In one of its opening acts the Biden Administration promulgated an executive order that sets forth its position regarding federal anti-discrimination policy under Title VII of the Civil Rights Act of 1964. This order may have far reaching effects on the federal government’s policies regarding discrimination in employment, eligibility for military service, and athletics at publicly financed institutions. It is the latter that we will examine here.
The order reads in relevant part: “Every person should be treated with respect and dignity… and… should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports. The unstated implication of this is that, as Abigail Shrier observes in her recent Wall Street Journal editorial, “Any school that receives federal funding—including nearly every public high school—must either allow biological boys who self-identify as girls onto girls’ sports teams or face administrative action from the Education Department.”
She then notes that many authorities foresee that such a policy will have a devastating impact of women’s sports because male athletes that go through puberty without hormone suppression therapy will inevitably enjoy an insurmountable advantage over women in any athletic contest involving speed, strength, size, agility, and so forth.[i] Ms. Shrier cites as an example the case of “the American runner Allyson Felix, a woman with more gold medals than Usain Bolt. Her lifetime best for the 400-meter run is 49.26 seconds. Based on 2018 data, nearly 300 high-school boys in the U.S. alone could beat it.” This huge disparity is present in every track and field event, as shown in this useful database.[ii]
Forcing athletes who went through puberty as women to compete with biological males[iii] in high school and college sports represents a gross injustice, as they have no realistic chance of winning. This order has already been challenged in court, but if upheld it would deprive many young women of the variety of benefits associated with competitive sports, including enhanced self-esteem, camaraderie, fun, the possibility of college scholarships, etc.
Our various states have adopted starkly different approaches to resolving this issue. According to USA Today, citing the Women’s Sports Policy Working Group, 10 require males and females to compete based on their birth sex, full stop; 17 (+ D.C.) permit trans girls to compete without condition in girls’ sports; 17 have adopted a policy similar to that of the NCAA (the body that governs college sports) which allows trans women to compete against biological women after taking gender-affirming hormones for a year; and six states have no policy at all regarding gender identity and competitive sports.
I contend that only the first option is morally defensible. As noted above, the second of these responses inflicts a gross injustice on female competitors, while the third represents a hopelessly incoherent effort to equalize the great disparities in athletic potential that exist naturally between the sexes.[iv] Sadly, the obstacle here is not practical, but conceptual, akin to drawing a triangle with four sides.
Consider the following thought experiment: “Joe” is a world class, Greco-Roman wrestler who competes in the (unlimited) 130-kilogram (286 lb.) weight division. However, Joe has from his youth felt deeply alienated from his hulking body, and identifies as a much smaller man, his “true self.” He therefore demands to compete in the 67 kg (148 lb.) division. If we wish to accommodate him, what adjustments should we make that would permit him to compete on even terms with men half his size: massive injections of testosterone suppressing drugs; half that dosage; wrestling with one arm tied behind his back; both legs tied together, etc.? Any choice here is entirely arbitrary.
This whole exercise is quixotic because “fair” competition can only occur within categories that define eligibility in terms of a common baseline of objective, physical characteristics. For example, if our society only held tennis tournaments open to all players, this would be manifestly unfair to boys, girls and adult women, seniors, and para-athletes, who would have no chance of prevailing over adult men. Accordingly, in addition to tournaments for the last-mentioned group, we hold competitions restricted to those younger (or older) than a specific age, the wheelchair bound, and (by the same logic) biological females.
Within such divisions, success is determined by natural ability, the will to win, training, the strategy and tactics adopted, and so on. All members of each grouping possess these traits and attributes, albeit to different degrees. An equitable contest then reveals who among those sharing the class-defining attributes can most effectively utilize these tools.
So, to return to Joe, he shouldn’t be permitted to compete in the 67 kg division, because he’s not a member. Even were he to emerge victorious, Joe cannot claim to be the best wrestler at that weight, merely that he defeated all the competitors he faced, even with the handicap we impose on him. Such contrived competitions make no more sense than entering a greyhound in the Kentucky Derby, but making the poor animal run on three legs or the like. Similarly, transgender females are not part of the class of persons that are born female. There is no point in trying to equalize things between these individuals because they don’t share the requisite set of baseline attributes, making fair competition between them impossible.
Clearly, there are persons that are born intersex; that is, “a group of conditions where there is a discrepancy between the external genitals and the internal genitals (the testes and ovaries).” There are also biological men, that are not intersex, who identify and wish to compete as females. These communities are also entitled to participate in athletic competitions that are run equitably. Accordingly, they should compete among themselves, divided as necessary into the categories (age, weight, etc.) described above. This is the only proposal that enables all athletes to enjoy the myriad rewards of fair competition.
___________________________
[i] Trans men have no inherent advantage over biological men, and so there is no analogous threat to fair competition.
[ii] I fear Ms. Shrier has dramatically understated her case. According to the linked data set, the men’s world record in the 400 meters is 43.03 seconds, the women’s is 47.60, an astonishing 4.57 second difference. This source records the 4000 fastest official men’s times clocked in this event, the slowest of which is 45.20. In other words, there are 4000 posted men’s times that are at least 2.17 seconds faster than the women’s world record. Obviously, the slower the time, the greater the number of men able to achieve it. I have no doubt that if anyone actually bothered to track this, there are something like 50,000 official men’s times faster than the women’s world record.
[iii] For purposes of this essay, a “biological male” is a person born with XY chromosomes, while a “biological female” is a person born with XX chromosomes.
[iv] The International Olympic Committee has its own version of this ill-conceived policy, defining eligibility solely on the testosterone level of the putative female athletes.
