Justice Department Filing Against Treating Male-to-Female Transgender Athletes as Women

"Far from being required by Title IX, CIAC's transgender policy is in tension with 'the core of Title IX's purpose'—namely, ensuring that women have an '[e]qual opportunity to participate' in educational programs and activities at covered institutions."

|The Volokh Conspiracy |

From the Justice Department's Statement of Interest filed yesterday in Soule v. Connecticut Ass'n of Schools, Inc.; I expect there'll be a response to it filed, and I'll be glad to blog that as well:

[A.] Title IX requires that "[n]o person in the United States shall, on the basis of sex, … be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. §1681(a); accord 34 C.F.R. § 106.41(a). Title IX's prohibition against sex discrimination extends to athletics operated or sponsored by recipients of federal money. 34 C.F.R. § 106.41. As a result, covered institutions must "provide equal athletic opportunity for members of both sexes." Id. § 106.41(c).

The Connecticut Interscholastic Athletic Conference (CIAC), however, has adopted a policy that requires biological males to compete against biological females—despite the real physiological differences between the sexes—if the male is a transgender individual who publicly identifies with the female gender. CIAC claims that "federal law" requires this state of affairs. CIAC 2019-2020 Handbook (CIAC Handbook), at 55, http://www.casciac.org/pdfs/ ciachandbook_1920.pdf; see also Defs.' Initial Summ. Issues at 7, ECF No. 63. So do the proposed student-intervenors. See Mot. to Intervene at 11, ECF No. 36.

They are incorrect. Title IX and its implementing regulations prohibit discrimination solely "on the basis of sex," not on the basis of transgender status, and therefore neither require nor authorize CIAC's transgender policy. To the contrary, CIAC's construction of Title IX as requiring the participation of students on athletic teams that reflect their gender identity would turn the statute on its head. One of Title IX's core purposes is to ensure that women have an "equal athletic opportunity" to participate in school athletic programs. 34 C.F.R. § 106.41(c); see also Cohen v. Brown Univ., 991 F.2d 888, 897 (1st Cir. 1993) ("Equal opportunity to participate lies at the core of Title IX's purpose."). Schools realize that purpose primarily by establishing separate athletic teams for men and women and by ensuring that those teams are on equal footing. See 34 C.F.R. § 106.41(b)-(c). Because of the physiological differences between men and women, the existence of women's sports teams permits women to participate more fully in athletics than they otherwise could.

Under CIAC's interpretation of Title IX, however, schools may not account for the real physiological differences between men and women. Instead, schools must have certain biological males—namely, those who publicly identify as female—compete against biological females. In so doing, CIAC deprives those women of the single-sex athletic competitions that are one of the marquee accomplishments of Title IX. The United States therefore submits this Statement of Interest to aid the Court in the proper application of Title IX in this case….

[B.] Title IX prohibits "discrimination" in educational programs and activities "on the basis of sex." 20 U.S.C. § 1681(a). Although Title IX includes statute-specific definitions of various terms, "sex" is not one of them. See id. § 1681(c) (defining "educational institution"); id. § 1687 (defining "program or activity" and "program"). Without such a definition, the term "sex" should "be interpreted as taking [its] ordinary, contemporary, common meaning." Sandifer v. United States Steel Corp., 571 U.S. 220, 227 (2014) (citation omitted).

When Congress enacted Title IX in 1972, the "ordinary, contemporary, common meaning" of "sex" was biological sex. In that same year, 1972, the United States explained to the Supreme Court that "sex, like race and national origin, is a visible and immutable biological characteristic," U.S. Br. at *15, Frontiero v. Laird, No. 71-1694, 1972 WL 137566 (U.S. Dec. 27, 1972), and the Court agreed that "sex" is "an immutable characteristic determined solely by the accident of birth," Frontiero v. Richardson, 411 U.S. 677, 686 (1973).

Also during the time period surrounding Title IX's enactment, dictionaries defined "sex" as referring to the physiological distinctions between males and females, and more particularly their reproductive functions. For example, Webster's Third defined "sex" as "one of the two divisions of organic esp. human beings respectively designated male or female," or "the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction." Webster's New International Dictionary 2081 (3d ed. 1968). Other contemporaneous dictionaries defined "sex" similarly. See, e.g., American Heritage Dictionary of the English Language 1187 (1st ed. 1969) ("1. a. The property or quality by which organisms are classified according to their reproductive functions. b. Either of two divisions, designated male and female, of this classification."); The American College Dictionary 1109-10 (1970) ("1. The character of being either male or female  2. The sum of the anatomical and physiological differences with reference to which the male and female are distinguished or the phenomena depending on these differences."); The Random House College Dictionary 1206 (1973) ("1. either the male or female division of a species esp. as differentiated with reference to the reproductive functions. 2. The sum of the structural and functional differences by which male and females are distinguished.").

Other provisions of Title IX employ "sex" as a binary term, and thus provide further confirmation that the prohibition on "sex" discrimination does not extend to discrimination on the basis of transgender status or gender identity. If the term "sex" in Title IX included "gender identity"—which, according to the American Psychiatric Association, may include "an individual's identification as … some category other than male or female," Diagnostic and Statistical Manual of Mental Disorders Fifth Edition 451 (2013) (emphasis added)—then multiple Title IX provisions would make little sense.

Title IX consistently uses "sex" as a binary concept capturing only two categories: male and female. For example, the statute creates an exception for "father-son or mother-daughter activities at an educational institution, but if such activities are provided for students of one sex, opportunities for reasonably comparable activities shall be provided for students of the other sex." 20 U.S.C. § 1681(a)(8) (emphases added). Likewise, Title IX includes a transitional period for an "educational institution which has begun the process of changing from being an institution which admits only students of one sex to being an institution which admits students of both sexes," provided certain criteria are met. Id. § 1681(a)(2) (emphases added). Moreover, Title IX expressly provides that nothing in the statute "shall be construed to prohibit any educational institution … from maintaining separate living facilities for the different sexes." Id. § 1686 (emphasis added). These provisions could not sensibly function if the term "sex" includes "gender identity," which, unlike "sex," may not be limited to two categories.

[C.] Historical context further confirms that Congress used the word "sex" in its ordinary biological sense. "Title IX was enacted in response to evidence of pervasive discrimination against women with respect to educational opportunities, which was documented in hearings held in 1970 by the House Special Subcommittee on Education." McCormick ex rel. McCormick v. School Dist. of Mamaroneck, 370 F.3d 275, 286 (2d Cir. 2004); see also North Haven Bd. of Ed. v. Bell, 456 U.S. 512, 523 n.13 (1982). Against that backdrop, members of Congress voting on Title IX and any politically engaged citizen would have understood the law as directed at eliminating discrimination in education based on biological sex—i.e., unequal treatment of men and women—consistent with the term's ordinary meaning.

Congress's actions in the 48 years following Title IX's enactment confirm that "sex" in this statute does not encompass transgender status. In other statutory contexts, Congress has acted affirmatively to address gender-identity discrimination as a distinct category separate from sex discrimination. For example, when Congress enacted the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, Pub. L. No. 111-84, Div. E., 123 Stat. 2190 (2009), Congress found that the "incidence of violence motivated by the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim poses a serious national problem." 34 U.S.C. § 30501(1) (emphasis added).

Congress accordingly used the Hate Crimes Prevention Act to amend or create several statutory provisions that prohibited or otherwise specifically addressed discrimination based on "gender identity," in addition to discrimination based on "sex" or "gender." See 18 U.S.C. § 249(a)(2)(A) & (c)(4) (prohibiting acts or attempts to cause bodily injury to any person "because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person," and defining "gender identity" as "actual or perceived gender-related characteristics" (emphasis added)); 34 U.S.C. § 30503(a)(1)(C) (regarding federal assistance to state, local, or tribal investigations of crimes "motivated by prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim" (emphasis added)); id. § 30506(2) (construing violent acts motivated by actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of a victim (emphasis added)); id. § 41305(b)(1) (regarding compiling statistics "about crimes that manifest evidence of prejudice based on race, gender and gender identity, religion, disability, sexual orientation, or ethnicity) (emphasis added)).

Similarly, in 2013, Congress amended the Violence Against Women Act to create a federal government enforcement action that protected the separate bases of sex and gender identity. See 34 U.S.C. § 12291(b)(13)(A) (2013), as amended by Pub. L. No. 113-4, § 3, 127 Stat. 56 (2013) (prohibiting discrimination in certain federally funded programs "on the basis of actual or perceived race, color, religion, national origin, sex, gender identity (as defined in [18 U.S.C. § 249(c)(4)]), sexual orientation, or disability" (emphases added)).

These post-Title IX enactments illustrate that Congress "kn[ows] how" to prohibit discrimination based on gender identity when it wishes to do so. Dep't of Homeland Sec. v. MacLean, 135 S. Ct. 913, 921 (2015). "If Congress had meant to prohibit … transgender discrimination" in Title IX, "surely the most straightforward way to do so would have been to say so—to add … 'transgender status' or 'gender identity' to the list of classifications protected under" Title IX. Wittmer v. Phillips 66 Co., 915 F.3d 328, 338 (5th Cir. 2019) (Ho, J., concurring) (addressing Title VII). Congress did not do so when originally enacting Title IX or subsequently. Instead, Congress has failed to enact proposed bills to amend Title IX to add protections for "gender identity." See, e.g., H.R. 1652, 113th Cong. (2013); S. 439, 114th Cong. (2015).

To be sure, "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). Subjective expectations of Members of Congress as to which particular practices Title IX would prohibit therefore do not control. But the historical context makes clear that, in using the term "sex," Congress was referring to discrimination based on biological sex— i.e., unequal treatment of men and women—consistent with the term's ordinary meaning. Conversely, the United States knows of no evidence showing that when Congress employed the term "sex" in Title IX it did so to reach anything about transgender status, and CIAC has identified none.

[D.] In addition, Title IX prohibits only "discrimination" "on the basis of sex," 20 U.S.C. § 1681(a) (emphasis added), and requiring all students to participate on the athletic team associated with their biological sex cannot be described as sex "discrimination." The "normal definition of discrimination, is differential treatment" or, more specifically, "less favorable treatment." Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005) (citation and internal quotation marks omitted) (construing "discrimination" in Title IX). Thus, for a prohibition on discrimination because of sex, "[t]he critical issue … is whether members of one sex are exposed to disadvantageous terms or conditions … to which members of the other sex are not exposed." Oncale, 523 U.S. at 80 (citation omitted) (addressing Title VII). Requiring students to participate on the athletic team associated with their biological sex accounts for the real physiological differences between the sexes in a manner that burdens each sex equally, which is the main reason why Defendants may continue to maintain single-sex teams. See infra Part B.

The situation is no different for transgender students specifically: biological males with a female gender identity are exposed to the same conditions as similarly situated biological females with a male gender identity.

Indeed, because such a policy would facially turn solely on biological differences rather than on gender identity, the policy would not even consider, much less discriminate on the basis of, transgender status. School officials would not even have to "know an individual's transgender status in order to enforce the policy—knowledge of characteristics unrelated to gender preference is both necessary and sufficient." Doe 2 v. Shanahan, 917 F.3d 694, 733 (D.C. Cir. 2019) (Williams, J., concurring in result) (addressing military policy requiring all "service members [to] serve 'in their biological sex'"); cf. Raytheon Co. v. Hernandez, 540 U.S. 44, 54 n.7 (2003) (noting that if an employer "were truly unaware that such a disability existed, it would be impossible for her hiring decision to have been based, even in part, on respondent's disability").

If the law were otherwise, countless sex-specific policies would be per se unlawful. A policy mandating that male students not frequent the women's bathrooms or locker rooms, for example, would be susceptible to challenge. And so would a policy setting different physical- fitness standards for male and female athletic events. Indeed, many of Title IX's implementing regulations—which permit sex-specific athletic teams, bathrooms, locker rooms, or shower facilities—would be in jeopardy if CIAC's view of sex discrimination were to carry the day. See 34 C.F.R. § 106.33 ("A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex."); id. § 106.41(b) (permitting "separate teams for members of each sex"); see also infra Part B.

Nothing in Title IX or Supreme Court precedent requires such radical upheaval. To the contrary, the Supreme Court has recognized that sex-based classifications sometimes are permissible because certain "differences between men and women" are "enduring." United States v. Virginia, 518 U.S. 515, 533 (1996). That holds true in the area of physical-fitness standards, as "[m]en and women simply are not physiologically the same for the purposes of physical fitness programs." Bauer v. Lynch, 812 F.3d 340, 350 (4th Cir. 2016) (finding FBI did not violate Title VII when using different physical fitness standards for special agent candidates based on sex); see also Virginia, 518 U.S. at 550 n.19 (admitting women to a previously all-male military academy "would undoubtedly require" that institution "to adjust aspects of the physical training programs").

[E.] Purpose and Regulations

Far from being required by Title IX, CIAC's transgender policy is in tension with "the core of Title IX's purpose"—namely, ensuring that women have an "[e]qual opportunity to participate" in educational programs and activities at covered institutions. Cohen v. Brown Univ., 991 F.2d 888, 897 (1st Cir. 1993); accord McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 286-95 (2d Cir. 2004). Notably, Congress reaffirmed that Title IX's core purpose was to provide women equal opportunities—and particularly athletic opportunities—with the Civil Rights Restoration Act of 1987, which superseded a Supreme Court decision that limited the scope of Title IX. As the Second Circuit observed, "[t]he congressional debate leading to the passage of [the Civil Rights Restoration Act] demonstrates concern by members of Congress about ensuring equal opportunities for female athletes." McCormick, 370 F.3d at 287-88; see also Cohen, 991 F.2d at 894 ("Although the Restoration Act does not specifically mention sports, the record of the floor debate leaves little doubt that the enactment was aimed, in part, at creating a more level playing field for female athletes.").

Title IX's athletic regulations further the statute's purpose by expressly contemplating the existence of single-sex teams. As Title IX's sponsor promised, the statute and its implementing regulations would "permit differential treatment by sex … in sport facilities," 118 Cong. Rec. 5807 (1972) (statement of Sen. Bayh), and would not mandate, for instance, the "desegregation of football fields," 117 Cong. Rec. 30407 (1971) (statement of Sen. Bayh); see North Haven Bd. of Ed., 456 U.S. at 526-27 ("Senator Bayh's remarks, as those of the sponsor of the language ultimately enacted, are an authoritative guide to the statute's construction."). Accordingly, those regulations provide that a recipient of federal funds does not violate Title IX when it "operate[s] or sponsor[s] separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport." 34 C.F.R. § 106.41(b). And the regulations expressly require "[a] recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics [to] provide equal opportunity for members of both sexes." Id. § 106.41(c).

CIAC nevertheless has decided to force biological girls to compete against biological boys who publicly identify with the female gender and want to compete on sex-specific athletic teams. Specifically, CIAC's policy determines eligibility for sex-specific sports teams according to a student's gender identification "in current school records and daily life activities in the school and community," and does not require students to attempt to undergo any physiological changes to reflect their gender identity. CIAC Handbook at 55. Accordingly, CIAC's transgender athletic policy is in tension with the core purpose of Title IX and its implementing regulations.

The policy also illustrates why this Court should not read Title IX to compel schools to require students to participate on sex-specific teams solely on the basis of their gender identity. Even if the term "sex" is somehow ambiguous, if "only one of the permissible meanings" of an allegedly ambiguous term "produces a substantive effect that is compatible with the rest of the law," this Court should adopt it because the Judiciary "cannot interpret federal statutes to negate their own stated purposes." King v. Burwell, 135 S. Ct. 2480, 2492-93 (2015) (citations omitted). Reading Title IX to compel schools to require biological males to compete against biological females in athletic competitions is precisely the type of interpretation that this Court should reject on this ground….

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  1. Good for the DOJ. What’s the point of Title IX if erases the distinction between men and women?

    1. It depends on your definition of woman, as Bill Clinton…*wouldn’t* say.

      1. Except for the very rare person with chromosone traids (say XXY),
        A DNA swab is sufficient to assign persons to the females team. There is no disadvantage to women for CIAC to make the men’s division an “open division” open to both sexes.

        1. To be fair, that XXY person is probably not competing at the top level of college sports. Seems like a real stretch.

          1. Except there has been controversy over a female Olympic athlete from Africa (don’t recall which country specifically) who is XXY.

            1. She is from south africa as I recall, and she is one of the truly rare/extremely rare cases.

            2. I believe you are referring to Caster Semenya of South Africa. As far as I know, the details of her medical tests have never been released but yes there were allegations that she is one of the very few with Klinefelter syndrome. Given the typical symptoms of Klinefelter, that seems unlikely to me but subsequent rule changes (and her ongoing legal case over them) make me think that she probably has some other developmental disorder that causes her body to produce average-male levels of testosterone (250-1000 ng/dl) rather than average-female levels (5-50 ng/dl).

              For most characteristics such as height, a plot of frequency by male and female will show to overlapping bell curves. Testosterone production plots as two widely separated bell curves with little to no overlap.

              1. She has XY chromosomes with 5-alpha-reductase deficiency (5ARD) which allows her cells to use her high testosterone levels. She has internal testes, was assigned female at birth, and identifies as female. She won gold at the 2016 Olympics in the 800-meters. I believe the silver and bronze medalists also have 5ARD.

                1. She has internal testes

                  Testes maketh man, regardless of what winding chromosomal, genetic and hormonal pathway led to them.

                  I agree with Don Nico – men’s competitions should simply be described as, and actually be, open to anyone. The female competitions should be open only to those people suffering from the athletic disability of being a woman*, just as with weight classes in wrestling and boxing.

                  *women do not suffer an athletic disadvantage in some sports, where power / weight ratios are not important. Like equestrian sports and shooting.

                  1. “women do not suffer an athletic disadvantage in some sports, where power / weight ratios are not important. Like equestrian sports and shooting.”

                    A bit more complicated. I’m not totally disagreeing, but the structures of men’s and women’s gymnastics –oriented according to human sexual dimorphism– is such that no man could ever perform anything resembling Simone Biles’ routines (frankly she could be the best athlete in the world), but some woman one day will. Men have advantages that accrue by virtue of foot speed, strength, physical height, etc.. This does not extend to all sports

                    1. I agree, and I did think of mentioning gymnastics.

                      But as gymnastics is typically scored by opinion rather than something more obviously objectively measurable, and since as you say men’s and women’s disciplines are different, I left it out as a weak example.

                      Whereas women have won gold medals in show jumping where the score is measured by fences knocked over and by time, so there’s no argument about who was best on the day.

                2. Caster Semenya is a man. He has XY chromosomes and internal testes. As you noted, he has 5ARD, which renders him relatively insensitive to androgens, but not totally. One can look at him and discern that he is a man. Broad shoulders, narrow hips, terrific musculature.

                  I understand that due to the environment in which he was born, being treated as female was the best option. Nonetheless, let’s not pretend. He is a man, with the athletic advantages of a man, competing as a woman and kicking female ass.

                  Whether that is good policy or not is up for debate. His sex isn’t.

  2. ” “on the basis of sex,” not on the basis of transgender status”

    That’s going to touch off a conflagration in Higher Ed where one can be expelled for making such a distinction, where professors have been fired for it.

    1. Well, first they need to identify the lawyers making these arguments (and anyone above them approving of these arguments) and ban them from ever appearing on a college campus again. Then any judges agreeing with these arguments should also be banned. We need to keep our college campuses safe from hate.

      1. The judges of the 4th Circuit somehow managed to determine that in 1972 “sex” meant to include transgenderism in that Grimm case. Even used the same dictionaries but chose to ignore 50 years of Congressional action and inaction on the topic.

        The people of our governing classes are corrupt and rotten to the core and are no longer worthy of the grant of power over us we give them.

      2. It isn’t the lawyers as much as the Administrators with things like “Diversity” and “Inclusion” in their titles, along with professors of things like “Gender & Sexuality Studies.”

        There are a lot of people in Higher Ed who graduated from law school but never passed (any) bar exam, and while they often are the persons expelling students, I’m not sure I’d call them “lawyers…”

        And as to those higher up, you’d have to purge entire administrative staffs to remove this foolishness (and fascism).

  3. What does it mean to be a women? What is a “woman” in light of the law? Are statutes to be interpreted in a dynamic manner? We already have dynamic interpretation of the Constitution; imagine how the law will be if we have dynamic interpretation of the Internal Revenue Code (Title 26 US Code) or ERISA?
    Regarding athletic competition, we either go back to a binary approach, or we go to four categories: born male identifying as male, born female identifying as female, born male identifying as female, and born female identifying as male.

      1. They don’t list female or male, at least as such in alphabetical order (I know, I am such a slouch!). I didn’t feel like reading all 112 to see if either is listed under some other name.

        1. Don’t bother with the list. Scroll down past it to the gender symbols.

          1. Strange. The two don’t match. The symbols include agender1, agender2, female, and male, none of which are in the list. Well, it’s all imaginary anyway, so go for it.

      2. What happens to the poor ‘Gender fluid’ folks.
        The open (formerly men’s) division is wher they are free to compete every day of the year.

        1. Right now they are being erased since it destroys the premise of transgender ideology.

    1. Many states allow you to list M, F, or X on your driver’s license – your choice.

    2. Your DNA swab says that you are XX, You may compete on a women’s team. If you are XY, its the men’s team for you.

      1. If you are XX with androgen insensitivity, you ought to be able to compete as a woman. Perhaps too should transgender women with low testosterone levels (because of drugs or surgery) who didn’t go through male puberty by taking puberty blockers, and more controversially those who did go through male puberty but have low testosterone levels (again, because drugs or surgery).

        1. lowering one’s testosterone won’t obviate the physiological advantages one accrues during male puberty

          1. I did say “more controversially.”

        2. Aren’t biological males who take puberty blockers still more physiologically dominant than biological women? On average, I would think they’re still taller, have denser bones, greater muscle mass, etc. Once those puberty blockers are off, their bodies start working like men again. At least they try.

      2. Agree….this is one of the silliest legal disputes I have ever seen.

  4. The bitter, clinging female athletes behind this lawsuit need to open wide and accept the fact that they are about to be replaced by their betters.

    1. You’re often a dick. (rimshot) But, okay, that was funny.

    2. Prof. Volokh is just pushing the buttons of his wingnut followers for sport at this point.

      The god-gays-guns buttons, mostly.

      1. No Rev., this is a real issue.

        It’s kind of heartbreaking. I think in the end of the day the DOJ is right, both about the statutory interpretation and about the need to preserve a “women’s” category based on the real biological differences.

        But it’s sad because trans- athletes don’t really have a good option. The hormones and therapies that they are often prescribed render them non-competitive against men, and at any rate, there’s something very harsh about telling them they have to be classed as “men” when the whole point of transgenderism is that they identify as women, not men. At the same time, the conservatives are right that there’s no way you can allow trans- male athletes en masse to compete in women’s sports; they’d clearly have an unfair advantage that would defeat the purpose of separate women’s sports.

        So there are really no winners here.

        One thing that is truly horrific, however, is the petulant toddler-like insistence among a segment of conservatives that trans people are not “real” and that there’s something clever about calling a trans woman a “man” repeatedly. You have to be a real jerk to want to deliberately hurt people’s feelings like that- and I am afraid a fair number of conservatives qualify.

        1. I’m not sure what you mean by saying that they’re not real. Obviously they are real. The question is what they are real instances of.

          There isn’t anything ‘clever’ about calling a guy with male genetics a man. There’s nothing clever about saying that the Sun rises in the East, or that water is wet. It’s just acknowledging reality, and refusing to be pressured into going along with a lie.

          1. Are you ready to acknowledge reality with respect to superstition, including special privilege routinely taken and sought for superstition-based claims?

          2. “There isn’t anything ‘clever’ about calling a guy with male genetics a man. There’s nothing clever about saying that the Sun rises in the East, or that water is wet.”

            It isn’t anything like “water is wet”. You see, the terms “man” and “woman” are terms of gender, not biological sex.

            Indeed, you know this, though you may not realize it. What do I mean by that? Well consider the realm of insults. I don’t mean now, I mean since forever and long before people talked in terms of transgenderism.

            In those years past, people would insult folks by calling them a member of the other gender. Men would be insulted as “girly”, “sissy”, “crying like a girl”, “throwing like a girl”, etc. And women would be insulted as “mannish”.

            Nobody throwing or hearing those insults thought they were referring to biological sex. Nobody thought that the “girly” man had a vagina, or that the “mannish” woman had descended testes. Those insults were about GENDER. Not sex. (Indeed, the DOJ brief has a good discussion of the difference between gender and sex.)

            The concept of “man” and “woman” is a concept of gender. It’s about cultural characteristics. This has always been true. Transgenderism just takes a usage of these terms that already existed and applied it to the familiar situation where a person was identified as one sex at birth but self-identifies in the other gender.

            There should literally be nothing controversial about this.

            But even if you disagree with it, bear in mind, they WANT to be identified by their gender, not their biological sex. So why go out of your way to insult them? If someone here insisted on repeatedly calling conservative Christians “bible thumpers” and never “Christians”, you’d say that person was a prick. And you’d be right.

            Don’t be a prick. Even if you oppose trans- rights, don’t be a prick.

            1. “It isn’t anything like “water is wet”. You see, the terms “man” and “woman” are terms of gender, not biological sex.”

              You see, that’s exactly the lie we’re refusing to be intimidated into going along with. Yes, you’re right, it’s been common to insult men by suggesting they were girlish, or women by suggesting they were manly. That doesn’t carry the implications you suggest. As is pointed out elsewhere in this comment thread, while the basis of sexual difference is chromosomal, this leads to a wide range of secondary consequences that are associated with the chromosomal difference. The insult is suggesting that you have the characteristics associated with the opposing sex. Not that you ARE the opposing sex.

              “But even if you disagree with it, bear in mind, they WANT to be identified by their gender, not their biological sex. So why go out of your way to insult them?”

              You don’t insult somebody by refusing to humor their delusion. Sure, the refusal carries with it the implication that they ARE deluded. But accurate implications should not be considered insulting, they’re just accurate. Inaccuracy is inherent in the concept of an “insult”, you couldn’t insult me be calling me fat, bald, or pale, for instance. I AM fat, bald, and pale, and if I don’t want to be called that, I should lose some weight and… well, the rest of it is pretty unavoidable, but accurate observations still aren’t insults.

              Yeah, they want to be identified as a sex they’re not. But they’re not entitled to have their delusions humored. They’re not entitled to control other people’s speech, compel other people to falsify reality.

              They’re not entitled to have people who see four fingers say five.

            2. Nobody throwing or hearing those insults thought they were referring to biological sex. Nobody thought that the “girly” man had a vagina, or that the “mannish” woman had descended testes.

              That is possibly the silliest argument I’ve ever seen on Volokh, which is quite an achievement.

              Giving gender its outing today in its “gender-is-what-society-expects-of-a-man / woman” coat (as opposed to its “gender-is-what-you-feel-about-yourself” coat, which it wears on alternate days – or more usually alternate sentences) persons of male sex are expected by society to behave in a male fashion. Male sex implies male gender. That some persons of male sex do not choose to conform, always and to the fullest extent, to male gendered behavior does not change what society expects of men. Thus making jokes about or insulting men who exhibit female gendered behavior is perfectly consistent with “men” referring to persons of male sex. They are being insulted precisely because they are men, but are not behaving in the way expected of men.

              Next week : “You, Dilan, are a stupid dog.”

              tip – this is an insult, not an allegation that you are actually an example of canis lupus familiaris, with four paws, a tail, really bad breath and a tendency to crap on the lawn.

        2. It is a real issue, but why is this one selected for inclusion here while an avalanche of other issues — today’s examples: the Trump campaign’s attempts to stifle a campaign advertisement with nastygrams to broadcasters, or the seemingly preferential disaster relief treatment provided to governors who ‘say nice things’ about the administration — are conspicuously ignored? The obvious inference is that lathering up the clingers — pushing the right-wing base’s buttons on ‘persecuted’ male students, ‘persecuted’ religious claimants, ‘persecuted’ whites, ‘persecuted’ conservatives, and just about anything involving transgender issues, Islam, guns, etc. — is more important than just about anything else here.

          The proprietors are free to choose and shape content as they wish. Others are free to comment about those choices — unless and until the Volokh Conspiracy’s Board of Censors imposes some more viewpoint-controlled censorship, of course.

        3. I’m not at all clear that the therapies don’t drop them to the level of women or even below. Studies, last I heard (about a year ago) remain inconsistent.

          1. “I’m not at all clear that the therapies don’t drop them to the level of women or even below.”

            A policy based on physical differences would be a different issue. According to the complaint, people who are full biological boys are being counted as girls.

        4. “One thing that is truly horrific, however, is the petulant toddler-like insistence among a segment of conservatives that trans people are not “real” and that there’s something clever about calling a trans woman a “man” repeatedly.”

          The petulant toddler-like insistence is on both sides. If someone thinks of themselves as a woman, then sure, as far as they are concerned, they are a woman.

          But if you perceive somebody to be a dude in a dress, then as far as you are concerned, they are a dude in a dress. And to whatever extent it matters to you that someone is a dude, the person really is a dude, and there’s no point in other people insisting that they are women.

          1. I think you are making a false equivalence of petulance here.

            It’s way more petulant to petulantly demand to choose other people’s words for them, than to petulantly demand to choose your own words.

            Indeed there’s some folk who’d deny that choosing your own words is petulant at all.

            1. Dilan is not demanding you not use your own words. He’s just saying, quite rightly in my view, you aren’t exercising common courtesy by doing so. Additionally, you are go against what the doctor ordered.

              1. Additionally, you are go against what the doctor ordered.

                Que ?

                1. A common treatment for gender dysphoria is to live your life to match your gender identity, including being referred to the pronoun that matches your gender identity.

                  1. That would appear to be a pretty rickety treatment plan, then, if it depends on what everybody else does. A vision of moving the milk out of the dairy to distance it from the cat springs to mind.

                    Perhaps we should consider something within the control of doctor and patient ?

                    1. It’s one aspect of a comprehensive treatment plan. And people who aren’t jerks ought to help with the plan.

                    2. But what proportion of the population needs to comply for this aspect of the treatment plan to be effective ?

                    3. I have no idea.

                      Perhaps we should accept the advice of the medical community and not be jerks.

                    4. I prefer to accept the advice of the “medical community” when that advice has a good solid track record of success. And to reject quack remedies.

                      My understanding is that the usual advice of those treating psychological agitations is to help the patient gradually face that aspect of reality which discomforts him, not to avoid it. Certainly with great care and in itty itty steps, but to face not avoid. And my understanding is that such doctors claim that this approach has a good record of success with many patients over many decades.

                      I am unaware of any correspondingly longstanding claims of success for the “avoid” strategy.

                      Moreover even if it were the case that real humans, rather than just Tinkerbell, could be saved by everyone declaiming “I believe in fairies” I do not believe that it would be a practical remedy. One can get an audience of parents to indulge their children for an hour or so. Outside a theatre there are bound to be what you describe as “jerks”, aka folk who are not minded to indulge other people’s fantasies indefinitely, still less be lectured that it is their own perception of reality which is fantastic.

                    5. You are begging the question that sex is the same as gender. The empirical evidence from what works to treat gender dysphoria strongly suggests otherwise.

                    6. You are begging the question that sex is the same as gender.

                      Which of its several senses is “gender” taking in that sentence ? I will assume – since it’s the meaning that seems most germane to the point I think you are trying to make – that you mean “gender identity”, that is to say a person’s internal psychological sense of what sex they belong, or ought to belong, to.”

                      And in that sense, no I am not confusing sex and gender. I am quite content to believe that some people have a psychological sense that they are male (gender), when in fact they are female (sex.) Or vice versa. And I am quite content to believe that this pyschological sense may be “natural” – in the sense of having been caused by the interaction of genes, hormones and environmental influences.

                      But however real or even natural this sense of being a member of the sex that you are not, in fact, a member of – the sense is still at odds with reality. However male you feel, if you are in fact female, the reality is that you are a female, who feels male. Hence the dys in dysphoria.

                      I myself suffer from a similar psychological disorder – a very common one. My mental image of myself is of a man about half my actual age. No great harm comes from this, as reality draws itself to my attention before I attempt anything too age inappropriate. But it can still come as a surprise to see this fellow, twice my age, in a mirror.

                      The empirical evidence from what works to treat gender dysphoria strongly suggests otherwise.

                      I’m afraid there is very little evidence of “what works to treat gender dysphoria.” There are no doubt plenty of cases where vigorous efforts to adjust the appearances of sex to better match gender identity have been successful. And plenty going the other way. There is no consistent evidence of effective treatment, just a clamor of disputation.

                      Except of course, we know that there is no evidence that effective treatment has been delivered by the rest of the world vocally suspending disbelief in the patient’s professed gender identity. For the rest of the world has not co-operated in such treatment and is never likely to.

                    7. By gender I am referring to the social construct. If one feels they are female, even though they are biologically male, it is possible they are female if gender is a social construct.

                      If 1) believing in being half your age was widespread, 2) led to severe stress, and 3) the treatment that most often worked was living your life as if you were half your age, that would be evidence for the existence of age dysphoria and the social construct of age identity. But, unlike in the case of gender dysphoria, such evidence does not exist.

                    8. By gender I am referring to the social construct. If one feels they are female, even though they are biologically male, it is possible they are female if gender is a social construct.

                      I’m afraid I don’t understand you.

                      I appreciate that if there is a meaning of male and female that is other than biologically male and biologically female, then someone who is biologically male may indeed be female according to that other meaning.

                      But what is that other meaning ? Saying it’s a “social construct” doesn’t advance the ball. You need to tell me what that other, non biological meaning is – what meaning has society constructed ?

                      I am familiar with the notion that society has developed various expectations about how biological males typically behave and that we can describe that collection of expected behaviors as constitutioning male “gender”. And so, mutatis mutandis, for the female gender. But what does this have to do with how someone feels ?

                      Again I appreciate that a biologically male person may feel like behaving in the way that society expects biological females to behave, ie he may wish to exhibit the socially constructed female gender, despite his sex being male. And the feeling may be real in the sense that he really does feel that’s how he’d prefer to behave.

                      And I can even accept that his feeling might extend to wishing that he be treated by others as if his female gendered behavior was perfectly acceptable to society.

                      But isn’t this where the wheels fall off the wagon ? For the social construct – according to the theory we have been pursuing – is that biological males are to behave in a male gendered fashion, and biological females are to behave in a female gendered fashion. But now we seem to be torching that idea in favor of a quite different one – that society is to accept people behaving contrary to society’s construct.

                      Well that’s fine by me, but it leaves the idea of a social construct of gender as a smoking pile of ashes.

                      So, a simple hand waving reference to gender as a socal construct only works if you let society have its way. Once you attach the wholly different idea that gender is a psychological state, the two contradictory ideas chop each other to pieces and you’re left with nothing.

                      Do you have a coherent, internally consistent, notion of gender ? And if so, what is it ?

                    9. Once you attach the wholly different idea that gender is a psychological state, the two contradictory ideas chop each other to pieces and you’re left with nothing.

                      I think the argument is that gender as a social construct and gender identity as a psychological state are internally consistent. I’ve heard arguments that they aren’t and we should drop the notion of binary gender. Either way, given the experience in treating gender dysphoria, I am not going to act like a jerk and refer to a person by their preferred gender pronouns.

                    10. I think the argument is that gender as a social construct and gender identity as a psychological state are internally consistent.

                      That looks like an assertion to me, lacking any actual argument. Do you have an actual argument based on an actual specific consistent meaning of “gender.”

                      I’ve heard arguments that they aren’t and we should drop the notion of binary gender.

                      Absent a specific consistent meaning of “gender” the sensible thing to do would be to stop using the word altogether until someone comes up with such a meaning.

                      Either way, given the experience in treating gender dysphoria, I am not going to act like a jerk and refer to a person by their preferred gender pronouns.

                      I think something went wrong with that sentence. But in any case, as I mentioned above, there is no good medical evidence that people suffering from gender dysphoria are consistently helped by avoiding rather than facing their conflict with reality. And plenty of evidence that facing conflicts with reality – managed slowly and sensitively – is the better treatment.

                    11. I see, btw, in reskimming my previous comment that I may wrongly have given the impression that I accept that – rather than have merely heard of the notion that – society constructs a pattern of behaviors that men are supposed to exhibit (and that this pattern can be called “male gender”) – and likewise for women and female gender.

                      The correct version of this is that there are indeed typically male behaviors and typically female behaviors in all sorts of animals, including humans. And the differences in behavior are largely related to biological sex differentiation. Thus in species which care for their young, typically the female provides all or the majority of child care.

                      In humans, a species with large brains and the potential for rather plastic behavior patterns, there can be quite a large overlap between male and female behavior patterns – and more so in those rich societies which have distanced themselves from the immediate demands of nature.

                      Nevertheless, even in modern Western societies, a good chunk of typical male and female behavior is, as with other animals, biologically inspired, not socially constructed. There is, of course, an additional layer of typical behavior which is indeed the construction of society, but it is a mistake to imagine that all sexually differentiated behavior in humans. living in a modern society, is socially constructed.

        5. “But it’s sad because trans- athletes don’t really have a good option.”

          I haven’t looked at the ins and outs of the legal issue, but for Title IX purposes, just count biological sex regardless of how you label the teams. Title IX assumes that there is an equal number of biological boys and girls, but there might not be an equal number of people who ID as boys and girls. So if you have 10 track athletes, 3 boys, 2 trans-girls, and 3 biological girls, then you have a boys team of 3 and a girls team of 7. That way everybody gets to play with their preferred category, and everybody gets an equal chance to play regardless of what they are packing.

          1. I’m having a hard time getting past your math to even engage whatever your point here is. 3+2+3 doesn’t equal 10.

            And the freaking point is that, if you include the boys who are pretending to be girls on the girl’s team, the girls automatically get crushed. They’re guaranteed to not be the top ranking players on their own team, the boys get to dominate both teams.

        6. But it’s sad because trans- athletes don’t really have a good option.

          Trans-men have a perfectly good option – compete as women in women’s competitions, where y’all suffer from no disadvantage (or advantage.)

          Trans-women, who are trans only as to psychology, don’t have any disadvantages in men’s, or open, competitions. Those trans-women who are trans in some way that affects their athletic development adversely, for competition against men, can join the long queue of cis-men who also suffer from some developmental disadvantage which prevents them competing successfully in mens competions. Smallness, weakness, poor eyesight, lack of co-ordination, spina bifida etc.

          Mother Nature does not equip us all with equal athletic potential. We have to learn to suck it up.

  5. I wonder what would have happened if Caitlin Jenner was 50 years younger and transitioned in time for the 2021 Olympics.

    1. She would be allowed to compete with the women, obviously.

      1. Not under current IOC and IAAF rules, absent her undergoing a bunch of therapies that I am not sure she has underwent.

        1. “She has underwent” is totally impossible. It has to be “she has undergone.”

  6. Transgender women simply are not females.
    They are taller, with a narrower pelvis, larger hands and feet, stronger skeleton, greater lung capacity, larger heart, more mitochondria per muscle cell… everything, from the level of DNA, metabolism, and physical anatomy is male about transgendered women. And no short term deprivation of testosterone, which is easy to cheat because most don’t even get castrated, makes them have the body they would have if there was never a Y chromosome orchestrating maleness beginning at the first cellular division before implantation in the womb,

    1. It’s easy to laugh at women being beat by transitioned men, serves them right, but I doubt most real women are on the gender bender train; but they don’t dare speak out for fear of being canceled. What a shit show!

      1. As a victim of Title IX, I have to admit to schadenfreude here….

    2. T.E.R.F. has a point.

  7. So Eugene Volokh has no opinion of his own about this issue whatsoever?

    1. No informed opinion. I have an intuitive reaction, but I haven’t studied the issue closely; why not leave it to others who have?

      1. Based on your past blogging on transgender issues such as pronoun usage, I suspect your intuitive reaction is the DOJ makes a persuasive case. And while I have mostly disagreed with you in the past on transgender issues, this time I agree, at least to the extent that Title IX requires transgender women to compete as males. I’m undecided as to whether Title IX prohibits such a policy.

        All that being said, I look forward to you posting the reply brief.

        1. Of course I meant to say “requires transgender women to be allowed to compete as women.”

      2. lol what is there to study? Either you let men compete with women to preserve the fiction of equality or you don’t . Not exactly nonlinear calculus here.

        1. Seems like you could study what specific biochemical factors give biological males the edge. You could then try to work out a test to see whether a MtF competitor has had female-like levels of those hormones for at least 3 years.

          In fact, we’re already well on our way down that path of study.

          [ And, as a side note, it’s almost never “either/or” — or at least those presenting a stark dichotomy bear the burden of proof to disprove the existence of any alternatives. And since above I’ve given one additional option, that serves as a disproof of non-existence of alternatives. There are probably many others as well. ]

          1. You could then try to work out a test to see whether a MtF competitor has had female-like levels of those hormones for at least 3 years.

            Unless those last three years were during puberty, you’ve missed the boat.

      3. On the internet? That’s unAmurrican.

  8. The DOJ of course is wrong here. The purpose of Title IX was never to support and nurture women’s athletics, it was to tear down and cripple men’s college athletics. So allowing transgendered participation in female athletics won’t impede the mission of Title IX at all.

  9. One of the “marquee accomplishments” of the law?

    Above the title, presumably.

    Mr. D.

  10. This is what happens when when you have a silly ideology like progressivism with self contradictory tenets which collide with each other. On one hand you have radical feminism and affirmative action. On the other you have radical transgenderism and equalism.

    Really they should do away with this nonsense of gendered sports programs all together. Just have one team or one set of teams based on skill alone. Open to everyone Man, women, or whatever, either you make it or you don’t. No affirmative action, no team forced to carry another team financially.

    1. Progressives have a silly ideology.

      Conservatives are science-disdaining, roundly bigoted, reality-rejecting, disaffected, stale-thinking culture war losers clustered in dysfunctional, half-educated, can’t-keep-up backwaters.

      Where is the hope for America, AmosArch?

  11. These threads are rapidly becoming the worst. Well, not really considering the gun threads and illegal immigration threads and threads about some liberal woman doing a thing, but pretty bad.

    Just an echo chamber of spiraling ignorant declarations against transgenders, that often catches homosexuality and feminism as well. Do some research people, ffs.

    1. These threads are, in some ways, the best.

      They illustrate the current American divide — and which side has won and is positioned to continue to win.

      Education or ignorance? Reason or superstition? Tolerance or bigotry? Science or dogma? Inclusiveness or insularity? Modernity or backwardness?

      Educated, accomplished, modern, reasoning cities and suburbs or brain-drained, can’t-keep-up rural and southern communities? Strong mainstream universities and public education or backwater religious schools and downscale homeschooling? Embracing progress and diversity or pining for good old days that never existed?

      Which side is prevailing . . . and benefiting from improvement in the American electorate? Which side is desperate — Trump-level desperate — and declining?

      Which side is continuing to shape American progress against the wishes and efforts of the other side? Which side is becoming disaffected and separatist?

      This is the best the clingers can do, Sarcastro. This is heartening.

      1. Four fingers or five, that’s what it really comes down to. One side can’t get past the fact that they actually do see four fingers, the other side is having terrifying success at positioning themselves to deliver electric shocks if you don’t say “five”.

        1. Are you referring to the side whose adults claim to believe that fairy tales are true — and that those superstitious stories command them to be bigots — as the “reality-based’ side?

          That’s as persuasive as birtherism was.

    2. Yeah, the research where tons of biologically female athletes are getting their asses kicked in important high school and collegiate competitions by biological males, resulting in loss of recognition, prize money, scholarships, networking opportunities, advancement in athletics, etc. These biological women can’t say anything without being called a bigot, even though statistically speaking, these same women are the ones fighting more for that transgender biological male’s rights than any other group in this country.

      1. Thanks for proving my point. Tons, indeed. Anecdotes highlighted by right-wing media do not reality make.

        Women live in fear of speaking out against transgenders – you can tell because of all the silence.

        You’re pulling things out of your butt because they feel true with no backup. Everyone here is doing it; it’s a whole circle jerk. Just like guns threads, threads about illegals, and when Trump said a thing.

        1. Actually, we do fear speaking out. And many of us see this as yet another instance of men stepping all over us—just under the fiction of calling themselves women.

          I watch the men claiming to be women when they confront women. These “women” act just like men: they physically intimidate; they lecture; they refuse to listen. They are, in fact, male; and they act like it.

          I shake my head at the idea that a male can have the foggiest idea of what it “feels” like to be female. And I laugh because all of their “feelz” translate to stereotypical enactments of femaleness. I.e., big hair, makeup, dresses, etc. All of the props of being a traditional female; none of the reality.

          When it comes to athletics, most men are better than most women. That anyone would dispute this is mind-boggling. The male advantage is not solely due to puberty, either. Male physical attributes begin to accrue in utero. Male brains ARE actually different from females. From birth, male skeletal development is different. (It isn’t like sex hormones are missing from the human body until puberty.). Male hearts are bigger and more muscular. Their skeletal structure is different. (One reason women get more knee injuries.). Their eye/hand coordination is better. Their spatial skills are better. None of this is controversial—it just cannot be spoken of.

          I am a very good runner. I routinely beat many men at the ultra distances I run. But the winners of these races—by many hours—are men. The fastest women are way behind. I would be livid if some fake woman knocked me off the podium.

          1. Nice of you to speak for women everywhere. And for making it clear you don’t have much fear, just lots of bitterness and anger.

            1. I seem to be the only female in this conversation. Nice straw person, though, attributing to me the claim to be speak for “all women.” Of course, I probably speak to more women about this than you do. And definitely more female athletes.

              And I am not bitter. I have no call to be bitter. I have a terrific job, making obscene amounts of money doing what I love. I am a serious amateur runner with age group wins at distances from marathons to 50 miles.

              What I am that you are not, Sarcastro, is a woman, an athlete and a scientist. I have more authority to speak on this issue than you do, by virtue of those three facts. Get back to me when you have personal insight, experience, or real scientific information that you gained from more than browsing the internet.

              1. Technically, as Dilan would explain, “woman” is a word denoting gender. Consequently if you fail to toe the progressive line – the behavior expected of women – you aren’t in fact a “woman.”

                So shut up.

                1. Oh, yeah. Bad dog, Carl. No dog biscuit for you.

        2. Here is where Sarcastro pretends cancel culture doesn’t exist because he’s not be affected by it personally.

          Sarc, in all seriousness, I presume that at one time you were a fish out of water, as in amongst people who didn’t share your opinion on topic X but a job or some such was on the line, so you held your tongue?

          1. Sure, that happens. But the argument here is that it is not some women, but women athletes in general. Not going to buy that.

          2. And I wasn’t claiming to feel threatened for speaking out. It isn’t so much fear of being “canceled” as it is exhaustion at being challenged by idiots like Sarcastro. Exhaustion at constantly having to argue what is blindingly obvious to anyone who does anything remotely athletic. Men are better athletes than women. Period. This didn’t used to be controversial, until men who suffer mental illness began to want to compete against women. Then, all of a sudden, it became subject to debate.

            And the irony of that becoming debatable is that once again, men are running roughshod over women, getting their way. And men, like Sarcastro, are blind to that. As soon as a bunch of deluded men want something that women have, it becomes paramount that those men get it. And any woman who bitches about it is called bitter and angry. Or told to shut up.

            I am generalizing. For effect. It is polemic. But you get the point.

            And I, for one, love the patriarchy. I don’t even consider myself a feminist. I just hate this mental illness parading as righteousness.

        3. Okay, so all the women who have come forward are just liars because everyone must meet your unstated burden of proof, which we all know doesn’t exist because you’re an ideologue. Ever notice on this blog how all these other people suing for their rights are just individual anecdotes?

          I don’t even know why you think these stories being anecdotal somehow disqualifies them. Do you have any female athletes in your family? Have you ever seen these matches? Have you ever competed in strength-based sports alongside women? Do you understand the physiological differences between men and women? Have you ever listened to a woman discuss how powerless they feel wrestling, swimming or biking against transgender women? Have you ever spoken to an actual MD about the science? How about the dangers of puberty blockers, involuntary sterilization and elevated risk of cancer for trans men and women due to HRT?

          1. Here’s just a few examples in case you want to listen to some people publicly. Sharron Davies, Linda Blade, Martina Navratilova, Paula Radcliffe, Kelly Holmes, the three Hartford, CT girls whose lawsuit against the CIAC is the subject of this article, and go from there.

            Check out male commentary as well. There are lots of great guests on the JRE that comment on the issue, but Mark Rippetoe (famous trainer, created Starting Strength) is a great source for objective information. And for something humorous, check out Zuby breaking the women’s world record for deadlifts. He’s not even a bodybuilder. Bodybuilders are a great resource in general.

            1. You’re still not doing a great job proving your thesis that women athletes are raging against this but all afraid.

              I also note all the rest of your baseless assertions have fallen by the wayside.
              Stop making things up because they feel right to you, and beware of confirmation bias.

            2. Also, ‘Kelly Holmes, Paula Radcliffe and Sharron Davies are asking the International Olympic Committee for more research on the “residual benefits” of being a trans athlete’ is neither speaking out nor living in fear.

              I’m all for more studies myself.

              1. Maybe I’m the only person dumb enough to have taken this long, but you’re officially a troll. I’m not going to have you gaslighting me that these women athletes aren’t saying what they’re saying and doing what they’re doing. As I said before, you won’t define your acceptable burden of proof and that’s because you don’t have one. You just want me to waste my time like those fucking socks who spam links and cites. This is an internet discussion, get over yourself. You’re not important enough to warrant that level of work.

                All three of these women explicitly went on the record saying transgender women should not compete with biological women and they were all chastised for it. When they finally spoke up, they all talked about frustrations of being afraid to speak for fear of reprisal. Unfortunately, most of the world does not value freedom of speech the same way we do.

  12. in the grandscheme of the transgender issue, arguing over what bathroom to use or whether to compete on a mens or womens team is trivial.

    The mental health profession has been polluted for centuries with delusional damaging diagnosises and treatments that cause great harm. Electric shock treatments, frontal lobotomies, just to name a few. They have all been considered the gold standard by the leading experts in the mental health professions only to be discredited.

    The diagnosis and treatment of transgenderism is just another in a long line of polluted ideas. At some point, pyschologists & psychiatrists will figure out a treatment.
    Unfortunately, we wont be able to undo the damage to those who have had their bodies mutilated into having the appearance of the opposite sex.

  13. The sad thing is that I think it’s clear where this is going to settle in the long run — MtF folks will be able to compete as women after they have been on hormone therapy and stay below X ng/dL androgens for Y months.

    The specific choices of X & Y will have to wait for better science but the broad outline seems eminently reasonable — it’s not fair to females to compete against someone with male level of androgenic hormones, neither is it fair to exclude those who no longer have those levels. And it’s certainly not fair to anyone to have criteria for inclusion that are not clear and objective.

    It’s not what the ardent proponents or opponents pushing the ideological war here want, but it’s likely broadly acceptable and grounded in biological fact.

    1. If a person went through puberty as a male, they still have permanent advantages, such as higher bone density, not to mention size, that a woman won’t have. Even that supposed compromise is not fair.

      1. There might be some permanent advantages but bone density isn’t one of them (though that is one that takes years to regress to the mean).

        1. Bone density is a huge advantage in the contact sports, like MMA and boxing, and in semi-contact sports like rugby and soccer, not to mention the size advantage in sports without weight classes.

          1. Studies are not at all clear on how hormone therapies apply to that.

            1. Actual experience based upon millennia of sport knowledge is quite clear….size matters, as much, if not more, than skill. That’s why there are weight classes in contact sports in the modern era, so people are kept safe(r). Bone density also matters too. Take a grisly tour down YouTube vids of Thai boxers who didn’t have sufficient bone density if you want. M to F MMA fighters have destroyed their opponents. Male skulls are actually thicker due to millennia of evolutionary selection.

              Then if you take semi-contact sports like rugby and soccer, where size and strength matter too, but without weight classes, there is a huge advantage.

              1. Actual experience based upon millennia of sport knowledge is quite clear

                Yep, this thread continues to be replete with appeals to incredulity or other such rot.

                Those hormones make your bones get less dense, chief. These aren’t transvestites, they’re transgenders.

                1. Yes, but the bones are bigger if a male went through puberty first, and even if density is reduced over time through taking estrogen or some such, can you say at what rate and how much. No? I didn’t think so.

                  Size matters, even the size of bones. You should know that. Or is the sky not blue today?

                2. Hormones aren’t vitamins you dope, you can’t just take them and suddenly reverse your natural biology, decades of development, and millennia of evolution. None of the science supports your claim that cross-sex HRT thins your bones.

                  JFC, this is what happens after decades of indoctrination and this “blank slate” bullshit where people seriously believe the only difference between a man and a woman is what hormones you feed them.

                  1. Very clinical, both of you.

                    HRT EXISTS to increase bone density when applied to postmenopausal women, so arguing it can’t effect bones is failure to Google levels of ignorant.

                    1. Here’s clinical for you, sciency-one.

                      Pick up a copy of Charle’s Murray’s book “Human Diversity.” He goes into the science behind sex differences in exhaustive detail, with citations, in case you want to check his work.

                      While there is overlap between the sexes, taken as populations, men and women differ—and in very important ways. The process of sexual differentiation begins in utero, with exposure of the male fetus to androgens. This begins to shape the physical development of the fetus—from musculature, to skeletal shape, to heart size, to brain size and brain architecture.

                      The process continues all throughout childhood and accelerates in puberty. By the time men and women are adults, men have larger hearts—especially larger left ventricles, narrower hips (which leads to differences in gait and power), larger muscles, denser bones, greater upper body strength, and bigger brains.

                      The larger brain size of men leads to crucial differences in architecture—because of the volume of neural matter, men have more lateral connections within the hemispheres, and a poorer connection between the hemispheres. This may contribute to men’s superior visual-spatial skills and women’s superior verbal skills.

                      Women are more risk-averse (smart survival strategy), while men are more reckless and prone to physical violence (good when you need protection and hunters).

                      I could go on, but you get the gist. The populations distribute on a normal curve, with overlap. But the differences, in the aggregate, are immense.

                      No amount of wishing/delusion/insistence will make a male body a female body or vice versa. This used to be common sense. Now it is heresy, apparently.

                    2. “Cross sex” you illiterate mong troll. Cross-sex. There are no known relationships between cross-sex HRT and changes in bone density. The one study you (might) find is that cross-sex HRT MAY have some relationship with thinning some bones in the lumbar spine. No other relationships have ever been observed. None.

      2. I’m not sure that’s empirically true, especially if they were prescribed GNRHa as teenagers.

        1. Even presuming it is the case that puberty blockers prevent bone density in males being higher than females, then we are talking about a vanishingly small number of athletes who are biologically male that could compete on equal ground as a biological female, that is someone who could prove that they never went through puberty.

          1. And puberty blockers do not undo the sexual differentiation that begins in utero. It isn’t all about puberty. We aren’t blobs of asexual clay that suddenly bifurcate into male/female at puberty.

            What we do know is that long-term use of hormone-blockers and administration of opposite-sex hormones will have meaningful medical sequelae, probably in cardiovascular/metabolic disease and cancer. The party of Science! Is suddenly perfectly happy to overlook the lack of data about what will happen to all these young people on whom their parents and physicians have experimented. God help us when the men who are BRCA positive get aggressive breast cancer because they’ve pumped themselves full of hormones. And the females get DVTs, pulmonary emboli and myocardial infarcs when they are pre-menopausal.

  14. I think this movement requires that we go back to basics–and the concept of “gender identity” also requires that we define what is “male” and “female.” I’ll stick my neck out to suggest that it be determined in the following manner:
    1) Chromosomally. XX is female, XY is male.
    2) Any dispute about chromosomal testing will then look at defined testosterone levels–of which there is very, very little overlap between males and females.
    3) Any dispute about hormone levels will then consider external genitalia–maybe defined penile/clitoral length–where there is also very, very little overlap between males and females.
    4) Any dispute about external penile/clitoral length will then consider internal sex characteristics (testes vs. ovaries, for example).
    5) Any further dispute about sex will then be determined by a court/judge in concert with the individual.

    We further need to define how we’re going to determine “gender identity” beyond just some self-assertion. What is the “test” to determine a person’s “gender identity” in an objective, observable way? Once we get these figured out we’ll be a lot closer to truth and what we can base law upon.

    1. Your points are actually not in any real dispute; scientifically, this is universally accepted and understood middle school biology.

      Your framework seems sound but is actually instructive to the issue of “intersex” — a vanishingly rare circumstance which basically means the existence of some biological malformities which might result in some uncertainty with respect to the binary biological sex classification.

      But that’s all separate from the issue of “trans” which literally denotes crossing over to the opposite side. You’d be forgiven for conflating the two issues since that’s what the activists resort to when pressed lightly.

      The recognition of biological sex as you describe it is fully baked into the trans ideology, as it is founded on the supposed sharp distinction between “sex” and “gender.”

      The real issue is actually as you stated in your first sentence, “that we define what is “male” and “female.”” The answer is as plain as the nose on your middle school teacher’s face. Male and female are the two sexes, and it is a binary biological classifcation. This is learned by every 2 and 3 year old at some point in the bathtub.

      The position to reject is that “male” and “female” mean or should mean “gender” (accepting, for the sake of argument their definition of gender). I’m not a male because of any feelings or emotions I have, or because of social constructs or stereotypes associated with sex. I’m a male because . . . well, you know.

      1. Middle school biology is not really an authority. Once again. And yet you can’t stop with that childlike argument.

        1. Oh, man. I try to take you seriously, but I just cannot when you say stuff like this. You’re the fellow that often pops into a comment thread and says “XYZ academic discipline says ABC” and you expect people to take it as a given, post no links, and tell people to do their homework when they ask for some authoritative source that agrees with you.

          Saying “middle school biology” is just alluding to commonly accepted knowledge, without literal specifics, like that until about 30 seconds ago everyone knew there was male/female with only a microscopic number of people with genetic abnormalities. He did the physics equivalent of saying gravity makes stuff fall to the ground and you expect something more about the relative mass of objects or some such.

          Look, nobody has a problem with treating these trans folks with human dignity, which is where your humane and emotional motivation comes from for arguing for “trans rights.” But the problem is that, to put it in familiar terms, their right to swing their trans fists ends when it touches the rest of our collective noses.

          1. If the majority say you aren’t permitted to discriminate on the basis of gender identity (*), then I don’t think a fist has touched your nose.

            (*) I agree with the DOJ that the majority has not proscribed the banning of transgender women from participation in women-only athletics.

            1. Any time you’re robbed of your own right to make your own choices, discriminatory or not, a fist has indeed touched your nose.

              1. The logical conclusion of Brett’s belief is that Titles II and VII of the Civil Rights Act touch your nose.

                1. Indeed. Any law that takes a choice away from you “touches your nose”, even if it’s a choice Josh R disapproves of.

                  1. Am I correct that the implication of “touches your nose” is the act is illegitimate, and hence you believe Titles II and VII and similar state anti-discrimination laws are illegitimate?

        2. Sarcastro, Forget middle school. I see you conveniently ignored the 2 and 3 year old bathtub lessons!

        3. OK. I’ll bite (I AM a glutton!).

          What is it that you disagree with, and how would YOU define “male” and “female”–or how do you define and distinguish the various “gender identities” in a meaningful, verifiable way? (No slipping out of this with some sleight of hand “we don’t NEED to define these!” You’re critical of the argument, then contribute to the argument–or just butt out, I guess.)

      2. Whether “male” and “female” should refer exclusively to biological sex is not a matter addressed by the physical sciences, including middle school biology.

        1. That’s true but from the beginning of history to now that’s what those words have referred to, and the push to suddenly co-opt and redefine them is ghastly propaganda.

          1. I think the push is in response to our relatively newly-gained knowledge about gender dysphoria.

            1. In theory then if you think you’re a cat or a baby, it might be good treatment for others to knowingly reaffirm this falsehood?

              1. If 1) believing in being a cat was widespread, 2) led to severe stress, and 3) the treatment that most often worked was living your life as a cat, that would be evidence for the existence of species dysphoria and the social construct of species identity. But, unlike in the case of gender dysphoria, such evidence does not exist.

        2. “Whether “male” and “female” should refer exclusively to biological sex is not a matter addressed by the physical sciences, including middle school biology.”

          I don’t think a significant case has been built to ignore or discard the binary and biological nature of sex (one gamete contributes and X, and another contributes and X or Y) nor to suggest that the binary is called into question by culture or behavior (“gender identity”). Further, to suggest that “gender identity” should be the primary differentiator between the sexes (male and female) brings an absurdity of logic to the entire conversation. It simply doesn’t compute.

          1. Ignoring the biological nature of sex is a straw man argument. I don’t know what you mean by gender identity being used as the primary differentiator between the sexes.

      3. Everything you say and affirm is correct and known to me–and I was intentional by starting at such a fundamental and biological basis, and by using “male and female.”

        What has happened is that society has allowed “gender identity” [yes, even “gender,” as you note] and “sex” to become conflated (and explicitly so, in Obama’s “Dear Colleague” Title IX letter) as one in the same. By defining biological sex clearly, we at least limit the assertion that a “trans-woman IS a woman,” we can make clearer the distinctions between what you ARE and what you BELIEVE yourself to be (or want to be), and we can start defining the argument as it should be: Facts vs. Belief.

        Trans ideology most closely approximates a religious conviction, in my view–but the trans lobby has defined the belief as reality. We have to first disabuse anyone of that view, then we can start solving the issues at hand. For now, it seems that much of the law is willing to treat “gender identity” as “sex”–and that’s a problem.

        The issue of the intersex is easily dispatched using the above five-point framework, too, since they fail the first XX/XY test, and usually align with the hormonal levels test or external/internal organs (though not always of course!). Ultimately a judge can decide (and even for the most firmly-convicted trans person, perhaps!). [I don’t think there’s any evidence to suggest that intersex conditions are “vanishingly rare”–I’d be interested in a substantiation of that, since it doesn’t align with what I’ve seen].

        1. I don’t think there’s any evidence to suggest that intersex conditions are “vanishingly rare”–I’d be interested in a substantiation of that, since it doesn’t align with what I’ve seen

          It all depends on what you mean by “intersex” 🙂

          A figure of about 2% has been cited many times, because that’s politically useful in trying to establish that there are lots of people who are neither male nor female.

          But in fact the real percentage is less than a hundreth of that – ie less than 0.02%.

          The reason for the disparity is that the 2% figure includes people with disorders of sexual develpment – ie folk whose sexual organs do not develop normally – but who are nevertheless unambiguously male, or unambiguously female.

          This is quite a good summary :

          https://www.leonardsax.com/how-common-is-intersex-a-response-to-anne-fausto-sterling/

          Though even this, in its 0.02% estimation of the frequency of intersex folk, still includes some people who are unambiguously male or unambiguously female.

          The number of people who are genuinely intersex, in the sense that you cannot determine their sex from an examination of their gonads, or gonadal tissue, is less than 0.02%.

          But greater than 0%.

    2. Chromosomally. XX is female, XY is male.

      No.

      Your sex is part of your phenotype, not your genotype.

      A phenotype which provides you with the equipment, if it functions properly, to create sperm is male. And, mutatis mutandis, a female makes eggs.

      What precise pathway chromosomes, genes, hormones etc take to get you testes or ovaries is no doubt very interesting, but it is irrelevant to what sex you are. In humans there are strange anomalies like the SRY gene crossing over onto the X chromosome which can cause a human with XX genotype to be male. In birds, the sex determining genes are different from those in mammals, and in some animals, sex is not determined by genes at all but by temperature.

      But although this is very important for how we, our fellow mammals, and birds and crocodiles, develop into males and females, it’s irrelevant to the determination of what sex each of us actually is.

      It’s very important to understand sex as an animal kingdom wide feature of sexual reproduction, which is relentlessly binary. There are only two types of sex cell, sperm and egg. Though some creatures may be hermaphrodites – both male and female – and some may actually change sex, from being sperm producers to egg producers – there are only two sexes.

      Not only is XX and XY technically wrong as the definer of sex – though in practice it’s almost always right – but it also misleads one into thinking about sex from a parochial human point of view, allowing weak minds to imagine it has something to do with human culture.

      It’s not parochially human and it’s nothing to do with culture. It’s ubiquitous. Sex is binary in all sexual reproducers throughout the animal kingdom.

      It’s not peculiar to humans, or human chromosomes. It’s all about sperm and eggs. If you find a creature with testes (ie any kind of sperm producing organ) it’s male. You do not need to know anything about its genotype to make that determination. And nothing you could discover about its genotype could affect that determination.

      1. Hmm. I think you’re confusing the issue by going deep and wide in the animal kingdom, and in fact you admit that “in some animals, sex is not determined by genes at all but by temperature.” Does that not reason that in other animals, sex IS determined by genes (as it is in humans)? All of the essential cascading “pathways” that you note in humans, come *from* the XX or XY chromosomes. And you rightly note that there are exceptions or “strange anomalies,” but having eleven fingers doesn’t disprove that humans have ten fingers–it’s just an interesting anomaly. Normal-acting XX and XY chromosomes have a predictable path that forms a good rule about sex and the gametes they’ll ultimately contribute.

        Perhaps we agree more than you think. The first test, only, is chromosomal. You see that I have further phenotypical tests further down, right? I acknowledge that there are exceptions to the chromosomal development which should be considered in the whole sex-determination-thingy.

        Yes, biological sex is complicated, but it’s not confusing. Yes, there is some variation, but the variation isn’t very wide, or meaningful. And if it comes down to sperm and egg, at least we can agree that an egg NEVER contains an X chromosome–right? And if you want to make charges about being parochial, I think it’s certainly overly-simplistic to just say “testes=male”–especially since we can imagine some developmental problem in which testes never develop at all–and fails to address how to define a female (absence of testes, or the mandatory presence of ovaries?).

        I guess I’ll conclude by asking you to give me YOUR test of whether someone is a male or female–what is your near-airtight scientific test?

        [Maybe you can further indulge me by explaining your reasoning behind this sentence, which I don’t understand: “But although this is very important for how we, our fellow mammals, and birds and crocodiles, develop into males and females, it’s irrelevant to the determination of what sex each of us actually is.” What IS relevant to the determination of what sex actually is, in your viewpoint? Thanks for the engagement!]

        1. I think nine tenths of your confusion is entirely my fault, for shamefully and lazily using “determine” in two different senses in the same comment. And in places which are central to the argument. So my very bad. I apologise.

          https://www.dictionary.com/browse/determine?s=t

          In the sentence “In birds, the sex determining genes are different from those in mammals, and in some animals, sex is not determined by genes at all but by temperature.”

          I am using ‘determine in sense 4

          4. to cause, affect, or control; fix or decide causally:

          ie I am talking about what causes an organism to have sex A or sex B. And “cause” is the word I should have used. Though strictly the cause is indirect. Gonads are constructed by the action of hormones, which are typically created under the influence of genes, which are typically found on particular chromosomes. There are potential slips in that causal chain. For example in animals which are born in litters and which therefor share a uterus with siblings, an animal can be affected by the gene products of siblings as well as their own gene products. So a female mouse positioned in utero between two brothers can me more “male” in phenotype than the typical female mouse (though only a bit as to secondary sexual characteristics. The effect is insufficient to affect gonads.

          But when I say :

          But although this is very important for how we, our fellow mammals, and birds and crocodiles, develop into males and females, it’s irrelevant to the determination of what sex each of us actually is.

          and

          You do not need to know anything about its genotype to make that determination. And nothing you could discover about its genotype could affect that determination.

          I am using “determine” in sense 1 :

          1. to settle or decide (a dispute, question, etc.) by an authoritative or conclusive decision.

          I could have used “correctly categorise” instead of “determine.”

          If you reskim my comment with that correction, replacing causal “determine” with “cause” and settling/deciding determine with “correctly categorise” I think you will be acquainted with what I think.

          1. As for my own “scheme” for determining (sense 1) sex in humans, it is the same as my scheme for determining sex in any animal – to examine the phenotype to identify whether the organism is equipped to produce sperm or eggs.

            Actual sperm or egg production is obviously the easiest means of making the identification, but in the absence of that we may also look for gonads, the gamete production organs. And even in the absence of functioning gonads, we can try to identify faulty but readily categorisable non functional gonads. Or gonadal tissue that is identifiable as testes-like or ovary-like.

            In an immature organism we may be able to predict that gonads of a particular type will be created (though as with all predictions about the future, this carries a risk of error.) Thus the genotype of a human fertilized egg is an excellent predictor of future gonads, and so of the type of future gametes, but not an absolutely perfect one. Note though that the possession of a male genotype only predicts sex (using determine in sense 4) it does not define it (using determine in sense 1.) If our prediction turns out to be wrong and a human with what we thought was a male genotype in fact develops ovaries, we don’t have two competing categorisations. We have one correct categorisation – it’s got ovaries so it’s female, and one incorrect prediction – it has XY chromosomes and we expected it to develop testes, but we were wrong.

            You can boil that down for simplicity into – a human with testes, or testes like tissue is male. A human with ovaries, or ovary like tissue is female. And you can use the same scheme for any animal – mammal, bird, crocodilian, whatever.

            Note that my “scheme” does not guarantee that

            (a) an organism may not change sex
            (b) an organism can only be one sex at a time
            (c) an organism must be identifiable as one sex or the other

            But that’s how biological reality is – some animals can change sex, some are both sexes at once, and some never develop either gonads or identifiable gonadal tissue of one sex or the other.

        2. And if it comes down to sperm and egg, at least we can agree that an egg NEVER contains an X chromosome–right?

          I assume you meant Y chromosome ?

          We know that the SRY gene can very occasionally hop to the X chromosome during meiosis, producing an X carrying sperm that can make an XX male. That same process will leave a Y chromosome with no SRY gene which could make it into a sperm. Hence an SRY lacking Y sperm could fertilise an egg, producing an XY female.

          I believe that some examples of Swyer syndrome are thought to be associated with SRY gene error, or even absence, on the Y chromosome. But Swyer syndrome folk, although they develop female genitalia, do not develop ovaries. They just have streak gonads. As they have female genitals they are typicaly categorised as female, though strictly they are “no sex” rather than female as they lack ovarian tissue. Obviously such folk don’t make eggs.

          But I suppose it’s conceivable that some combination of genetic accidents might allow someone with an XY karotype, but an SRY lacking Y, to develop ovaries, and it’s conceivable that such ovaries might be functional. In which case there’d be some Y chromosome carrying eggs.

          But I’ve never heard of such a thing and it seems very unlikely. Genetic abnormality of that magnitude usually makes for infertility.

  15. “Far from being required by Title IX, CIAC’s transgender policy is in tension with ‘the core of Title IX’s purpose’—namely, ensuring that women have an ‘[e]qual opportunity to participate’ in educational programs and activities at covered institutions.”

    Finally, a lick of common sense from the DOJ.

  16. Help me out here because I’m really ignorant of this stuff & want to learn:
    It appears that everyone on this thread quickly moved the discussion to policy v legal reasoning and conclusions.
    Laws and their related amendments should be dealt with by Congress, yes? So, based on the current text of the law, its legislative history, and related legal interpretations, etc., of Title IX, is DOJ correct in its argument(s) on this issue?
    TIA for your patience.

    1. There are two broad schools of legal interpretation.

      One – described as “conservative” – is much as you describe. You stare at the law for a long time and try to puzzle out what it means, without considering what you might personally favor as policy.

      The second – described as “liberal” – is different. You start with policy – what policy would Congress have wanted here, however poorly they turned it into words ? And they must have done it poorly or else it wouldn’t have turned up in court. Fortunately, the very difficult task of discerning what policy Congress would have wanted in this partiular circumstance is greatly simplified by the discovery that Congress’s preferred policy is exactly the same as the liberal Judge happens to favor herself.

      Consequently, all the stuff in this thread about policy is directly on point as an exercise in legal interpretation. We are all imagining ourselves liberal Judges, and what you mistake for political arguments about policy are in fact our attempts to tease out Congress’s policy preferences.

    2. Everyone on both sides of the agrees that if Congress wants to pass a new law clarifying exactly the meaning of Title IX with respect to this dispute (or replacing Title IX with something else, or repealing it without replacement) they can do so via the normal legislative process.

      But until that point, the law they passed previously remains on the books.

  17. Wait, I thought the wingnuts argued that “sex” refers to your biological sex and “gender” refers to how you express yourself.

    A transgender man would have a female sex and a male gender.

    Title IX embraces this argument: discrimination based on sex is prohibited. It does not prohibit discrimination based on gender.

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