The original writing of this series took place in March 2019 after Caster Semenya, an intersex Olympic gold medalist and Rio Gold Medalist, was heard at Court of Arbitration for Sport. Over the four days since, much has happened on the ground, which I described as well over the course of the previous four days. I’ve also learned a lot—for all of the hours spent hashing out these issues with generous friends both in and outside of the transgender rights community, I am grateful.
However, it is interesting to look back at how my words have held up over time. For more information on competitive sports, please refer to the Lia Thomas case. The new IOC framework makes it increasingly clear that we must consider the possibility of creating offsets which ensure no other females are excluded. [of the inclusion of transgender women and girls who retain their male sex linked performance advantages].” It would be possible to include the person without any physical mitigation. As to classifications beyond competitive sport, I continue to believe that categorical, group-based differences between males and females—regardless of individuals’ gender identities—affect our lives and opportunities in ways the law properly takes into account.
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This week’s visit was concluded with thoughts about what we can learn by analyzing sex in sports. These insights include who is considered a woman, and how these women are defined. I also consider whether or not they can exist without sex.
Bathrooms, locker rooms and dorms are all places where sex is still segregated. Sex-linked employment and education opportunities are still very common, although they may be less apparent.
There are many reasons they exist. Some of them are about traditions and dormant or dead stereotypes; some are about intrinsic differences and active stereotypes. The anti-discrimination law that is applied to sex aims to preserve the former and to reduce discrimination. RBG in VMI
‘Inherent differences’ between men and women … remain a cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.
Women may use sex classes to help compensate them for’special economic disabilities. [they have]suffered’ to promotet[e]Equal employment opportunities [and]To promote full development of talent and capabilities of all citizens of this Nation. These classifications are no longer used as a way to make or maintain the legal, economic and social inequalities of women.
A sex class that is founded in intrinsic differences, women’s sports is an example. This is used to foster equal opportunity and promote the full potential of women’s talents and abilities. From Sports and Sex“It would not be a mistake for me to assume that.” [sex]Can be taken out of elite sports policy without doing much harm, because biology is what determines competition in this space.
As a way for women to compensate for exclusions or subordinations in the past, STEM-related jobs and educational opportunities are available for them. Since females have been subordinated in these areas and exclusions made on the basis of gender stereotypes regarding cognitive abilities and capabilities of males, we would make a mistake to think that they can read sex out of these empowerment opportunities.
Where classifications remain necessary and useful, such contexts make it right for females to have the upper hand over transgender or gender-neutral women. These contexts do not allow you to identify as a female and be considered a woman. This classification, “women”, is not meant to be a code for non-conforming males. If you allow it, deconstructing sex may take you to the next level.
Rectifying presumptions can, by definition of the word, be rebuttable. Also, transgender girls/women are defined as girls and women in these opportunities and spaces when inclusion is possible without destroying the category or classification.
This is yet another example of how elite sports regulate women’s events. Instead of categorically excluding male-bodied athletes from female events, it conditions their inclusion—and thus their classification as “women”—on dropping their T levels into the female range. It sets the standard for the one trait that is justifiable by the class. This is how elite development sport approaches “girls” in a way that’s both fair and accurate.
Education-based competitive sports can be used to provide the same opportunity for men who identify themselves as females and pubertal males. The NCAA’s eligibility rules are an example. It could also consider unconditional inclusion of transgirls—no physical transition requirement—with offsets that ensure that no otherwise eligible females are themselves excluded as a result. You could consider adding a slot to an event or team that is numerically restricted and including a transgirl. Also, awarding two champions if the transgirl wins for highest prize.
Although I can agree with offsets affecting the medal, position, and lane value, this doesn’t necessarily mean that they will be less valuable for one or the other. This is why it feels right that the policy choices that affect education should not cause any discomfort. In elite sports space, this equation could be different because the signals and economic benefits that come with being the clear winner will affect the entire mission.
In other words, when inherent differences between genders aren’t relevant or the negative stereotypes of females that result from them have been, then there’s no reason to give preference to transwomen over females. I consider these girls’ and womens’ toilets, lockers, dorms, gymnasiums, prisons, and dormitories.
Tradition and other safety and privacy issues are the main reasons for exclusions from these groups. Safety for females in relation to male-bodied people is no small matter, but without a sound evidentiary basis for concluding that trans girls and women are more likely to be problems than other females—for example, more than “the mean girls who have always used [restrooms and related settings] as their safe bullying space”—we can’t justify reading them out.
However, privacy can be a valid concern as reasonable expectations are set in the community and segregated public bathrooms and other similar areas remain the norm. However, this does not necessarily mean the change is impossible or cost-free. Institutional ends won’t be affected by the need to retrofit bathrooms to create individual spaces.
If they aren’t defined on the basis or in part, on female sex, I question whether there can be legal protection for women’s exclusive spaces and possibilities under current law. Can they still exist, for instance, if we no longer allow women to refer to female bodies when we talk of “woman” as it is too “inherently limited and exclusive”. They can still exist, even if sex, which was recommended by the Obama Administration, is removed from the sex discrimination laws and replaced with identity.[a]An individual’s internal [but not necessarily biologically-based]”Since of Gender”
This is the argument that sex-discrimination law has moved away from intangible differences. It now places emphasis on the mutable and individual aspects of gender. This is not the way I interpret cases. It would be difficult to see VMI as an archival concept.
This is my final point. If VMI were relic, if there were nothing left to sex in law, I’m not sure that identity—”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”—could automatically take its place, at least not as a protected class. Think of an Olympic podium featuring three male-bodied competitors in each of three positions in a women’s event. It would not be easy, if it were possible to justifiably allow “women” to leave out female biology.