“But even if they can, should they?”
I asked that question last week in response to President Trump’s executive order on “indoctrination” in public schools. The question asked specifically: Even if federal officials have the constitutional and legal authority to take sides on values-laden education decisions, is it wise to do so?
The question is fully applicable to the president’s new executive order, “Keeping Men out of Women’s Sports,” which weighs in on the question of whether transgender girls should be able to participate in women’s interscholastic sports.
The executive order says they should not and calls on the secretary of education, in coordination with the attorney general, to “take all appropriate action” to ensure that “women’s sports are reserved for women.” It also says that all departments and agencies should, “where appropriate, rescind funding to programs that fail to comply with the policy established by this order.” Finally, at least regarding domestic sports (there is also language about international athletics), the executive order calls for a meeting of “representatives of major athletic organizations and governing bodies, and female athletes harmed by such policies, to promote policies that are fair and safe, in the best interests of female athletes, and consistent with the requirements of Title IX,” as well as a convening of “State Attorneys General to identify best practices in defining and enforcing equal opportunities for women to participate in sports and educate them about stories of women and girls who have been harmed by male participation in women’s sports.”
The concerns of many biologically female athletes are understandable. Biological males tend to have greater size and strength than women, which would give them a significant advantage in many sports. And while there are treatments that can reduce these advantages, it is not clear that they eliminate them. Meanwhile, bathrooms and locker rooms are places of limited privacy in which people may be especially uncomfortable being in the vicinity of someone born of the opposite sex.
The concerns of transgender athletes and allies are also understandable. If you have powerful feelings that your gender is at odds with your biological sex, transitioning might be key to your well-being. Should the government get to override that when it comes to the sports you play?
If you look at this objectively, you can sympathize with both sides and see that this is not a clear case of right and wrong. This ambiguity is reflected in executive action, with Trump taking essentially the opposite approach of the Biden administration, moving from transgender integration being required to prohibit discrimination to its being banned to prohibit discrimination.
With a problem so wicked, as most values-based disputes are, the right federal answer might be to do nothing — let lower levels of government and society make their own policies. This would allow decisions to be made more consistent with the unique problems and character of specific communities and provide a multiplicity of approaches that might reveal solutions no central authority has thought of. It would also help us get closer to a sustainable social equilibrium.
Of course, any level of government imposing one group’s values on others violates liberty, so no government choice of moral “winners” will be ideal. To reach the ideal, we need to ground systems such as education in choice: individual families or students freely deciding what schools they will use, including, for those to whom it matters, based on interscholastic athletics policies. Then, the government does not impose “solutions” to values clashes on anyone; different people can make different athletic arrangements, and a social equilibrium can emerge.