Monday, September 9, 2019

Guest Post on Gender Identity, Women's Sports, and the Meaning of "Sex"

DuffyChristine Michelle Duffy (Director, New Jersey Program, Pro Bono Partnership) sends us the following guest post:

It Will Not Be 'Game-Set-Match' for Women's Sports

Earlier this month, The National Law Journal (NLJ) published an op-ed piece by Jennifer Braceras and Anita Milanovich that argues that if the U.S. Supreme Court rules in favor of the gender-affirmed plaintiff, Aimee Stephens, in R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, female athletes will lose the opportunity to compete because “male-to-female transgender athletes” will suddenly flood into women’s sports. Oral argument in that case will be held on October 8.

It’s simply not true that there will be a loss in opportunities. “Male-to-female transgender athletes” have been competing in women’s sports for some time, and there is no significant evidence that “the number of opportunities for biological women and girls” has diminished or that they have an unfair advantage. (The foregoing quoted statements come directly from Braceras and Milanovich’s op-ed.) Moreover, leading medical organizations now recognize gender-affirmed people to be of the sex that matches their gender identity.

The NLJ commissioned a counter-piece to the op-ed, written by Jennifer Pizer, Law and Policy Director for Lambda Legal. Pizer does a terrific job debunking the arguments put forward by Braceras and Milanovich. As Pizer notes, “Their leaps of logic are long indeed, but they won’t win any medals. They mistake the facts, the law and who is at risk.” Though, as your will read below, I do take issue with Pizer, something I rarely do.

Braceras and Milanovich’s thesis is wrong for a number of reasons. Here are three of them.

“Sex,” as Used in Titles VII and IX, Isn’t Just About Whether You Have a Penis or Vagina

First, let’s understand a bit about “sex,” Title VII of the Civil Rights Act of 1964 (applicable to employment), and Title IX of the Education Amendments of 1972 (applicable to educational programs or activities that receive federal financial assistance). Both laws bar discrimination based on “sex.” Braceras and Milanovich state that “[w]hen Congress passed Title VII in 1964, it banned employers from treating an individual less favorably than similarly situated individuals of the opposite biological sex.” Neither Title VII nor Title IX use the term “biological sex” and the Supreme Court hasn’t so limited the reach of those laws.

Early federal case law took the position that “sex” must mean anatomical or chromosomal sex. The judges discounted the complexity of sex by relegating any gray areas to an out-of-bounds category of “the untraditional and unusual.” Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1086 (7th Cir. 1984). These judges were blinded by labels such as “homosexual,” “transgender,” and “transsexual.” These are terms that had—and to some extent still have—strong pejorative meanings as a result of both the long history of the demonization of LGBT people in the Diagnostic and Statistical Manual of Mental Disorders (DSM) and religious beliefs based on the “proper“ roles of men and women in society.

As an aside, employers that argue that their religious beliefs give them carte blanche to discriminate against LGBT individuals are implicitly relying on sex-based stereotypes. It’s not about religion; it’s all about imposing gender roles on people. And the “God made you that way” and, thus, you mustn’t change who you are argument holds no water. Have you heard any religious leaders castigating people who seek surgeries to repair cleft palates and other disfigurations and variations from the “norm” that some people are born with? I haven’t.

Interestingly, the first judge to truly appreciate that “sex” isn’t limited to anatomical or chromosomal sex was John Grady, whose post-trial opinion was reversed by the Seventh Circuit in Ulane. Judge Grady observed:

Prior to my participation in this case, I would have had no doubt that the question of sex was a very straightforward matter of whether you are male or female. That there could be any doubt about that question had simply never occurred to me. I had never been exposed to the arguments or to the problem. After listening to the evidence in this case, it is clear to me that there is no settled definition in the medical community [at this time] as to what we mean by sex. [Ulane v. Eastern Airlines, Inc., 581 F. Supp. 821, 823 (N.D. Ill. 1983), rev’d, 742 F.2d 1081 (7th Cir. 1984).]

Over time, judges began to see that they had misread Title VII and Judge Grady was right. Indeed, in its 2017 en banc decision in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339, 341, 345 (7th Cir. 2017), the Seventh Circuit, in holding that discrimination based on sexual orientation is sex discrimination, observed that its Ulane decision was wrongly decided. The court rejected Ulane’s reliance on “tradition” and “the idea that discrimination based on sexual orientation [or transsexual status] is somehow distinct from sex discrimination,” and recognized that those labels had “obscure[d] the key point”—actually addressing whether there was sex discrimination.

Thirteen years earlier, the Sixth Circuit had reached the same conclusion when it held that the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 US 228 (1989), had “eviscerated” the legal underpinnings of circuit court decisions such as Ulane: “Sex stereotyping based on a person’s gender nonconforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.” Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2014).

And recall that early Title VII case law also didn’t consider sexual harassment, discrimination based on pregnancy, and same-sex discrimination as sex discrimination. Once courts stepped back and realized that sex discrimination was hiding in plain sight, the law changed. And changed for the better.

Indeed, as conservative icon Antonin Scalia explained in Oncale v. Sundowner Offshore Services, 523 U.S. 75, 79 (1998):

[M]ale-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.

If employees such as Aimee Stephens or athletes change their gender expression in order to live their lives in accordance with their gender identity and are then terminated from employment or barred from participating in sports, they have suffered sex discrimination. As the Third Circuit observed in Bennun v. Rutgers State Univ., 941 F.2d 154, 173 (3d Cir. 1991), a Title VII race discrimination case, “[d]iscrimination stems from a reliance on immaterial outward appearances that stereotype an individual with imagined, usually undesirable, characteristics thought to be common to members of the group that shares these superficial traits. It results in a stubborn refusal to judge a person on his [or her] merits as a human being.”

I come back to the meaning of “sex” down below.

The Word “Transgender” Needlessly Confuses the Underlying Issue

Second, let’s address Braceras, Milanovich, and Pizer’s use of the word “transgender.” They can’t be faulted for using it, as it seems most people do. The problem is that the term has no accepted meaning and has changed over time. And it is laden with stereotypes and other baggage.

I avoid the term because it suggests that people who come to accept—or affirm—their gender have “changed” their gender. We often hear that a person “transitioned” from one gender to a different gender or, as Braceras and Milanovich describe it, the person is a “male-to-female transgender athlete.” What has changed, if at all, is the person’s gender expression, as was the case with Stephens.

Consider the following statement Pizer made:

Because we all are made up of our “biological” parts—brain, body and hormones—[Braceras and Milanovich’s] distinction between women and girls who are “biological” and those who are transgender is contrived. But in drawing this line, and asserting that “sex” is a “binary” term, they imply, for example, that girls who are trans aren’t really girls. That’s mistaken, and a set-up for stigma. (Emphasis added.)

Pizer correctly argued the girls are “girls.” End of story. There is no need to refer to them as being “trans.” It adds nothing, other than to foster confusion and a minority group identity and to provide anti-gay groups, who are losing their battle against LGB people, a dog-whistle term to use against their newest target, gender-affirmed and gender-diverse people. The contrived distinction Braceras and Milanovich made has been fostered by the LGBT community’s use of the term transgender.

The reality is that the “sex” or “gender” of a gender-affirmed or gender-diverse person isn’t changing. Braceras and Milanovich essentially limit the term “sex” to whether a person had a penis or vagina at birth. If that is the case, then how do you define a person who has neither a penis nor a vagina? Setting aside external genitalia, how do you define a person who produces a level of testosterone that a male might but the testosterone has had no impact on the development of the person’s body and, as a result, the person looks in all relevant aspects like a “normal” female, including have had a vagina from birth?

When one of my friends read the first draft of this article, I was asked how can there be such people. I suggested that my friend read Spanish hurdler María José Martínez-Patiño’s personal account of being disqualified from international sports competition due to a medial condition called androgen insensitivity syndrome. Or perhaps the story of Polish sprinter Ewa Klobukowska, one of the first international athletes to be disqualified from sports competition because testing revealed that Ewa had a difference in sex development and thus, Ewa was deemed a male. As Sports Illustrated noted, Klobukowska “was ruled ineligible after [the humiliating practice of sex-testing female athletes] determined she had ‘ambiguous genitalia’—although not ambiguous enough to prevent her from giving birth to a child some time later.”

Sex is not just about external genitalia. There are a multitude of elements, including gender identity, that come together to define a person’s sex, some of which are discussed below. If you want to learn more about the mosaic nature of “sex,” see my summary discussion of the Sixth Circuit’s decision in R.G. & G.R. Harris Funeral Homes or my detailed discussion in the sections on “Defining ‘Sex’” and “Differences in Sex Development” in a chapter I wrote on the Americans with Disabilities Act, at pages 50 to 71.

Fear of Those Who Are Unlike Us Is No Excuse for Discrimination

Finally, let’s discuss fear. Fear is at the heart of many asserted defenses to discriminatory conduct directed at people who heretofore were deemed outside the norm or mainstream.

Braceras and Milanovich’s fear that “male-to-female transgender athletes” will flood women’s sports is unfounded. Discrimination on the basis of gender identity or expression is already illegal in over 20 states, covering nearly 50% of the U.S. population. There is barely a trickle of gender-affirmed athletes who seek to compete with persons of the gender that matches their own gender identity.

I wrote this piece at the close of the U.S. Tennis Open. Thus, it is fitting to point to the court opinion that paved the way for Renée Richards to play at—and lose to Virginia Wade in the first round of—the Open. In Richards v. U.S. Tennis Ass’n, 400 N.Y.S.2d 267, 272 (Sup. Ct. 1977), a disability and sex discrimination case brought under New York’s Human Rights Law, the court accepted the opinion of the expert who testified on behalf of Richards. The expert opined that Richards is a woman, regardless of Richards’ chromosomes, because “Dr. Richards is a female, i.e., external genital appearance is that of a female; her internal sex is that of a female who has been hysterectomized and ovariectomized; Dr. Richards is psychologically a woman; endocrinologically female; somatically (muscular tone, height, weight, breasts, physique) Dr. Richards is female and her muscular and fat composition has been transformed to that of a female; socially Dr. Richards is female; Dr. Richards’ gonadal status is that of an ovariectomized female.”

The court also accepted the expert’s conclusion that “Dr. Richards will have no unfair advantage when competing against other women. He says that her muscle development, weight, height and physique fit within the female norm.”

And, to cap it off, the court served up an ace, pointing to Billie Jean King's affidavit, in which the tennis star opined that Richards “does not enjoy physical superiority or strength so as to have an advantage over women competitors in the sport of tennis.”

The governing bodies of major sports as well as educational institutions have addressed—and are continuing to address—the issue of potential physical advantage. The approaches they take have varied and have changed as medical knowledge and experience have been gained and knee-jerk fears have subsided. The few disputes that have arisen in international competitions have been addressed by the Court of Arbitration for Sport (CAS), including its April 2019 decision involving Olympian Caster Semenya, where CAS noted the “case involve[d] a complex collision of scientific, ethical and legal conundrums.” The CAS was able to resolve the matter in a way that doesn’t disenfranchise gender-affirmed people across a broad swath of daily activities and without depriving them of their basic human right to education, employment, and housing.

A Supreme Court ruling in favor of Aimee Stephens will not undermine the ability of governing bodies to set reasonable rules to ensure fair athletic competitions. Rather, it will affirm what the Court said in the opening sentence of its 2015 same-sex marriage opinion in Obergefell v. Hodges: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

As I explained in the preface to Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide:

Being different from majoritarians has resulted in significant economic discrimination against and physical violence directed at all minorities, including LGBT individuals. At their essence, discrimination and violence are about the exercise of power, ignorance of the facts, outright hatred, and/or fear of the unknown. *** If people who are not LGBT are able to see that LGBT people are simply individuals who have normal life desires and struggles, then hopefully they will appreciate that, despite their differences, LGBT people are pretty much the same as they are. Simply put, by recognizing our diversity, we are better able to see our similarity in our common humanity.

I hope that the Supreme Court will rule in favor of Stephens, who simply is a person who wants to live a normal life in accordance with the sex that matches Stephens’ gender identity. Stephens and others like Stephens are not coming out as who they are in order to vanquish an opponent in sport. Rather, they want to vanquish the emotional distress, fear of retribution (e.g., losing one’s job or physical violence), and loneliness that result from hiding one’s true self because of the prejudice and fears of others who haven’t walked in their shoes.

Christine Michelle Duffy is editor-in-chief of the aforementioned Bloomberg BNA treatise and a member of the Board of Visitors of Fenway Health in Boston. Christine avoids the use gendered pronouns in order to be respectful of people who do not identify as female or male. As CAS noted in its opinion, it was “faced with regulations that are dealing with an agreed binary division of athletes for competition, namely male and female, in a world that is not so neatly divided.” Indeed, the latest edition of the DSM, published in 2013, recognized that gender isn’t binary, replacing the phraseology “the other sex” with “the other gender” or “some alternative gender.”

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https://lawprofessors.typepad.com/laborprof_blog/2019/09/guest-post-on-gender-identity-womens-sports-and-the-meaning-of-sex.html

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Comments

I don't think that reply is any good at all, which is a real shame, because there are very good answers to the contentions made in the Braceras/Milanovich op-ed, and the reply piece totally misses them. Rather than rebut the claims made in the original piece, it essentially just castigates anyone who expresses concerns about the integrity of women's sport as a bigot. It's lazy and offensive to anyone who actually cares about sport as such and not just about using it as a convenient platform for virtue signaling.

Let's start with the failings of the original op-ed, which are legion. As Christine's post points out, it goes off the rails at the outset when it claims that "Congress banned employers from treating an individual less favorably than similarly situated individuals of the opposite biological sex." No, it banned them from treating an individual less favorably on account of "sex," full stop. What exactly that term means is the whole interpretive question here.

Braceras/Milanovich then note that Title VII and Title IX are generally construed in parallel, meaning that inclusion of transgender individuals within Title VII will likely be construed to include them within Title IX as well. This is not exactly wrong, but it elides a key distinction between employment and athletics, which is that classifying the sexes into separate activities is completely permissible in athletics, whereas an employer could never get away with segregating men and women doing essentially the same job into separate activities (nor, frankly, would it have any reason to do such a thing).

Braceras/Milanovich then go on to claim that "a ruling interpreting “sex” to include gender identity will undermine the legal justification for maintaining any sex-specific athletic teams at all[.]" This is just nonsense. The legal justification for sex-specific sports teams is the same as the legal justification for weight classes in combat sports or disability classifications in para-sport. Namely, that organizers of competitions have concluded that there are skills that aren't adequately captured by throwing everyone into an open classification where the largest, strongest, or least impaired athletes will have an enormous innate advantage. A 100-pound wrestler can be in a sense a "better wrestler" than a 300-pounder even though he would have zero chance of winning a head-to-head matchup. Classifying athletes by sex is no more sex discrimination than classifying heavyweights separate from lightweights is weight discrimination, or than classifying single-arm amputees separately from quadriplegics is disability discrimination. I suppose one could call classification a form of "separate but equal," but in this case it literally is equal, so the historical stigma associated with that concept is completely missing. There's no discrimination there.

Once we've decided to classify athletes (not a completely obvious choice in all cases; e.g. equestrian sports are not classified at all, but it's safe to say that the vast majority of sports do need classification), the only question, for athletic purposes, is WHICH classification to classify a specific person into. And that is an exceptionally vexed question which cannot be just dismissively hand-waved away-- which is where we start to get into the problems with the Pizer reply piece.

Pizer's first bulleted claim is that "everyone deserves the chance to compete." I totally agree-- but that doesn't mean that everyone "deserves" the chance to compete in a particular classification. If you don't make lightweight in rowing, you don't row in that race. If the parasport classifiers decide you're an S9 instead of an S8, that's where you go (and if they deem you insufficiently impaired, you can be classed out entirely and will have to compete in non-disability sport). The key to understand this issue is to realize that what we classically think of as "men's sports" is really an open class, while what we think of as "women's sports" is a gated class, where the gating mechanism in any modern sport that has any clue what it's doing is based on functional testosterone levels (although they used to use weaker proxies for performance like physical appearance or chromosomes). Everyone can compete in the open class, including women with XY chromosomes. Some XY women can compete in the gated class (like those who have no functional use of testosterone at all because they have complete androgen insensitivity syndrome) but some can't. That's not a referendum on whether they are women or not; it's a referendum on whether they meet a particular set of gating criteria that overlap with gender, but imperfectly.

I'll skip past the second bullet point ("This Isn’t the End of Gender Recognition")-- which is clearly correct; as noted above, Title IX bars unequal treatment of men's and women's sport, not the maintenance of separate classifications. The third argument, though-- that "brain sex" is somehow a meaningful factor in sport-- is nonsensical. There's no evidence that having a "female brain," however you define that term, has the slightest adverse effect on athletic performance. By contrast, the evidence of the effect of testosterone on performance is not just strong, it's incredibly consistent and pervasive across a vast range of athletic activities. We classify sports based on criteria that are relevant to performance. No sport has classes based on hair color (or skin color, to get even more controversial), because hair color and skin color have no effect on performance.

The worst part of the rebuttal, however, is the fourth, in which the piece seems to simply dismiss problems caused by the classification of transgender and intersex athletes as if they weren't real. The 2016 Rio women's 800 meters had a podium made up of three athletes all of whom have XY chromosomes and varying levels of differences in sex development. If testosterone didn't make a difference in athletic performance, that result would be absolutely astounding-- that an entire Olympic podium happened to have almost identical genetic disorders affecting a tiny fraction of one percent of all women. And those women, while having functional testosterone levels much in excess of those of the average person with XX, are far below those of the average person with XY and no genetic disorder. A woman who meets the latter criterion-- in the vast majority of cases, a trans woman who has not physically transitioned with hormone therapy and/or surgery-- will have an enormous athletic advantage over other women. In all but the rarest of circumstances, it's correct from a classification standpoint to require such a woman to compete in the "men's" (again, really OPEN) division.

The fact that bona fide transgender people make up a small percentage of the population is simply not an answer. For one thing, even a small population with a major inherent advantage can beat out a much larger population with a major inherent disadvantage when you're looking at extreme athletic outliers. A tiny fraction of people with XY chromosomes can run a 10.5 second 100 meter dash; there are zero people with XX chromosomes who can do so. Suppose that tiny fraction is about one in ten thousand; in other words, there are about 350,000 XY individuals who can run that fast out of a total male population of 3,500,000,000. If even a tiny fraction of that tiny fraction-- one hundredth of one percent of those hundreds of thousands-- are transgender women and would prefer to run in the women's race, you're looking at 35 trans women running times that cis women have never come close to outside of the massive steroid abuse of the 1980s (and it's worth noting that steroid abuse effectively amounts to artificially upping a body's testosterone levels). A cis woman making an Olympic final could become a vanishingly rare sight.

A second issue: all you need to do is look up "intentional misrepresentation" in parasport to realize that people do, in fact, feign admissibility to gated classifications in an effort to gain recognition as winners. I find this behavior bizarre, but it's obtuse to simply pretend that it never happens. If one were to open women's sport to anyone who claims to have a female-identifying brain, then, it's safe to hypothesize that all or almost all events would ultimately become dominated by trans women, and some small but significant percentage of those women would be men intentionally misrepresenting their gender.

Now, the solution to this is not to impose an overbroad ban of trans women and intersex women from competition, or even necessarily from competition in women's sports; it's to impose limitations on that participation that are based on rigorous scientific evidence, and not just wishful thinking. The answer seems, as I alluded to earlier, to be clear for XY women with normal-range XY functional testosterone levels-- they have to compete in the open/male division. But other situations raise extremely difficult questions. Take the example of a person undergoing hormone therapy to transition. If the science shows that taking testosterone suppressors puts a transitioning XY woman on a level playing field with XX women in a particular sport, then we need to follow that science and say that testosterone suppression makes an XY woman who happens to be undergoing it eligible to compete in the female division. But if the science comes out the other way, then the same woman should be deemed ineligible (and while it's not settled yet, or even very well studied, the science seems to be leaning in the latter direction at this point in many sports-- Ross Tucker very evenhandedly assesses the evidence at https://sportsscientists.com/2019/03/on-transgender-athletes-and-performance-advantages/). It's not a matter that can be settled through ideology or vague generalities.

More generally, we need to get out of the habit of thinking that "athletic sex" has any necessary connection either to "biological sex" or to gender. It's sui generis. Saying "Jane competes in the male division" is not saying that Jane identifies with the male gender, much less that she is "biologically male," which turns out to be a fairly incoherent concept at the margins. I think Christine agrees, since she favorably cites CAS's efforts in this regard (which is not to say that those efforts are necessarily correct in the particulars-- there is a lot of criticism of the science on its merits which I don't really understand well enough to evaluate-- just that they have identified the basic nature of the problem). I'm not at all sure that Pizer agrees, however; that entire piece seems to be built on the fundamentally bizarre notion that athletic sex is some kind of act of self-expression rather than a classification system imposed in order to prevent brute strength from overdominating skill. But we don't do sports classification based on self-expression, or even based on a desire to avoid bullying; it's about fair competition.

What to do about bullying of women competing in the "male" classification, I don't have an adequate answer for (although I think renaming the division to the open division might help-- good luck getting that change through, though), but the answer is surely not to invalidate the athletic hopes of cis women. But the legal answer to the question that Braceras/Milanovich raise is trivially easy: Title IX means that a. every person has a right to be classified into an athletic sex according to objective criteria, and to participate in events based on that classification, and b. the female/gated class has the right to equal school resources as the male/open class. If those rules are followed, then because every individual has the right to equal resource access regardless of which class he or she is classified into, there can be no sex discrimination. The sports question is challenging; the legal question is not, and should not give the slightest pause to any judge otherwise willing to apply the plain language of the law to the facts of this case. I very much suspect that the conservative majority will be unwilling to do so, but that's out of any of our hands.

Posted by: Paul | Sep 15, 2019 1:31:51 PM

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