medicine, sports, and law. In an interview last week, we began by talking about “sex” versus “gender.” According to Coleman, sex refers to “the biological concept—our physical bodies, as male or female”—and in U.S. law, sex generally refers to biological sex as well.

In contrast, in the U.S. today, gender—which originally started off as synonymous with sex, and remains that way in many parts of the world—focuses on the social rather than the biological. Coleman said that gender includes norms, roles, relationships, and other concepts that might be described as “socially constructed.” She added that some states have recently redefined sex in response to lobbying efforts by trans-rights organizations, “retiring the established focus on the male/female binary and the whole body or ‘organism’ in favor of gender.”

Coleman opposes efforts to eliminate the concept of biological sex or to replace it with gender. She instead argues that when developing laws and policies, legislators and policymakers need to acknowledge that sex is real; that an evidence-based sense of sex-based differences should control, not one based on misconceptions or stereotypes; and that the growing amount of research into sex differences must be applied in non-sexist ways.²

Not every acknowledgment of sex is sexist. Not every recognition of sex-based difference in the law constitutes invidious sex discrimination. And a desire to push back on these misconceptions is part of what led Coleman to write her book.

One of her central tenets in On Sex and Gender is that society, instead of being “sex-blind,” needs to be “sex-smart.” She draws many of her examples from the field of medicine. As Coleman told me, “We all know that sex matters when it comes to the way our bodies are, how they function and sometimes don’t function, and how they age.”

Failing to recognize sex-based medical differences—which for decades meant treating female patients using research derived from males—leads to worse outcomes, in terms of both medical outcomes for individual patients and public-health outcomes for society. What’s good for the goose isn’t always good for the gander.³

What does it mean to be sex-smart when it comes to transgender athletes in girls’ and women’s sports? The issue resonates strongly for Coleman, a champion runner who competed at the collegiate and national levels before going to law school.

And in the athletic context, according to Coleman, being sex-smart requires recognizing the undeniable advantages that post-puberty male physiology and hormones provide. So elite sports, where the focus is on competition and selectivity, should be classified by sex, full stop. If you have been through male puberty, you should not be allowed to participate as a woman in Division I college sports, national competitions, and the Olympics, in Coleman’s view.⁴

Outside the elite context, however, Coleman doesn’t have a bright-line rule. Developing a sensible policy requires looking at the specific sports program in question, figuring out its institutional goals, and evaluating how much sex matters to fulfilling those goals. For an after-school sports program focused mainly on advancing physical fitness and teaching teamwork, trans kids should be allowed to play with the groups that match their gender identity.

But the answer might be different when it comes to the statewide championship in a high-school varsity sport, where the focus is more on competition rather than health and well-being (and athletic scholarships, like the track scholarship that sent Coleman to college, might be on the line). As Coleman writes in her book, “a male-bodied kid shouldn’t be the girls’ state champion.”

What about gender-affirming care for minors? Coleman, who describes her own politics as liberal, again stakes out a moderate position, rejecting the extremes of left and right. She doesn’t support total bans on all gender-affirming care for minors, but she also doesn’t support automatically and immediately prescribing hormones or surgery for all potentially transgender kids.

Instead of proposing specific rules—e.g., no puberty blockers before age X, no surgery before age Y—Coleman offers a general framework for approaching the issue. She believes transgender pediatric care should be more like pediatric medical care generally: evidence-based, focused on the whole child, and respectful and compassionate.

Coleman contends that the voices currently dominating this debate, from both the right and the left, have caused transgender pediatric care to fall short by these metrics. As she told me, “What I have found bizarre and unsettling about pediatric trans care is the extent to which it has been politicized, by both trans advocates and the religious right.”⁵

And the political controversies surrounding transgender rights are unfortunately creating more heat than light, making it difficult to have reasoned and informed debate about the topic. Coleman herself has been branded an “anti-transgender activist” and accused of “preach[ing] hateful rhetoric that denies the existence of trans women”—which she strongly denies.

In her book, Coleman argues that transgender employees should be protected against workplace discrimination; she supports the right of transgender adults to access gender-affirming care; and she uses transgender people’s preferred pronouns. She simply doesn’t believe in eliminating biological sex as a concept and replacing it with gender—and this view, which polling suggests is held by 60 percent of Americans, is hardly radical.⁶

At the end of the day, transgender legal issues are complex and contentious—but not intractable. If we can dial down the politics, on both sides of the aisle, and focus on the evidence, progress can be made.

1. As noted by commentators across the ideological spectrum, from Ed Whelan on the right to Ian Millhiser on the left, the Court appears to be avoiding transgender legal issues. But as conflicting rulings start to pile up in the lower courts, the justices will eventually have to step in. They have touched on transgender legal issues in their emergency aka shadow docket—most recently in Labrador v. Poe, in which they allowed Idaho’s ban on gender-transition care for minors to take effect—but there hasn’t been a major SCOTUS case on transgender rights since Bostock v. Clayton County in 2020.

2. As Coleman told me in our interview, she was struck by the tension between (1) recent advances in scientific knowledge of the female body, which have contributed to an increased willingness to discuss women’s health openly and honestly, and (2) the growing movement to deny that biological sex is real. She said this jumped out at her as “an interesting and important collision of two significant developments.”

3. Coleman drew my attention to an editorial in Nature, “Why it’s essential to study sex and gender, even as tensions rise,” which includes this fascinating discussion:

For as long as scientific inquiry has existed, people have mainly studied men or male animals. Even as recently as 2009, only 26 percent of studies using animals included both female and male individuals, according to a review of 10 fields in the biological sciences. This bias has had serious consequences. Between 1997 and 2000, for instance, eight prescription drugs were removed from the U.S. market, because clinical testing had not revealed women’s greater risk of developing health problems after taking the drugs.

For additional thoughts from Coleman on why sex still matters, see her guest posts this week on the Volokh Conspiracy, “What Is ‘Sex’?” and “The Crossroads Moment.”

4. In other words, Coleman does not support any rules allowing transgender-women athletes to compete in women’s sports at the elite level, even if they have been taking hormones for a certain amount of time, have testosterone levels below a certain number, or have had certain gender-affirming surgeries. Based on her study of the scientific and medical evidence, she does not believe such measures can overcome the advantages conferred by having been through male puberty.

5. Coleman shared with me her thoughts on what the right and the left get wrong about sex and gender. She criticized some on the right for “pathologizing gender diversity,” “denying individual liberty and human flourishing to groups of people based on sex or gender,” and “using trans kids as political footballs.” She criticized some on the left for “denying that sex is real”; “privileging gender over sex, when they both matter”; and “trying to take care of trans people by denying the existence of sex, which might not be the best way to accomplish that goal.”

6. More specifically, polling from the Pew Research Center found the following:

• 60 percent of U.S. adults say a person’s gender is determined by their sex assigned at birth;

• 64 percent say they support laws that would protect transgender individuals from discrimination in jobs, housing, and public accommodations; and

• 58 percent favor proposals that would require transgender athletes to compete on teams that match the sex they were assigned at birth.

These positions align with what Coleman describes as her “commonsense approach” to sex and gender.

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