The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This series was originally written and posted in March 2019, after intersex athlete Caster Semenya's hearing at the Court of Arbitration for Sport (CAS). Since then, a lot has changed:
The House of Representatives (in passing The Equality Act) and the Biden Administration (in Title IX litigation) have taken the position that distinctions on the basis of sex in regulated programs are prohibited, no exceptions, full stop. According to them, maybe we can still have "girls'" and "women's" sport, but if we do, the eligibility standards for the category can't discriminate on the basis of sex, which they define to include gender identity. In other words, "women's" sports can include both males and females without regard to their gender identity or their physical status. They've provided no explanation for what makes the categories meaningful in light of this.
In response, the GOP has made the "protection of girls' and women's sport" an election issue, and along the way has managed to enact a series of measures that unnecessarily bar all transgender girls from girls' school sports teams, no exceptions, full stop. For the GOP, it doesn't matter what the transgender girl's age or physical status is, or whether it's a competitive or recreational environment. As I've written elsewhere, some of their proponents have misused me and my work in support of theirs.
In the meantime, sports policymakers have turned their full attentions to the question how to include transgender women and girls on female teams and in female events; with colleagues I co-founded the Women's Sports Policy Working Group (WSPG) to help develop science-based solutions to this challenge; and most recently, the IOC issued new non-binding guidance to the international federations designed to do the same. Still, as the story of Penn swimmer Lia Thomas exemplifies, the more things change, the more they remain the same.
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Who would have thought that in the midst of the #MeToo moment, just as a film on menstruation gets an Oscar and we're celebrating RBG's jurisprudential legacy—including the part about celebrating inherent differences, we'd also be debating whether biological sex is a real thing or just a social construct, and whether, if it's real – if there is a "female body" and a "male body" with variations on the themes – it's ok to talk about it and to take it into account in the defense and development of law and policy. But here we are. And what a drama it is, especially in this period in the elite sports space. Martina Navratilova playing doubles with Rich Lowry against Rachel McKinnon and Scott Shackford. The LGBTQI coalition splintering, (I)ntersex versus (T)ransgender. Feminists of one stripe against feminists of another. Conservatives about sex and sexuality actively enjoying our civil war. Sex clearly gets us all exercised.
Using sports as a lens, I've been working to understand whether biological sex continues to be salient as a basis for classification in the institutional settings in which it is used, either as "sex" or by its synonym "gender." Or, was the Obama Administration right that "sex" should be erased from sex discrimination law and replaced by "gender", which it defined non-synonymously: "An individual's internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual's sex assigned at birth."
The development of a really good answer to this question has broad societal significance, but it is most immediately important to two groups. The first is biological females, because we are the intended beneficiaries of the remaining positive sex classifications; and, as continuing disparities and subordinations on the basis of reproductive sex reflect, they're still necessary. The second is biological males who identify as girls and women and so understandably want to be recognized in life and in law as they self-define, rather than according to the ambiguous or incongruent bodies they inhabit.
This is what's on the table:
Who is a woman for purposes of women's only spaces and set asides like women's sport, women's health, women's education, and women's prisons?
Should these spaces and set asides – originally designed "on the basis of sex" or else to remedy the effects of exclusions and subordinations on the basis of stereotypes about sex – continue to privilege female-bodied people, or should they be sex neutral so as not to exclude male-bodied people who identify as women or as gender fluid?
Is there even a winning argument under existing doctrine for a women's only space or set-aside that is not either directly or indirectly based in inherent differences, i.e., that is female sex blind?
If there isn't one, what does the winning argument under a new, gender identity-based doctrine look like, and can it (also) satisfy the goals of the original, i.e., can it protect and empower female-bodied persons who are and probably always will be subject to different treatment precisely because of their reproductive biology, regardless of how they identify?
I have five [posts] to give you a sense of how these issues play out in the conversation about eligibility for the women's category in elite sport. I'll mostly be excerpting from my article Sex in Sport which allows for a deep dive if you're so inclined.
[In the second post], I'll focus on inherent differences, i.e., on the relevant biology and on arguments about that biology. This includes the process of sex differentiation and arguments about whether sex is binary; and the physiology that drives the performance gap and arguments about whether it's really all about T (testosterone). Here, I'll dismiss the weirdly popular but baseless argument that testes and male T levels are no different than other superior body parts and socioeconomic advantages.
[In the third post], I'll summarize the case for retaining sex or at least sex-linked traits as the basis for classification into girls' and women's elite sport. I'll focus on defending Title IX, but its goals and the ways it has developed to achieve them have analogues across sport.
[In the fourth post], I'll tackle sex testing, with a focus on the current iteration which uses testosterone as a way both to distinguish males from females, and to include male-bodied athletes who identify as girls and women into the female category. This approach, which is reflected in the eligibility rule that Caster Semenya has challenged at the Court of Arbitration for Sport, has been subject to a years-long, extraordinarily aggressive public assault by academics and advocates who disdain the physical sciences and have deconstructed sex to the point where nothing remains except identity. And yet it actually represents an extraordinary compromise between complete exclusion—which is anathema to progressives, and unconditional inclusion—which would be category defeating.
[In the fifth post], I'll return to the issues I introduced above, with some concluding thoughts on: who is a woman for purposes of women's only spaces beyond sport; whether the classification should be based on identity and not biology; and whether existing doctrine can accommodate female sex blind claims.