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 and Rio Gold Medalist Caster Semenya's hearing at the Court of Arbitration for Sport (CAS). Since then, I've come to realize the extent to which intersectional feminists are committed to a definition of "woman" that, as far as I can tell, includes all gender minorities without regard to whether they are female or even identify as women, e.g., they include in the category transgender men and nonbinary people as well as transgender women who have not and may never transition physically. I've also realized that they are deeply committed to establishing a hierarchy of suffering within the classification and to distributing social goods accordingly.
As Representative Val Demings said to me of transgender women and girls in sport when I was testifying at the Equality Act hearing in April 2019, "It's their turn now." The Title IX office in Biden's Department of Education told us essentially the same thing when they explained that if there were only one seat left on the girls' team bus and two otherwise similarly situated athletes vying for the spot, a female and a transgender girl, it would go to the transgender girl. It turns out the assumption I made back in March 2019 that it was obviously acceptable among feminists to center females in the female category was wrong.
Relatedly, as I explained in the update to my first post, the Biden Administration has now officially taken the position that it's unacceptable to discriminate on the basis of sex within "girl's" sport. Adherents to this approach have either grown in number or opponents are afraid to be contrary lest they be branded a TERF and a transphobe—as I was when I gave a talk about a Title IX paper for FedSoc at UCLA Law in spring 2020. Where we actually stand on transgender people and their rights is irrelevant to those who demand adherence to this orthodoxy and who otherwise live for the theater of it. In any event, the Title IX commitments I was assuming were solid when I wrote this post in 2019 are much more fragile today. Oh, and Rachel McKinnon has changed her name to Veronica Ivy.
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As the long history of sex testing in elite sport reflects, sex segregation has been the design from the beginning. The point has always been to exclude male-bodied athletes from women's events so that females could be featured despite their relative physical disadvantages. Title IX represents a modern version of this original design, requiring schools receiving federal funds to establish separate women's teams and to set aside more or less equal funding, facilities, coaches, and competitive opportunities for their female student-athletes.
The goals of elite sport today remain consistent: to ensure the same number of spots in finals and on podiums for females as for males, both as an end unto itself and as an expressive vehicle to empower girls and women in society more generally. An identity-based eligibility standard for women's sport would do different work for those whose gender identity doesn't match their biology, but it would be category defeating.
Here's a summary of the value the women's category provides to individuals and to society:
- Individual goods include the physical, developmental, psychological, reputational, and financial rewards that result from competing and winning at the elite level. The long-term benefits are less well known but important. Per Donna de Varona of the Women's Sports Foundation and Beth Brooke-Marciniak of Ernst & Young: "Girls who play sport stay in school longer, suffer fewer health problems, enter the labor force at higher rates, and are more likely to land better jobs. They are also more likely to lead. EY research shows stunningly that 94% percent of women C-Suite executives today played sport, and over half played at a university level."
- Stakeholder goods include the political, economic, and psychological benefits that flow from close association with individual winners. Here are just a few of the women whose achievements are recognized as having produced important stakeholder value. If the category were not defined on the basis of sex, we would not know their names:Serena Williams. Katy Ledecky. Allyson Felix. Alex Morgan.
- Societal goods include, from Sex in Sport, "'challenging rigid gender norms' so that girls and women gain "'opportunities to become supported, educated and empowered.'" Per de Varona and Brooke-Marciniak, "[I]nvestment in girls and sport has significant [economic] development payoffs and contributes to economic growth overall. Sport empowers women and contributes to gender equality globally."
Defining the category on the basis of sex is necessary to the attainment of these goods. As detailed in yesterday's post, "Any other option that has males and females competing together works mainly to highlight, isolate, and display male bodies and hierarchies." And from the NYT: "This may sound like hyperbole but it isn't. In competitive sport, winning and room at the top are what ultimately matter, so relative numbers are irrelevant. It doesn't matter that there are 100 females and three males in a girls' race if the three males win spots in the final or on the podium because they are males."
It is precisely because success in the elite sport space is tied to our distinct reproductive biology that, in the absence of a compromise, there is no reconciling the rights of females and the interests of society in this version of women's sport with the interests of male-bodied athletes who identify as women and their constituencies. We have to choose: Do we continue to support women's sport as a protected category, with or without a conditional right of entry for male-bodied athletes who identify as female? Or, do we abandon that project in favor of the different one that is recognizing individuals based exclusively on their gender identity?
I don't see a compelling argument for abandoning the women's category in its current form.
Doing so would have real costs—see above—which I doubt could be outweighed by the benefits thus far articulated by the other side. The most important or weighty of these benefits include respect for individual autonomy, and enhanced empathy for and equal treatment of historically marginalized people. But to me, they apply equally to females. And I don't find it useful to compete over which of us has suffered most from our respective marginalizations.
The category is also clearly lawful. Equal protection doctrine allows, and in some cases encourages, anti-subordination measures designed to empower females based on inherent (sex) differences. See RBG in VMI and also Title IX. In the human rights space, this is through the UN Convention on the Elimination of All forms of Discrimination against Women. Although there is a lot of important advocacy around developing a comparable convention for people who are intersex and transgender, there are as yet no such protections on the books. There is certainly no preemptive right to self-identify into lawfully established set asides for females. The ubiquitous "rights talk" on social media and in the popular press is, to date, just that.
Early on, the loudest arguments in support of an identity-based category came from intersex advocates who seek to convince their audience that the science around the biology of sex is the faulty product of medical imperialism and the patriarchy; that sex is impossible to define; that those who disagree with this conclusion are ignorant; and that classifying people based on the secondary sex characteristics that develop from male T levels is racist and/or inappropriately privileges a particular view of femininity. Without going too far down the rabbit hole, I tried to address these points in Sex in Sport, with a focus on the harm that deconstructing sex to the point of nonexistence would cause for females.
Their Alice in Wonderland quality is also why I appreciate Rachel McKinnon. She is refreshingly smart about sport and also honest about science. Because of this, we're now finally in a position to debate the right issues. Here she is in USA Today, making the argument the ACLU has also adopted:
We cannot have a woman legally recognized as a trans woman in society, and not be recognized that way in sport. Focusing on performance advantage is largely irrelevant because this is a rights issue. We shouldn't be worried about trans people taking over the Olympics. We should be worried about their fairness and human rights instead.
I'll close out today with these three brief reactions:
First, as I note above, the claim that the integrity of sport is subordinate to the rights of transwomen to be classified as they identify assumes rights not yet established, and doesn't otherwise resolve the conflict since it's also a rights issue for females.
Second, sport already recognizes transwomen as women and includes them in competition as such, so long as they don't enter as superwomen. (More on this tomorrow.) This qualification isn't wrong a priori, either legally or logically, i.e., transwomen aren't similarly situated to biological females in the ways that matter to the category, and sport isn't the only space where—regardless of how we identify—our reproductive biology is always relevant. See Joanna Harper's terrific work on athletic gender.
And then, welcome to my world. While we've made lots of progress towards women's equality over the last century, the notion that we might walk this earth—go for a job interview, a run in the forest, or onto the streets at night—without people taking our reproductive sex into account is foreign to every female I know. I welcome all transwomen to the club who want in, and it doesn't bother me that they might also be inconvenienced from time to time by having their reproductive biology considered, especially when it actually matters.
Third, describing performance advantage as "largely irrelevant" subordinates the integrity of sport and its legitimate, multifaceted goals to those of McKinnon's own cause, assuming the answer to what is clearly a contested issue. It also ignores that the women's category wouldn't exist as a space for transwomen to enter were it not for the sex-linked advantages males have over females. If this rationale is rejected, I don't see how or why the category survives.