Two women, one from Idaho, the other from West Virginia, appeared before the U.S. Supreme Court and asked it to declare unconstitutional the laws in each of their states forbidding them from joining women’s athletic programs. They had both transitioned from being male to being female. In other words, they were both trans-sexual. They had both attempted to join women’s sports programs and been refused. The court, in a 6-3 decision, refused to do as they wished.
It was no big surprise. A Trump-influenced Supreme Court is unlikely to invalidate state laws that discriminate against those who belong to sexual minorities. By Trump’s command, programs to assure full citizen rights to sexual minorities have been eliminated, and everyone’s official sexual identity can now only be “male” or “female.” In the Supreme Court case at issue, the trans women who brought the case were referred to as male.
The court leaned heavily in its decision upon the common practice of creating separate sports teams for men and women because, on average, men and women differ in bodily characteristics that affect performance in physically demanding sports. Men, as a result of evolution, are usually bigger, stronger, heavier and have more physical endurance than women.
In the world of sports, insofar as winning is the primary goal, team victory must be the result only of the players’ abilities. Other circumstances of a game must not favor one team over the other. That’s why a “level playing field” is required, and men and women do not compete.
I don’t dispute the fact that males and females are physically different, on average. nor the common practice, in sports, of taking measures to assure that a winning team has won legitimately and not benefited from circumstantial advantages, like the sex of the players.
And yet, in the case of this Supreme Court case, typical male-female physical differences are by no means the only relevant biological fact. It’s also a biological fact that male children do not begin to develop those physical traits at birth, but only when testosterone begins to be produced by their bodies. It’s the onset of puberty, in other words, when the growth occurs that results in the average physical differences between males and females. It’s true as well that female infants do not develop their distinctive physiques until puberty. For both sexes, puberty doesn’t occur until they are almost ten years old.
At least one of the trans women who challenged the law underwent early treatment to prevent male puberty. These days, parents often learn very early of a child’s determination to live a life other than that which their birth sex suggests and recognize the significance of puberty and the changes it produces. In their children’s interest, they seek to ensure a puberty appropriate to their children’s preferred sex. If they do so, that child will not grow up with the usual physical characteristics of their birth sex.
That suggests that what needs to be assessed, when a trans-female seeks to join a female sports team, is whether her physical characteristics actually fall outside the range of the individual differences exhibited by the non-trans members of that team. In other words, what is called for is the consideration of eligibility on an individual basis. Doing so would not be impracticable. We’re not dealing with thousands, or even hundreds, of potential cases a year.
But there are other, non-biological matters that we should also consider. Let’s keep in mind that the rules of sports are not God-ordained. Our culture creates them, and does so with a variety of purposes in mind. It is not the case that sports participants all play for the same reasons and derive the same values from doing so, nor that those sports-watchers in the stands watch with the same concerns and takeaways. Playing sports is good exercise, it promotes focus, self-discipline, purposeful actions and skills improvement, in some sports it teaches teamwork, and it’s fun. Who wins is not always of prime importance, especially to those friends and parents in the stands. Nor should it be. It’s only when winning becomes the primary goal for both players and watchers that a “level playing field” becomes of great importance. Otherwise, it’s quite possible for the rules to be modified to encourage inclusion and participation.
And why does winning come to matter so much? For one thing, fans value it highly. For no plausible reason, when a fan’s team wins, that fan feels like
a winner too. A high school or university team’s victory is taken to increase the status of its school. Cities, states and nations somehow feel that they share in the victory of their teams.
Of course, at the professional level (and even the university level), money is also a factor. Winning, in a variety of ways, can bring more money to a player and his or her teammates. To those who bet on games (and that’s a lot of people), winning means profits. For these players and fans, winning is of intense interest and that “level playing field” is essential.
But, in any case, in the sports case being discussed, it was the state governments, not sports officials, that forbade female team membership by trans-women. It’s therefore relevant to ask: how are trans-women being treated in our culture as a whole, not just in the sports sub-culture? The answer is: they are commonly discriminated against. Their freedom to live their lives as they wish, in accordance with their instinctive and profound convictions about their own natures, is disputed. Many Christians see people’s birth sex as what God decreed. Yet trans women are not criminals or psychopaths. They seek to live normal lives and receive the respect and consideration that all citizens deserve. They are, in a way, like people born with physical or mental disabilities, who receive the sympathy and support of everyone. Their disability is that they must cope with a deeply felt sexual identity that conflicts with that of their bodies. Yet, if they take the opportunity to remedy that disability, they are branded as offensive sexual deviants.
I conclude that it would have been both just and humane of the court to strike down state laws that impose blanket sports ineligibility upon trans women. Instead, the court has allowed those laws to remain. It’s a modern-day Jim Crow phenomenon, but what’s being perpetuated isn’t racial injustice; it’s a denial of people’s right to be who they are.
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