Friday, May 3, 2019

What can sex-segregated sports tell us about the transgender bathroom debate?

In a Washington Post opinion piece, Monica Hesse questions why we "celebrate" the genetic differences that have allowed Michael Phelps to excel as a competitive swimmer but we "punish" Caster Semenya for the genetic differences that have allowed her to excel as a competitive runner. 
The problem with this premise is that it's like comparing apples and oranges. 

Men and women compete separately because that arrangement is considered fairer to the female competitors. Regardless of whether someone should be considered male or female, that individual might have certain genetic characteristics that give her an unfair advantage over the average woman. If those characteristics sufficiently align with the characteristics that generally give men an advantage over women, then it may be unfair to allow that individual to compete alongside women without mitigating the advantage. Michael Phelps has really long arms and short legs, but the Olympics doesn't have a separate category for swimmers who generally have that advantage over their competitors. By contrast, the Olympics does have a category that recognizes the advantages of higher testosterone levels -- men. By the same token, if a male competitor has low testosterone levels, that might favor allowing him to compete alongside women or to take drugs to raise his testosterone levels.

In my view, the controversy about Semenya is analogous to the controversy about transgender bathroom access. Like sex-segregated sports, sex-segregated bathrooms are intended to recognize some relevant differences between males and females generally. Male and female athletes compete separately because of the genetic advantages that men generally have over women. Sex-segregated bathrooms are intended presumably to recognize the right to bodily privacy. Typically, there is an alignment between birth sex and gender identity, so the general rule that someone should use the bathroom associated with his or her birth sex makes sense, just as it makes sense to allow a female athlete to compete against other women. But when birth sex and gender identity don't align, it may be more appropriate to align bodily privacy with gender identity than with birth sex.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.