Nos. 24-38 & 24-43 vide 24-44
`
`IN THE
`Supreme Court of the United States
`————
`BRADLEY LITTLE, GOVERNOR OF IDAHO, et al.,
`Petitioners,
`
`v.
`LINDSAY HECOX, et al.,
`Respondents.
`
`————
`WEST VIRGINIA, et al.,
`Petitioners,
`
`v.
`B.P.J. BY HER NEXT FRIEND AND MOTHER,
`HEATHER JACKSON,
`Respondent.
`
`————
`On Petitions for Writs of Certiorari to the
`United States Courts of Appeals
`for the Ninth and Fourth Circuit
`————
`BRIEF OF AMICUS CURIAE
`INDEPENDENT COUNCIL ON WOMEN’S
`SPORT IN SUPPORT OF PETITIONERS
`————
`WILLIAM BOCK III
`Counsel of Record
`KROGER GARDIS AND REGAS, LLP
`111 Monument Circle, Suite 900
`Indianapolis, Indiana 46204
`(317) 777-7412
`wbock@kgrlaw.com
`Counsel for Amicus Curiae
`
`
`
`August 14, 2024
`
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
`
`
`
`IN THE
`Supreme Court of the United States
`————
`BRADLEY LITTLE, GOVERNOR OF IDAHO, et al.,
`Petitioners,
`
`v.
`LINDSAY HECOX, et al.,
`Respondents.
`
`————
`WEST VIRGINIA, et al.,
`Petitioners,
`
`v.
`B.P.J. BY HER NEXT FRIEND AND MOTHER,
`HEATHER JACKSON,
`Respondent.
`
`————
`On Petitions for Writs of Certiorari to the
`United States Courts of Appeals
`for the Ninth and Fourth Circuit
`————
`BRIEF OF AMICUS CURIAE
`INDEPENDENT COUNCIL ON WOMEN’S
`SPORT IN SUPPORT OF PETITIONERS
`————
`WILLIAM BOCK III
`Counsel of Record
`KROGER GARDIS AND REGAS, LLP
`111 Monument Circle, Suite 900
`Indianapolis, Indiana 46204
`(317) 777-7412
`wbock@kgrlaw.com
`Counsel for Amicus Curiae
`
`
`
`August 14, 2024
`
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
`
`
`
`i
`
`TABLE OF CONTENTS
`
`B.
`
`C.
`
`TABLE OF CONTENTS .............................................. i
`TABLE OF AUTHORITIES ....................................... iii
`INTEREST OF AMICUS CURIAE ............................. 1
`SUMMARY OF ARGUMENT ..................................... 1
`ARGUMENT ................................................................ 2
`I.
`Experience of Individual Amici ........................ 2
`A.
`Lauren Bondly, Age-Group National
`Champion Triathlete, U.S. National
`Team Member, Engineer ....................... 2
`Jennifer Sey, U.S. National Champion
`Gymnast, U.S. National Team Member
`First Female Global Brand President at
`Levi Strauss & Co., Producer of Emmy
`Award Winning Documentary on Abuse
`of U.S. Gymnasts.................................... 5
`Janel Jorgensen McArdle, Olympic
`Silver Medalist, Chief Operating Officer
`Swim Across America ............................ 8
`D. Marshi Smith, NCAA Champion,
`Medical Device Sales Representative,
`ICONS Co-Founder .............................. 12
`is a Biological Fact and Athletic
`Sex
`Performance is Tied Directly to Sex ............... 14
`A.
`Biological Sex is the Dominant Factor
`Influencing Sport Performance ........... 14
`B. Male Sport Performance Advantage is
`Clearly Apparent at Every Age, Even
`Pre-Puberty .......................................... 17
`1.
`Higher Androgen Levels in Male
`Infants ........................................ 18
`
`II.
`
`
`
`2.
`
`3.
`
`ii
`
`Differences in Pre-Pubertal
`Skeletal Size and Strength ....... 21
`Male-Female Differences Elude
`Complete Description in any
`Space Limited Survey ............... 21
`C. Male Advantage Exists Even After
`Attempts to Suppress Testosterone
`Levels .................................................... 22
`III. Sex Separation is Essential to Preserving
`Female Opportunities in Sport ...................... 23
`A.
`A Category for Female Athletes Based
`on Sex is How Women Participate in
`Sport Equally to Men ........................... 23
`B. Without Protection of the Girl’s
`Category Girls Will Drop Out of
`Competitive Sport ................................ 25
`Requiring Sport to Accept Eligibility
`Rules Not Based on Objective Criteria
`Harms Both Women and Sport ........... 26
`CONCLUSION .......................................................... 27
`
`
`C.
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
`Cases
`A.M. by E.M. v. Indianapolis Pub. Sch.,
`617 F.Supp.3d 950 (S.D. Ind. 2022) ............ 18-20, 22
`Statutes
`Title IX of the 1972 Education Amendments, Pub. L.
`92-318, Title IX, 20 U.S.C. § 1681 et seq
`................................................................. 2, 6-7, 23-25
`Rules
`Sup. Ct. R. 37 ............................................................... 1
`Sup. Ct. R. 37.2(a)........................................................ 1
`Sup. Ct. R. 37.6 ............................................................ 1
`Other Authorities
`Becker et al., 2015. Hormonal ‘minipuberty’
`influences the somatic development of boys but not
`of girls up to the age of 6 years. Clinical
`Endocrinology 83: 694-701 .................................... 20
`Bidlingmaier, F., Dorr, H.G., Eisenmenger, W.,
`Kuhnle, U., Knorr, D., “Contribution of the adrenal
`gland to the production of androstenedione and
`testosterone during the first two years of life,” J
`Clin Endocrinol Metab. 1986 62:331–335 ............. 19
`Boogers et al., 2022. Trans girls grow tall: adult
`height is unaffected by GnRH analogue and
`estradiol treatment. Journal of Clinical
`Endocrinology and Metabolism ............................. 23
`British Journal of Sports Medicine 55(15): 865-872 23
`
`
`
`iv
`
`Catley MJ, Tomkinson GR. Normative health-related
`fitness values for children: analysis of 85347 test
`results on 9-17-year-old Australians since 1985. Br
`J Sports Med. 2013 Jan;47(2):98-108 .................... 17
`Gilsanz, V., Kovanlikaya, A., Costin, G., Roe, T.F.,
`Sayre, J., Kaufman F., “Differential Effect of
`Gender on the Sizes of the Bones in the Axial and
`Appendicular Skeletons,” Journ. of Clinical
`Endocrin. & Metabolism, Volume 82, Issue 5, 1
`May 1997, Pa .......................................................... 21
`Handelsman, D.J., Hirschberg, A.L., Bermon, S.,
`“Circulating Testosterone as the Hormonal Basis of
`Sex Differences in Athletic Performance,” Endocr.
`Rev. 2018 Oct; 39(5): 803-829 .......................... 15, 26
`Hilton, E.N., Lundberg, T.R., “Transgender Women
`in the Female Category of Sport: Perspectives on
`Testosterone Suppression and Performance
`Advantage,” Sports Medicine (2021) 51:199-214,
`p. 199 (hereafter “Hilton & Lundberg, Female
`Category of Sport”) ................................................. 15
`Kiviranta et al., 2016. Transient Postnatal Gonadal
`Activation and Growth Velocity in Infancy.
`Pediatrics 138(1): e20153561 ................................. 20
`Lanciotti L, Cofini M, Leonardi A, Penta L, Esposito
`S. Up-To-Date Review About Minipuberty and
`Overview on Hypothalamic-Pituitary-Gonadal Axis
`Activation in Fetal and Neonatal Life. Front
`Endocrinol (Lausanne). 2018 Jul 23;9:410 ............ 20
`Pang, S., Levine, L.S., Chow, D., Sagiani, F., Saenger,
`P., New, M.I., “Dihydrostestosterone and its
`relationship to testosterone in infancy and
`childhood,” J Clin Endocrinol Metab. 1979 48:821–
`826 ........................................................................... 20
`
`
`
`v
`
`Pedersen, 1980. Ultrasound evidence of sexual
`difference in fetal size in first trimester. British
`Medical Journal 281(6250): 1253 .......................... 19
`Schwartzler et al., 2004. Sex-specific antenatal
`reference growth charts for uncomplicated
`singleton pregnancies at 15–40 weeks of gestation.
`Ultrasound in Obstetrics and Gynaecology 23(1):
`23-29 ....................................................................... 19
`Tambalis KD, Panagiotakos DB, Psarra G,
`Daskalakis S, Kavouras SA, Geladas N,
`Tokmakidis S, Sidossis LS. Physical fitness
`normative values for 6-18-year-old Greek boys and
`girls, using the empirical distribution and the
`lambda, mu, and sigma statistical ........................ 18
`
`
`
`
`
`
`
`
`
`1
`
`INTEREST OF AMICUS CURIAE1
`
`
`
`Amici are the Independent Council on Women’s
`Sport (ICONS) and its members identified in Section I
`below. ICONS is a network and advocacy group
`comprised of current and former collegiate and
`professional women athletes, their families and
`supporters who believe the next generation of women
`and girls deserve the chance to be champions and to
`see an expanded and celebrated world of women’s
`sports. Reflecting their experience, amici have an
`interest in the preservation of the female category in
`sport.
`
`
`SUMMARY OF ARGUMENT
`
`Recognizing biological differences between the
`sexes and protecting women’s spaces from male
`intrusion are foundational for women to succeed in
`sports and in life. It is the experience of amici that
`legal protections giving women the opportunity to take
`part in and succeed in sport are essential to the
`advancement of women and depend on the law’s basic
`ability to distinguish between women and men and
`courts’ capacity to evaluate, compare, and equalize the
`opportunities of the former in comparison to those of
`the latter.
`
`
`
`1 Rule 37 statement: The parties were notified of the filing of this
`brief more than 10 days before its filing. See Sup. Ct. R. 37.2(a).
`No party’s counsel authored any of this brief; amici alone funded
`its preparation and submission. See Sup. Ct. R. 37.6.
`
`
`
`
`2
`
`In contrast, equating “gender identity” to “sex”
`in Title IX of the 1972 Education Amendments, Pub.
`L. 92-318, Title IX, 20 U.S.C. § 1681 et seq. (“Title IX”)
`and the Equal Protection Clause to the U.S.
`Constitution will diminish irreplaceable and life
`changing opportunities and degrade legal protections
`for women and girls. To prevent these harms this
`Court should grant the Petitions for Writs of
`Certiorari in Little v. Hecox, No. 24-38 and in West
`Virginia v. B.P.J., No. 24-43 Vide 24-44 and reverse
`the decisions of the Fourth and Ninth Circuits.
`
`
`ARGUMENT
`
`Experience of Individual Amici
`
`I.
`
`
`Sex separated sport is necessary for girls to
`develop a healthy view of their own bodies. For many
`girls, lessons learned in sport are vital to overcoming
`obstacles and succeeding in life. Yet, due to male
`biological advantages, failing to protect the girls’
`category will cause girls to leave sport. Therefore,
`protecting sex separation
`in girls’ sports
`is
`foundational to the health, happiness, and success of
`future generations of women.
`
`A.
`
`Lauren Bondly, Age-Group National
`Champion Triathlete, U.S. National
`Team Member, Engineer
`
`Lauren Bondly explains why participation in
`sex separated sport is vital to women developing a
`healthy view of their own bodies:
`
`
`
`
`
`
`
`
`3
`
`“It is impossible for me to overstate the
`importance competitive sport has played in my life. I
`can say without risk of hyperbole it saved my life and
`career.
`
`
`“Like many young women, I suffered from
`anorexia in my late teens and early twenties. I began
`running to burn calories and create another means to
`control my compulsive weight loss. One day I entered
`a local 5k road race and in part because I had given
`myself permission to eat a full meal the night before –
`just for this special occasion – I ended up winning my
`age group. This was the turning point in my illness.
`
`
`“Anorexia deceives sufferers into believing it is
`virtuous to be hungry, that each lower number on the
`scale is an accomplishment – no matter how low it
`goes. But at that race, I had achieved a real
`accomplishment more powerful than the fake self-
`esteem boosts anorexia offered. I looked at the
`women’s podium, at strong, incredible female bodies
`and realized they were not all that different from
`mine. All I had to do was get healthy, redirect my
`obsessive tendencies and one day that could be me on
`the overall women’s podium. Now on occasion – it is.
`Through sport, I re-learned my relationship with food
`and my body; I don't know if I would have otherwise.
`
`
`“Fast forward to graduation from college with a
`degree in engineering, I soon learned why my chosen
`career has the reputation it does. Years at my first
`company were full of unwanted sexual advances and
`some of the most inappropriate comments imaginable
`until I left for a company where I was initially treated
`
`
`
`
`
`4
`
`like a secretary instead of an engineer. In the middle
`of that period, I switched to triathlon needing
`something more challenging to convince myself of my
`capability in the face of so many claiming I was
`incapable. If I did not have that one outlet where I
`could count on having a fair chance to succeed, I would
`have thrown my diploma in the trash and quit
`engineering. Today I am happy and satisfied with my
`career, but it would have been unbearable to continue
`facing unfairness and humiliation day after day in
`those earlier years if I had not had competitive sport
`to balance it out.
`
`
`“Sport is not just a game. I have witnessed the
`desire to be the best motivate women to quit alcohol
`and drugs, to leave abusive relationships, and like me,
`to overcome mental health issues and foster the
`fortitude to endure and overcome injustice.
`
`
`Sport is too important to turn it into a tool that
`teaches girls to get comfortable being on the receiving
`end of injustice, or that hard work and overcoming
`adversity is futile. We cannot replace the strong
`female bodies on the women’s podium with impossibly
`unattainable male bodies and pretend that will have
`no effect on young girls and women who need strong
`female role models.
`
`
`Finally, sport must be about fairness. If women
`do not deserve and receive fairness in the one place
`where ‘fair play’ is supposed to be ensured and upheld,
`what chance do women have in business or elsewhere
`where women are treated unfairly, and are told to, and
`expected to, just accept it?”
`
`
`
`
`
`5
`
`
`Sey, U.S. National
`Jennifer
`Champion Gymnast, U.S. National
`Team Member First Female Global
`Brand President at Levi Strauss &
`Co., Producer of Emmy Award
`Winning Documentary on Abuse of
`U.S. Gymnasts
`
`
`
`B.
`
`
`
`Sport is integral to girls overcoming obstacles
`and succeeding in life. From age 6 Jennifer Sey
`pursued her dream of competing on the U.S.
`gymnastics
`team
`and winning
`a national
`championship, a goal she realized after more than 10
`years of dedication and hard work.
`
`
`The determination developed as an athlete
`fueled a pioneering career in business and led her to
`stand up for the rights of marginalized individuals.
`Jennifer began working as an entry level employee at
`Levi Strauss & Co. in 1999, eventually becoming chief
`marketing officer and then the first female brand
`president, never losing focus on a desire to use her
`opportunities as a platform to help others.
`
`
`Jennifer experienced abusive training practices
`as an elite gymnast which she wrote about in her 2009
`autobiography, Chalked Up, a book other gymnasts
`would point to as giving them courage to speak up. In
`2017 Jennifer became an executive co-sponsor of the
`first black employees’ group at Levi’s, engaging the
`company in improving racial diversity. She was a
`producer of Athlete A, a documentary on the Larry
`Nassar scandal at USA Gymnastics which won an
`
`
`
`
`
`6
`
`Emmy as the 2020 Outstanding Investigative
`Documentary.2
`
`
`In 2021 Jennifer told NBC commentator and
`Know Your Value founder Mika Brzezinski, “I suffered
`from imposter syndrome probably up until about last
`year. . . I went to Stanford coming out of gymnastics. I
`was convinced that at any moment, somebody was
`going to pop out from behind the curtain and tell me I
`didn’t belong. A lot of women . . . have this.”3 Jennifer
`explained her experiences in competitive gymnastics
`helped find her voice and shape her leadership style,
`telling Brzezinski, “I’ve learned that your life and
`journey is not a straight line, and you will get knocked
`down. When you advocate for yourself, it’s not always
`going to go the way that you want. But you keep
`going.”4
`
`
`Jennifer’s path to career success flowed directly
`from lessons learned as a female athlete, and she is
`concerned that allowing males to compete in the
`female category of sport will deprive girls of
`opportunities to compete on a level playing field. She
`explains:
`
`
`“I started gymnastics in 1975, at 6 years old,
`just three years after the passage of Title IX. In 1976
`
`
`
`2 See
`https://www.indystar.com/story/news/local/2021/10/01/athlete-a-
`wins-emmy-outstanding-investigative-
`documentary/5945215001/.
`3 See https://www.nbcnews.com/know-your-value/feature/how-i-
`went-elite-gymnast-global-brand-president-levi-s-ncna1272382/.
`4 Id.
`
`
`
`
`7
`
`Nadia Comaneci won the Olympics. Accelerated by
`the passage of Title IX, gyms started popping up all
`over the United States – and active little girls like me
`took to them in droves. With the promise of college
`scholarships, sport – and gymnastics in particular –
`gave little girls a chance to thrive.
`
`
`“By age 10 I made my first National Team. And
`in 1986, just 9 months after fracturing my femur at
`the World Championships, I became the National
`Champion. Gymnastics taught me the values of
`perseverance, hard work, and discipline. Ultimately, I
`learned that never giving up meant I could achieve
`mastery; I learned applying my passion for sport could
`make me a champion; and I learned directing my
`commitment could result in a hard-won sense of
`personal fulfillment.
`
`
`“After leaving competitive sport, I applied these
`lessons to my career in business. I started at Levi’s in
`1999 as an entry level assistant. Corporate America
`was then rife with sexism and sexual harassment. I
`put my head down and worked hard. I was highly
`coachable, and I never gave up, always wanting to get
`better at my craft. Ultimately, in 2020 I became Levi’s
`first female Global Brand President after years as an
`award-winning Chief Marketing Officer.
`
`“My time as an elite athlete was invaluable,
`honing the perseverance required to succeed in
`business. Knowing I could compete on an even playing
`field against other fiercely dedicated girls and succeed
`amidst injuries, losses, and other setbacks, shaped me,
`and enabled my success as a woman in business.
`
`
`
`
`
`
`
`8
`
`
`“Recent developments in U.S. sport cause me
`concern. I see the opportunities of fiercely dedicated
`girls and young women to compete on a level playing
`field being sacrificed to a view that says the
`opportunities of women must take second place to the
`feelings of males seeking validation through playing
`women’s sport. The idea that the rights of girls must
`be sacrificed to make others feel better about
`themselves must be fought vigorously. If it is not, it
`will lead directly to the feelings of inadequacy and
`helplessness that plague young girls and against
`which I have been fighting all my life.”
`
`
`C.
`
`Janel Jorgensen McArdle, Olympic
`Silver Medalist, Chief Operating
`Officer Swim Across America
`
`
`
`Janel Jorgensen McArdle knows that protecting
`sex separated sport is essential to girls remaining in
`sport. She speaks from the experiences of a life at the
`highest levels of competitive sport and sport-based
`philanthropy and as a woman heading a national
`organization with thousands of volunteers that has
`raised over $100 million
`for cancer research,
`prevention, and treatment.
`
`
`Janel first faced unfair competition when she
`reached the pinnacle of her sport, competing against
`the East Germans at the Seoul Olympics in 1988. She
`explains, “We all knew what was happening and we
`knew we were robbed of a gold medal we deserved. We
`were told to be silent, to not risk being called poor
`losers. Now, decades later, it’s well understood the
`
`
`
`
`
`9
`
`East Germans were doping, and East German victory
`was tainted.
`
`
`“Testosterone and androgenizing drugs were
`given in large quantities to East German athletes,
`creating an unfair advantage clean athletes could not
`overcome. The East German scandal was enormous
`and remains a black mark on the history of women’s
`sport. Yet, the scandal we are creating in women’s
`sports today is even worse. I had the benefit of sex-
`testing, a cheek swab to verify my biology. I knew with
`full confidence the athletes I was racing were women,
`even if some were artificially enhanced with male
`androgens.
`
`
`“However, despite every possible effort to
`enhance their performance with drugs, East German
`women could not have qualified to compete with the
`men. But now, by allowing male bodies in women’s
`sport we are taking unfairness to another level, not
`even hiding the intent to make women face an
`insurmountable physical obstacle, barely debating
`how much unfairness women in sport will face.
`
`
`“Today, we do not ask women to compete
`against women who have taken drugs, we ask women
`to compete against the biological advantage of being
`born male that even women on drugs could not
`overcome. There is no excuse for asking female
`athletes, of any age, to compete with less talented
`versions of male biology.
`
`
`“I left the Olympics with a silver medal at 17
`and continued my swimming career, winning 17
`
`
`
`
`
`10
`
`National Championships at Stanford, wrapping up a
`career
`that gave me amazing opportunities,
`friendships, and skills. Then, I went to work in the
`corporate world, and 13 years later, with my father
`facing cancer, an opportunity came to lead Swim
`Across America, a non-profit dedicated to raising
`money and awareness for cancer research, treatment,
`and prevention.
`
`
`“Working at Swim Across America has been a
`way that a sport so impactful and important in
`shaping my life has helped me benefit the lives of
`others. I have been involved with Swim Across
`America for over 35 years in many roles: Olympian,
`swimmer, board member, COO, and CEO, and
`repeatedly seen how my sport of swimming has
`changed, and in some cases saved, people’s lives.
`
`
`“Yet, for as much as I love swimming, I know
`that if I had been faced with gross unfairness in my
`sport early on or repeatedly, I would not have
`continued. If I stood on the block next to a male body
`that I knew I could not beat, the frustration would
`have forced me to quit. Had that happened my life may
`have had
`fewer meaningful and
`significant
`opportunities to impact others.
`
`
`“I want sport for girls growing up today to be
`what it was for me until I got to the Olympics . . . an
`amazing environment where I learned confidence,
`perseverance, and grit. I know what it feels like to step
`up to the starting block and know that even if I were
`given a head start, I couldn’t compete against the
`illegal drugs pulsing through my competitor’s veins. I
`
`
`
`
`
`11
`
`know what it feels like to be a 17-year-old girl standing
`on the Olympic podium holding the wrong-colored
`medal because it wasn’t a fair race. I don’t want other
`young girls and women to endure similar experiences,
`but I see that they are, and with increasing regularity.
`There is no excuse for perpetuating this injustice. Our
`girls deserve fair and equal opportunities in sports.
`
`
`“After all the progress women have made in
`recent decades, I do not understand why so many
`people are turning a blind eye to injustice and to the
`history of what women have fought for. Of course, boys
`and men facing gender dysphoria should be cared for,
`however, allowing them to compete in the women’s
`category only unjustly shifts pain and unfairness to
`girls and women who will throughout their lives in
`sport face a deficit far greater than I faced in the
`starting blocks in Seoul when lining up against the
`East Germans.
`
`
`“Some say sport only needs to be fair at the
`highest, most elite levels. I emphatically disagree.
`Girls need to know they don’t have to reach elite levels
`to be worthy of fair treatment and fair competition. If
`rules and laws do not clearly convey that girls deserve
`fair sports at every level, many will forsake athletic
`opportunities. But we also risk something even worse,
`adults communicating to girls that fairness is not
`really a concept that applies to them.”
`
`
`
`
`
`
`12
`
`D. Marshi Smith, NCAA Champion,
`Medical
`Device
`Sales
`Representative, ICONS Co-Founder
`
`
`
`Marshi Smith explains why protecting girls’
`sport is essential to future generations of women – “I
`started my career in sales shortly after graduating
`from the University of Arizona. My Olympic dreams
`had been torn away from me by a training-induced,
`shoulder injury the year after winning a NCAA
`backstroke
`title. Heartbroken, I
`found myself
`suddenly sitting across a desk from managers asking
`me to convince them to hire me with exactly zero hours
`of work experience on my resume. I stepped into the
`interview underqualified on my resume but extremely
`confident in my own ability to learn and thrive. When
`the management team asked me about my work
`experience, I told them the story of my junior year on
`the swim team.
`
`
`“At the start of that season, I told myself and
`my coach I had decided to win an NCAA title. I wrote
`a goal sheet outlining the race to achieve my goal time,
`52.82 a time I chose to break my school record by .01
`seconds. I described my devotion to reaching that goal
`from swimming sets before dawn to running hundreds
`of grueling stadium steps and always drifting to sleep
`believing
`my
`dream
`was
`achievable…52.82…52.82…52.82. I
`talked about
`walking onto
`the pool deck at
`the NCAA
`Championships that year knowing nobody could
`possibly want to win more than I did. And then I did.
`I touched the wall in 52.82 exactly to the hundredth of
`a second. I broke my school record. I won a national
`
`
`
`
`
`13
`
`title. The manager hired me on the spot.
`
`
`“At the time I was one of only two women
`working for the company in a national sales position.
`I stood on the national stage as a top sales
`representative several times in my career, often as one
`of very few women. They say, ‘a picture is worth a
`thousand words.’ Below is a picture of the 2017
`National Sales Meeting ‘Territory of the Year’ Award
`winners from my company. It won’t be difficult for the
`reader to pick me out in the picture. Yet, I know my
`life would not have led to that stage had men been
`allowed to compete against me in sport.
`
`
`“Although my goal has changed, I have equal
`passion and devotion today to what I had on my college
`pool deck. My new goal sheet commits to preserving
`the equal chance for my seven-year-old daughter to see
`herself as a champion. She has just begun her swim
`lessons and deserves the same opportunity to
`participate and win in her sport that my son does. I
`cannot sit by and accept that I may have been one of
`the last generations of women with the right to fair
`treatment and equal opportunity in sport. This
`generation and the next deserve to tell the stories that
`launch careers.
`
`
`The women’s category in sport has tremendous
`value for women. Separating girls from boys is the
`indispensable key to unlocking the transformative
`power of sport to change young girls’ lives. If legal
`decisions throw away that key, it will place the dreams
`of millions of young girls outside their reach and
`communicate that young girls, unlike boys, are not
`
`
`
`
`
`14
`
`deserving full protection even from a law that was
`meant to protect them.”
`
`II.
`
`
`
`
`
`
`Sex is a Biological Fact and Athletic
`Performance is Tied Directly to Sex
`
`A.
`
`Biological Sex is the Dominant
`Factor
`Influencing
`Sport
`Performance
`
`A recent peer reviewed study reports that post
`puberty “the performance gap between males and
`females . . . often amounts to 10–50% depending on
`sport.”5 “Sex is a major factor influencing best
`
`5 Hilton, E.N., Lundberg, T.R., “Transgender Women in the
`Female Category of Sport: Perspectives on Testosterone
`Suppression and Performance Advantage,” Sports Medicine
`(2021) 51:199-214, p. 199 (hereafter “Hilton & Lundberg, Female
`Category of Sport”).
`
`
`
`
`15
`
`performances and world records”6 in Olympic sport. In
`a study of performance by some of the most highly
`trained athletes in the world, researchers evaluated
`82 quantifiable events since the beginning of the
`Olympic era (i.e., from 1896 to 2007). They found men
`outperformed women in all sports with a mean
`difference of 10.0% ± 2.94% between them depending
`upon event.7
`
`
`“There is a clear sex difference in both muscle
`mass and strength even adjusting for sex differences
`in height and weight. On average women have 50% to
`60% of men’s upper arm muscle cross-sectional area
`and 65% to 75% of men’s thigh muscle cross-sectional
`area, and women have 50% to 60% of men’s upper limb
`strength and 60% to 80% of men’s leg strength. Young
`men have on average a skeletal muscle mass of >12 kg
`greater than age-matched women at any given body
`weight.”8 The impact is “an obvious performance
`enhancing effect[.]”9
`
`
`6 Thibault, V., Guillaume, M., Berthelot, G., El Helou, N., Schaal,
`K., Quinquis, L., Nassif, H., Tafflet, M., Escolano, S., Herine, O.,
`Toussaint, J.F., “Women and men in sport performance: The
`gender gap has not evolved since 1983,” Journal of Sports Science
`and Medicine
`(2010) 9, 214-223, p. 214, available at:
`https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3761733/
`7 Id. They also observed many of these timed performances for
`women “coincided with later-published evidence of state-
`institutionalized or individual doping,” suggesting the gender gap
`is actually even larger than the reported statistical differences.
`Id.
`8 Handelsman, D.J., Hirschberg, A.L., Bermon, S., “Circulating
`Testosterone as the Hormonal Basis of Sex Differences in Athletic
`Performance,” Endocr. Rev. 2018 Oct; 39(5): 803-829 (hereafter,
`“Handelsman, et al., Sex Differences in Athletic Performance”).
`9 Id.
`
`
`
`
`
`
`16
`
`
`“[O]n average men are 7% to 8% taller with
`longer, denser, and stronger bones, whereas women
`have shorter humerus and femur cross-sectional areas
`being 65% to 75% and 85%, respectively, those of
`men.”10 The athletic advantages conferred by men’s
`larger and stronger bones includes, “greater leverage
`for muscular limb power exerted in jumping, throwing,
`or other explosive power activities” and greater male
`protection from stress fractures.11
`
`
`The sex-based performance gap is not limited to
`certain sports but applies generally to most skills
`necessary for success in sport. The following chart
`illustrates male advantage across a wide group of
`discrete sport skills.
`
`
`from: Hilton & Lundberg, Female
`Reproduced
`Category of Sport p. 202, Fig. 1.
`
`
`
`
`10 Id.
`11 Id.
`
`
`
`
`17
`
`B. Male Sport Performance Advantage
`is Clearly Apparent at Every Age,
`Even Pre-Puberty
`
`
`
`As the foregoing makes clear, the sex-based
`sport performance gap is not just real, it is massive.
`Furthermore, male-female performance differences
`exist from the earliest stages, including in youth
`sports. Study after peer-reviewed study has shown
`clear performance advantages for males in sport pre-
`puberty.12
`
`
`For instance, a comprehensive review of fitness
`data from over 85,000 Australian children aged 9-17
`years showed that compared to 9-year-old females,
`9-year-old males were faster at short sprints (9.8%)
`and one mile (16.6%), could jump 9.5% further from a
`standing position (a test of explosive strength), could
`complete 33% more push-ups in 30 seconds and had a
`13.8% stronger grip.13 A similarly large advantage for
`males was found in a study of Greek children, in which
`6-year-old males, compared to 6-year-old females,
`completed 16.6% more shuttle runs in a given time and
`could jump 9.7% further from a standing position. In
`terms of aerobic endurance capacity, 6–7-year-old
`males were shown to have higher absolute and relative
`
`12 See, e.g., age group standards in USA swimming reflective of
`male advantage at every age, distance and stroke, available at:
`https://www.usaswimming.org/docs/default-
`source/timesdocuments/time-standards/2024/2021-2024-
`national-age-group-motivational-times.pdf.
`13 Catley MJ, Tomkinson GR. Normative health-related fitness
`values for children: analysis of 85347 test results on 9-17-year-
`old Australians since 1985. Br J Sports Med. 2013 Jan;47(2):98-
`108.
`
`
`
`
`18
`
`(to body mass) maximum oxygen uptake than 6–7-
`year-old females.14 Numerous similar peer reviewed
`studies were cited in expert reports of Dr. Tommy
`Lundberg of the Karolinska Institute in Stockholm
`and of Dr. Emma Hilton of the University of
`Manchester, UK, at the injunction phase in the A.M.
`case.15
`
`
`1.
`
`Higher Androgen Levels in
`Male Infants
`
`
`
`The Plaintiffs in the B.P.J. contended that due
`to recent hormone suppression B.P.J. “will develop the
`same changes to bone size, skeletal structure, [and]
`pelvis shape . . . [among other characteristics] that are
`typically experienced by . . . girls who go through a
`typically female puberty.” Fourth Circuit Appellants’
`Brief at 51 of 72. This is wrong as the studies cited
`below make clear. In fact, to fully mitigate the
`performance enhancing effects of testosterone on
`B.P.J. hormone intervention would had to have
`commenced at birth if not in the womb.
`
`
`Differences in average body length (measured
`as head-bottom length) can be detected by ultrasound
`from the first trimester of pregnancy, with males
`
`
`14 Tambalis KD, Panagiotakos DB, Psarra G, Daskalakis S,
`Kavouras SA, Geladas N, Tokmakidis S, Sidossis LS. Physical
`fitness normative values for 6-18-year-old Greek boys and girls,
`using the empirical distribution and the lambda, mu, and sigma
`statistical method. Eur J Sport Sci. 2016
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