Who Is a “Woman” in Sport

After Caster Semenya, an intersex-athlete, was heard at Court of Arbitration for Sport in March 2019, this series was written and published. Many things have changed since that time:

The House of Representatives and Biden Administration, in Title IX litigation, have both stated that any discrimination on the basis of sexual orientation is strictly prohibited. They believe that we may be able to have “girls” and “womens” sport. However, the criteria for eligibility cannot discriminate based on sex. In other words “women’s” sports are open to both males as well as females, without consideration of gender identity and physical status. This leaves no reason for the meaning of these categories.

The GOP responded by making “protection girls’ and womens’ sport” an election issue and enacting a number of measures to unnecessarily ban all transgender girls from participating in girls’ school athletic teams. It doesn’t matter if the transgender girl is young or old, or if it’s competitive or recreational. Some of their supporters have made use of me and my work to support theirs, as I’ve previously written.

Sports policymakers are now focusing their attention on how transgender girls and women can be included in events and teams. I founded the Women’s Sports Policy Working Group with my colleagues to develop science-based solutions. The IOC recently issued non-binding guidelines to international federations. As Penn’s Lia Thomas illustrates, things can change but they stay the same.

[* * *]

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. Here we are. It is quite a drama, particularly in the elite sport space. Martina Navratilova plays doubles with Rich Lowry, against Rachel McKinnon & Scott Shackford. Splintering of the LGBTQI coalition: (I)ntersex and (T)ransgender. Feminists from one side against feminists from the other. Conservatives on sex, sexuality and other issues actively enjoy civil war. Evidently, sex is a way to get all of us moving.

I have been using sports to see if biological sex is still relevant as an indicator of gender in institutional contexts. Is it possible that the Obama Administration was right to remove “sex” from sex-discrimination law in favor of “gender”, which is non-synonymous: “An internal sense of gender. It may be male, feminine, none, or any combination thereof, but which could be different than an individual’s birth sex.”

This question is of great social significance. However, it’s most important for two groups. We are biological women, and we should be the beneficiaries of all remaining positive sexual classifications. They’re also necessary, given the continuing disparities in sex and subordinations due to reproductive sex. Second, biological males that identify themselves as females and girls. They want to be recognised in life and law as their own self-defined bodies rather than being defined according to others.

Here’s what is on the table.

For women’s spaces that are exclusively for women, set asides such as women’s sport, 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?

Does existing doctrine allow for any winning arguments in favor of a woman’s exclusive space?

Is there one? If not, how would the new gender identity-based doctrine win the argument and what (also) can it accomplish the goals of the original. For example, will it empower and protect female-bodied individuals who, in spite of their sexual orientation, are likely to be treated differently because of their reproductive biology?

There are five of me [posts]This will give an overview of the issues surrounding women’s eligibility in elite sport. This is a lot of what I will be quoting from. Sports and SexThis allows you to take a deeper dive, if desired.

[In the second post]In this article, I will focus on intrinsic differences. That is, the biology relevant to each case and arguments that surround it. These include arguments regarding sex differentiation, and whether or not sex can be considered binary. Also included are arguments over whether the physiological factors that drive the performance gap as well as arguments about the role of testosterone (T). The absurdly popular, but false argument that testosterone levels in males are different from other superior bodies and have socioeconomic benefits is dismissed here.

[In the third post]Here I will summarize the arguments for keeping sex, or at the very least its sex-linked characteristics as the basis of classification into elite women’s and girls’ sports. I will focus my defense of Title IX. However, the goals it achieved and the methods that were used to accomplish them are similar across all sports.

[In the fourth post]This article will focus on sex testing. It uses testosterone to differentiate males and females and also to add male-bodied athletes who are females and male-bodied men into the female category. Caster Semenya, who has challenged the Court of Arbitration for Sport’s eligibility rule, says that this approach has been the subject of a long-running, extremely aggressive public assault from academics and advocates, who have disregarded the physical sciences, and deconstructed sexuality to the point where there is no other option than 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]With these final thoughts, I will return to the topics I raised above. I will also consider whether classifications should be made based on biology and identity, and whether current doctrines can accept female sexblind claims.