To my knowledge, gender does not currently exist as an explicitly protected class at the U.S. federal level (but it is protected under some local and state law). Gender and sexual orientation protections at the federal level are being read by some federal courts into the language that protects against sex discrimination in employment, education, healthcare, housing, etc. Even if there was agreement that gender is not innate, immutable, or biologically based (there isn’t), that would still not suffice as an argument against adding gender as a protected class. For example, religion and political beliefs are not innate, immutable, or biologically based yet they’re commonly protected under non-discrimination laws.
The issue of gender and sports is interesting but complicated. One must first understand that organized team sports are social and cultural forms that aren’t very old — most of today’s team sports date to the mid/late-nineteenth century. Their creation was an explicit reaction to fear that urban, middle-class life was producing a generation of physically “weak” men who would be unable to defend a nation in a time of war. Terms like “race suicide” were commonly thrown about. Organized team sports were an attempt to masculinize men through encouraging physical development. Those sports weren’t co-ed and there weren’t equivalents for women. So, from the very beginning, organized team sports were highly gendered and sex-segregated practices aimed to ground the social status of men (their “manliness”) in the male body. And the sports that were invented to masculinize these “weak” men catered to the extremes of male physical ability: the strongest, tallest, fastest, etc.
Adding women to sports, or allowing individuals to play on a particular sex-segregated team owing to their gender identity, is not equality. Sports were conceived, and continue to be structured, in sex/gender inequality. Switching around the players doesn’t change the origins or structures of a sport. True equality in sports would require the invention of a sport that does not cater to the physical extremes of either female or male bodies, and which sorts its players by their abilities, rather than their sex or gender. And even though some sports already exist that would fit this bill (equestrian, curling, frisbee golf, etc.) they’re still often sex-segregated for no justifiable reason.
If this subject interests you, I highly recommend the work of USC sociologist Michael Messner, especially his book Taking the Field: Men, Women, and Sports. Brian Pronger’s book The Arena of Masculinity is also eye-opening.
Michael J. Murphy, MA, Ph.D., is Associate Professor of Gender and Sexuality Studies at the University of Illinois. He is the author of many book chapters, and encyclopedia and journal articles. Most recently he edited Living Out Loud: An Introduction to LGBTQ History, Society, and Culture (Routledge, 2019). He lives in St. Louis with his husband.