In Defense of the Status Quo

The original version of this series was posted March 2019 after Caster Semenya (intersex Olympian and Rio Gold Medalist)’s hearing at Court of Arbitration for Sport. After Caster Semenya’s hearing at the Court of Arbitration for Sport (CAS), I have come to understand the commitment that intersectional feminists make to an inclusive definition of woman. This includes transgender people and those who may not or never transgender. It has become clear that these feminists are committed to the establishment of a hierarchy within this classification, and to the distribution of social goods in accordance with it.

When I testified at the Equality Act hearing, Val Demings told me that transgender girls and women in sport were now in their place. Biden’s Department of Education’s Title IX office said the exact same thing. They explained to us that there would be one spot on the girls’ bus for a girl and two other similarly-positioned athletes, and the seat would then go to the girl. Turns out, my March 2019 assumption that it was acceptable for feminists to place females in the male category was false.

As I mentioned in my update to my initial post, the Biden Administration now has the official position that discrimination based on sex is unacceptable within girls’ sports. 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. To those who insist on this orthodoxy, and live for it, where the truth is about transgender persons and their rights are irrelevant. In any case, I find that the Title IX obligations I thought were firm when I wrote this article in 2019 are less so today. Rachel McKinnon’s name has been changed to Veronica Ivy.

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Sex segregation is a design principle that has existed since the inception of elite sport’s sex testing. It has been the goal to keep male-bodied athletes out of women’s events in order that they can be represented, despite any physical limitations. Title IX, which is an updated version of the original design, requires that schools receive federal funds to form separate women’s team and provide more or less equal funding for facilities, coaches and competition opportunities for their female student athletes.

Today’s elite sport goals remain the same: To ensure that females are given equal opportunities to compete in finals and to be on podiums. This is both an objective and a means to empower women and girls in society. A gender-based qualification standard for women’s sports would work differently for people whose gender identity is not consistent with their biology. However, it would also be dangerous.

Below is a brief summary of what the women’s group can do for individuals and the society.

  • The individual goods are the financial, emotional, reputational and physical benefits that come from winning and competing at an elite level. Although the long-term rewards are not well-known, they are still 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. These women are more likely to be leaders. According to EY, 94% of C-Suite women executives played sport in 2017, and more than half were at university.
  • Stakeholder goods are the psychological, political, and economic benefits that result from close relationships with individuals who win. Below are just some of the notable women whose contributions have been recognized for their important stakeholder benefit. We wouldn’t know the names of these women if the categories were defined solely on the basis sex. Aly Raisman. Brandi Chastain. Simone Manuel. Katie Ledecky. Michelle Carter. Dana Vollmer. Ibtihaj Mohammed.
  • Societal goods can be described as: Sports and Sex“[‘challenging rigid Gender norms’] so that girls/women gain “…opportunities for becoming supported, educated, empowered.” Brooke-Marciniak and de Varona,[I]The importance of investing in sport and girls has been recognized [economic]Development pays off and leads to overall economic growth. Sport is empowering for women, and it contributes to global gender equality.

To attain these goods, it is essential to define the category based on sex. Yesterday’s blog post explains that “any other option where males and women compete together serves mainly to isolate and show male hierarchies and bodies.” The NYT says that although it may seem exaggerated, this is actually true. It is the winning and being in the top two that matter most in competitive sport. Therefore, relative numbers do not apply. If there are 100 girls and three men in a girl’s race, it doesn’t really matter if three of the males are in the finals or the podium.

Because of our unique reproductive biology, success in elite sports is dependent on it. Without a compromise, the rights and interests of both female athletes and society can’t be reconciled with those of men-bodied women who identify as such. It is up to us to decide whether we support women’s sports as a protected group, or not. Do we give up on that project and accept the new one, which recognizes individuals solely based on gender identity?

There is no compelling reason to abandon the current women’s category.

Doing so would have real costs—see above—which I doubt could be outweighed by the benefits thus far articulated by the other side. Respect for one’s autonomy as well as increased empathy for those who are historically excluded and equal treatment should be the most prominent and significant of these benefits. These benefits apply equally to women to my mind. It doesn’t make sense to try and determine which one of us suffered the most from our marginalizations.

This category is clearly legal. The Equal Protection doctrine permits and encourages anti-subordination actions that empower women based on their inherent (sexual) differences. RBG is available in VMI. Also Title IX. This is the UN Convention on the Elimination of All Forms of Discrimination against Women. While there has been a lot more advocacy for a similar convention to protect intersex people and transgenders, it is still not in place. It is not possible to identify yourself in legally established sets asides for women. It is this “rights talk”, which has been so prevalent on social media, and in popular press, that we have seen.

The intersex community was the most vocal supporter of an identity-based group. These advocates tried to convince the audience that science about sex has been distorted by medical imperialism, patriarchy and medical imperialism; that sex cannot be defined; that anyone who does not agree with their conclusion are ignorant; that classifying people according to secondary sexual characteristics that emerge from male levels of the T level is discriminatory/inappropriately privileges a certain view of femininity and that this is racism. These are the points I attempted to address without going into too much detail. Sports and SexThis article focuses on the damage that deconstructing sex would do to females.

Rachel McKinnon is my favorite because of her Alice in Wonderland qualities. Her knowledge of science and sport is both refreshingly sharp. We are now able to discuss the relevant issues because of her intelligence. She is here in USA Today, making arguments for the ACLU’s adoption:

Legally, a transwoman cannot be considered a female in society. However, she can’t not be acknowledged in the sport world as such. Performance advantage should not be the focus of this discussion. This is a matter of rights. It is not a concern to worry about transgender people taking control of the Olympics. Instead, we should worry about trans people’s fairness and their human rights.

These are my three quick reactions to close today’s session:

First of all, I want to point out that the claim that integrity of sport should be subordinated the transwomen’s rights to be classified in the way they identify implies rights not yet established. This doesn’t resolve the conflict because it is also a rights issue.

Second, sports already consider transwomen women, and include them in their competitions, provided they are not considered superwomen. (Learn more about this tomorrow. This qualifier isn’t incorrect 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. Joanna Harper is a brilliant writer on gender in athletics.

Then, I welcome you 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. Transwomen who are interested in joining the club will be welcomed. I don’t mind if they do sometimes feel inconvenienced by being considered for their reproductive biology, especially when that is what it matters.

The third is that McKinnon refers to performance advantage as “largely insignificant” and subordinates sport’s integrity, its legitimate multifaceted goals, to McKinnon, who assumes McKinnon has the right answer for what is obviously a contentious issue. The women’s section wouldn’t exist if there weren’t the sex advantages that males over females had. If that argument is rejected, it’s hard to see why this category exists.’s first post was entitled In Defense of the Status Quo