Monday, September 9, 2019
Christine 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.”