Category: Gender

In my previous essay I set the stage for discussing the concern about people switching competition categories to gain something. It is to this matter that I now turn.

The Sickle Cell 5K in Tallahassee is known for its excellent master’s trophy for the overall male and female masters runners. It has consistently been bigger and better than the second and third overall awards. One year a master’s runner was third overall but wanted the male masters’ award instead. This created a problem. While there was no rule about this, there are established running norms: overall places take precedence over the masters category and the masters category takes precedence over age group placing.  So, a 40+ year old runner who placed first to third would get the corresponding overall award. The first 40+ runner outside the top three would get the masters award and the next runner in their age group would win that age group. As would be expected, some people got mad about this runner’s efforts to get the masters award since he was breaking the norms and traditions to get a better award.

His argument, which was not unreasonable, was that he was the first masters runner and hence earned that award. This meant that the 4^th place runner would get third overall. This might sound odd, but (as noted above) the running norms already allow for a person who finishes second in their age group to place first if the person who would win that age group wins an overall or masters award (most races have a no-double-dip rule). While his request did break the norms, he was  in the masters category. One might say that he elected to identify as a masters runner for the purpose of the award. He got the award when the original masters winner did everyone a favor by giving it to him, allowing the awards to continue. But this episode is still spoken of today and switching categories to get a better award is usually seen as questionable. This episode can be used as an analogy.

Suppose that transgender athletes are like the masters athlete: they belong in their chosen category but they are changing from one category to another in order to get a better award (or win). The masters runner could have accepted the third-place award, a transgender runner who identifies as female could stick to competing as male. But by switching categories, the athletes could be seen as gaining an advantage and thus they have an incentive to do so. They also are both picking a category they really belong in, so they are not engaged in a cheat or deceit. But if their motive is to switch for a gain and and in doing so they do harm another athlete, then this would seem to be wrong. The masters runner took the better award from another runner and a transgender athlete who changes categories to win takes away a win from another female athlete. This can be used to ground a moral argument against allowing athletes to change categories to win. That said, there is an easy counter.

Imagine a runner attends a Division 1 school and finds that they are good enough for the division but not good enough to regularly win. They switch to a Division 2 school so they can win regularly. They have changed their category to improve their gains and have “harmed” other runners. They might displace a runner from the team and will take victories that would have gone to other athletes had they not changed their category. While this approach to sports might not seem morally ideal, the runner would not be acting wrongly. They would be Division 2 even if they could have stuck with Division 1. Likewise, for an athlete who switches their gender category by transitioning: one might take issue with someone doing this for an advantage, but this is morally acceptable. It must be noted that people do not transition just to get an advantage. Some readers probably doubt that an athlete can legitimately switch categories, so I now turn to this matter.

Let us go back to the masters award incident but change it slightly. Imagine that the third-place runner is 39 years and 10 months old but decides to identify as a masters runner to get the award. In this case, the issue is easily resolved: age is an objective matter, and they are not a masters runner. Hence, they do not get the award. Likewise, athletes who claim to be female but are not have no right to switch categories. While this might seem to settle the matter, there are at least two replies.

One reply is to go back to the masters case. Imagine that the runner is 39 years old based on his birthday, but he is a devote Catholic who sincerely believes that life begins at conception and sets his age accordingly at over 40. By his religious based standard of age, he is a masters runner. While the official age of runner for racing is based on their birthdate and not their moment of conception, the runner could make an argument based on freedom of religion: he is being discriminated against by the failure of the race officials to recognize that he is at least 40 because his life began at conception under his faith. Likewise, a runner who self-identifies as a female could argue that she is being discriminated against when she is not allowed to select her category based on her beliefs about what it is to be female. Both runners could agree that there is a fact of the matter about being a masters runner or a female runner, but they disagree with the standards being imposed upon them by those who they see as discriminating against them. As such, the debate becomes one of defining category membership.

In the case of age, the dispute would seem to be easy to settle: to avoid charges of attacking religious freedom, the rules about age could be put neutrally to specify that the time from birth is used to determine the competition age of a runner. The standard applies to everyone and intuitively seems fair. In the case of gender, the same approach should be taken: a fair set of standards to categorize people is needed. But gender is much more complicated than age.

If gender were only of concern in sports, then the matter would be easier to address. But gender impacts every aspect of a person’s life and is, of course, a key battleground in the culture wars. As such, even if one makes a good faith effort to develop gender standards for sports categories, this will be a daunting task.  Obviously,  many people think they have the right answer and think they could easily solve the problem by imposing their own views on everyone else.

There are, of course, some easy and obvious sufficient conditions for being admitted into the female category: people with XX chromosomes and female anatomy and physiology get an automatic admission (if they wish).  Beyond that, the debates begin.  Since this matter is complicated and not my area of expertise, I freely admit that I do not have a set of necessary and sufficient conditions. I do not even have a well-considered set of general principles.

One obvious principle is that it would be morally wrong for a male athlete to lie about his identify to gain a competitive advantage. The moral problem is, of course, the intent to deceive to gain an advantage.

This is analogous to my view that it is wrong for person to lie about their religious views to gain something, such as a person who wants to use a religious excuse to get away with discrimination or to avoid paying taxes. My moral assessment would, of course, adjust in cases of sincere belief, even if the person’s belief turns out to be untrue. As with the religion case, there is the practical problem of sorting out when people are lying, though in the United States we generally do not put professed religious beliefs to a test.

While there is no crisis in sports involving male athletes switching categories in large numbers, allowing people to switch categories merely by saying they identify in that category does provide an opportunity for the unprincipled to exploit, just as allowing people to claim special treatment simply for asserting they have religious beliefs allows opportunities for the unprincipled. The moral and practical challenge is sorting out what tests should be used to protect against such unprincipled exploitation while avoiding discriminating against people. We do not make people prove that their religious beliefs are true before allowing them to gain the benefits of professing belief and we need to be consistent when it comes to professed gender identity. One approach, which is what we generally do for religion, is to take people at their word unless there is adequate evidence of an intent to deceive. For example, a male athlete who posted “LOL identifying as a girl just to win the 5K today, but fellas stay away I ain’t gay! After I win, I will be a boy again.” would be intending to deceive and should, one would infer, not be allowed to compete in the 5K as a female.  Likewise, if someone bringing a freedom of religion lawsuit so they can discriminate posted “LOL pretending to believe in God so I can hate on the gays!”, then they should probably not win that lawsuit. But in other cases, we should accept their profession as sincere. I do admit this does not settle the matter.

Upon taking office, Joe Biden signed an executive order requiring that schools receiving federal funding allow people who self-identify as females onto female sport’s teams. Pushback against it has ranged from thoughtful considerations of fairness to misogyny masquerading as morality. Exploiting the manufactured panic over transgender people, Trump signed an executive order banning transgender people from competing in women’s sports. While the narrative is that the anti-trans athlete folks are motivated by fairness, this is easily disproved by their lack of concern about fair treatment of women in sports in other areas, such as funding and facilities.

In addition to being complicated on its own, the fairness of transgender women competing with other women is linked to other complicated matters, such as general concerns about fairness in society and issues of gender identity. People arguing in good faith can make arguments in one area without realizing the implications of these arguments in other areas. To illustrate, consider the fictional character of Polly. Polly is a national level high school runner who holds to a principle of fairness. Polly’s brother, Paul, is faster than Polly but not a national level male runner. He jokingly suggests putting on a dress and beating Polly, which worries her. If a person could just self-identify as a female, Paul could do so and suddenly be a national level female high school runner. In a panic, Polly thinks up a nightmare scenario: the top male runners compete as boys, switch their gender identities, and win again as girls! Polly and her sister runners would be out of the competition, which would be unfair. In good faith, Polly can make a good moral argument against allowing this based on fairness. But her seemingly reasonable argument might justifying harming people in the broader context of fairness in society, something Polly would not want. As such, we should be careful to consider the implications of arguments about fairness in sports have in other areas.

People can also argue in bad faith, presenting an appealing fairness argument about sports while not caring about fairness. They might be using the sport argument as a Trojan horse to lure people into their ideological agenda or they might want to weaponize a seemingly reasonable argument. This is not to say that arguing in bad faith entails that a person must be making false claims or fallacious arguments. After all, one can use truth and good logic in bad faith. But we should be on guard against bad faith arguments. I will endeavor to follow my own advice and make good faith arguments while considering their implications.

From the standpoint of fairness, there are reasonable moral grounds to be concerned about allowing people to self-identify their category for competition. To focus the discussion, I will use my own sport of running and the specific context of road races—but the general points apply across all sports.

Road races have well-established categories that are based on a conception of fair competition. Almost all races have gender categories (male or female). Most races have age groups and some also include the master category (40+) and sometimes the grand master category (50+). A few races also add a weight category (Clydesdale or Athena). In addition to categories created for fairness, races sometimes have categories for other reasons. For example, the Bowlegs 5K in Tallahassee raises money for a college scholarship and has a special educator category. Since educators as a class have neither advantages nor disadvantages relative to other runners, this category is not based on fairness.

In most cases, these categories serve their intended purpose as they make competition fairer by sorting people into groups based on qualities that impact performance. In some cases, these categories can have the unintended effect of allowing a person in a generally advantaged category win in their category while losing to a runner in a disadvantaged category. For example, a 50-year-old runner might win nothing in his age group while also beating every runner in the younger age groups. He thus loses to inferior performances because of the age groups intended to allow older runners like him to fairly compete. While this can be annoying, these cases are rare, and the overall positive impact of age groups and gender divisions outweigh the negative aspects. This is a good general approach to setting policies. A good policy will never be perfect, but a good policy creates more overall good than bad. But there are people who do try to exploit categories to their advantage. I will turn to this in my next essay.

In response to a growing general acceptance of LGBT rights, some states have passed laws requiring a person to use the bathroom (and similar facilities) for the sex on their birth certificate.

Being a veteran runner, I am generally fine with people using whatever bathroom they wish to use, if they do not otherwise engage in immoral or criminal activity. Almost anyone who has run a major race probably has a similar view based on pure practicality. Also, like any mature adult, I go to the bathroom to do my business and if everyone else is minding their business, I could care less about who is in the next stall. Or urinal. Obviously, I do hold that assault, rape, harassment, stalking, and so on should not be allowed, but all these misdeeds are already covered by existing law.

Being a philosopher does require that I consider opposing arguments and that they are entitled to whatever merit they earn through the quality of the reasoning and the plausibility of the premises. As such, I will consider a few arguments in favor of bathroom bills.

One of the most compelling arguments is the one from harm. The gist of the argument is that allowing people to use facilities based on their gender identity will allow rapists, molesters, pedophiles and peepers easy access to women and girls, thus putting them in danger. The bathroom bills, it is claimed, will protect women and girls from this danger.

Since I also accept the principle of harm, I accept the basic reasoning conditionally: if the law did protect women and girls from harm (and did not inflict a greater harm), then it would be a sensible law. The main problem with the argument lies in the claim that the bills will protect women and girls from harm. Many states and localities have long prohibited discrimination in public facilities and there has not been an increase in sexual assault or rape. As such, the claim that the bills are needed to protect the public is untrue. The imposition of law should, as a matter of principle, be aimed at addressing significant harm.

This is not to deny that a person might pretend to be transgender to commit nefarious deeds in a bathroom. However, such a determined attacker could just attack elsewhere (it is not as if attacks can only occur in public facilities) or could just disguise himself as a woman (the law does not magically prevent that). There also = seems to be an unwarranted fear that bathrooms are ideal places for attacks, which does not seem true. That said, if it turns out that allowing people to use facilities based on their gender identity did lead to a significant harm, then the bathroom bills would need to be reconsidered.

A second argument that has been advanced is the privacy argument. The gist of it is that allowing people in facilities based on their gender identification would violate the privacy of other people. One common example of this is the concern expressed on the behalf of schoolgirls in locker rooms: the fear that a transgender classmate might be in the locker room with them.

While our culture does endeavor to condition people to be ashamed of their nakedness and to be terrified that someone of the opposite sex might see them naked, the matter of privacy needs to be discussed a bit here.

On the face of it, gender restricted locker rooms are not actually private. While I am not familiar with the locker room for girls and women, the men’s locker room in my high school had a group shower and an open area for lockers. So, every guy in the locker room could see every other guy while they were naked. Some boys found this lack of privacy too much and would put their normal clothes on over their gym clothes without showering. Or they would try to cover up as much as possible. As such, the concern about privacy is not about privacy in the general sense. In space, everyone can hear your scream. In the locker room, everyone can see your junk.

As such, the concern about privacy in locker rooms in regard to the bathroom bills must be about something other than privacy in the usual sense. The most reasonable and obvious interpretation is privacy from members of the opposite sex: that is, girls not being seen by boys and vice versa. This could, I suppose, be called “gender privacy.”

Those favoring transgender rights would point out that allowing people to use facilities based on gender identity would not result in boys seeing girls or vice versa. It would just be the usual girls seeing girls and boys seeing boys. Since the main worry is transgender girls in girls’ locker rooms, I will focus on that. However, the same discussion could be made for transgender boys.

The obvious reply to this would be to assert that gender identification is not a real thing: a person’s gender is set by biological sex. So, a transgender girl would, in fact, be a boy and hence should not be allowed in the girls’ locker room. This is presumably, based on the assumption that a transgender girl is still sexually attracted to girls because they are still a boy. There seem to be three possibilities here.

The first is that transgender girls really are boys and are sexually attracted to girls (that is, they are just faking) and this grounds the claim that a transgender girl would violate the privacy of biological girls. This entails that lesbian girls would also violate the privacy of biological girls and since about 10% of the population is gay, then any locker room with ten or more girls probably has some privacy violation occurring. As such, those concerned with privacy would presumably need to address this as well. The worry that a “hidden homosexual” might be violating privacy could be addressed by having private changing rooms and closed shower stalls. However, this would be costly and most public schools and facilities would not have the budget for this. As such, a more economical solution might be needed: no nakedness in locker rooms at all to ensure that privacy is not being violated. People could wear bathing suits while showering and then wear them under their clothes the rest of the day. Sure, it would be uncomfortable, but that is a small price to pay for privacy.

The second is that transgender girls are not sexually attracted to girls and hence do not violate their privacy: they are just girls like other girls. It could be objected that what matters is biology: a biological boy seeing a biological girl in the locker room violates her privacy. Arguing for this requires showing how biology matters in terms of privacy. That being seen non-sexually by biological girls is no privacy violation but being seen non-sexually by a biological boy who is just going about their business is a privacy violation. That is, if the person looking does not care about what is being seen, then how is it a privacy violation? The answer would need to differentiate based on biology, which could perhaps be done.

The third is that transgender girls are just girls. In which case, there is no privacy violation since it is just girls seeing girls.

While the harm and privacy arguments do have some appeal, they do not seem to stand up well under scrutiny. However, there might be other arguments for the bathroom bills worth considering, although I have yet to see one.

For years, the right passed anti-choice laws in the hope they would end up in the Supreme Court and lead to the overturning of Roe v Wade. They finally succeeded and anti-abortion groups claimed a major victory over the will of the people.  

While purporting to be motivated by pro-life (or at least anti-death) principles, these laws and bills are fundamentally misogynistic. They have three fundamental functions. The first is to appease a key portion of the base.

Second, couched in pro-life language, these laws provide excellent dog whistles for misogynists. The male misogynists generally understand that the message being sent to them is: “Your baby in her body. Her body in your kitchen. Making you a sandwich to put in your body.” More generally, the laws say to the misogynists in the base “we are misogynists like you, and we will put women in their proper place.”  Naturally, to make these claims is to seem crazy in the eyes of the “normies.”

Third, the laws  codify misogyny by harming women. To be fair, I can add a fourth reason that brings in the Democrats: the abortion debate was something of a battlefield of deceit in which the Republicans falsely claim to be pro-life (or at least anti-death) and the mainstream Democrats agreed to fight the battle on this assumption. The Democrats rhetoric is that they are pro-choice and the mainstream never seems inclined to get into a substantial and complex fight over the core ethical and political issues. That is, of course, broadly true across   mainstream politics: politicians mouthing their fighting words while keeping the status quo stable and themselves in power. But it could be objected that I am mischaracterizing things.

One objection is that while some misogynists might support these laws, proponents of anti-abortion laws, such as Alabama governor Kay Ivey, claim their  motivation is to protect life. As the governor said, “to the bill’s many supporters, this legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.” But this is a bad faith claim.

Given the professed view that Alabamans regard life as a precious, sacred gift, one should be shocked to learn that Alabama is terrible in terms of maternal and infant health. Alabama is tied for 4^th worst in the United States, with 7.4 deaths per 1,000 live births. While it might be argued that this is due to factors beyond their control, there is a consistent correlation between strong anti-abortion laws and poor maternal and infant health. While correlation is not causation, the reason for this correlation is clear: the state governments that enact the strictest anti-abortion laws also show, via public policies, the least concern for maternal and infant health. Texas, as should surprise no one, also has a high maternal mortality rate. While not nearly as bad as Texas and Alabama, Florida also has a high maternal (and infant) mortality rate. 

This is inconsistent with the professed principle that life is a precious, sacred gift. It is also inconsistent with the professed motivation for anti-abortion laws: to protect the life of children. It is, however, consistent with the hypothesis that anti-abortion laws are largely motivated by misogynistic principles. After all, if legislators pass anti-abortion laws because of hostility towards women’s reproductive freedom and wellbeing, then one would also expect them to neglect maternal and infant health in their other policies. On the face of it, this is the better explanation.

Another objection is that the laws are aimed at reducing the number of abortions and this is not misogynistic. Again, it just so happens that it impacts women. The easy and obvious reply is that the most effective way to reduce abortions is to reduce the need for them. Improved sex education and easy and free access to birth control reduces unwanted pregnancies. One might assert that anti-abortion folks also tend to oppose sex ed and birth control; but these are also usually misogynistic positions as well. Defending misogyny with more misogyny is hardly a good defense against an accusation of misogyny.

For those who oppose sex-ed and birth control without being misogynists, one can argue for using social programs to provide women and girls with adequate resources to complete a pregnancy and raise the child. But, as is well known, the anti-abortion folks tend to be savage opponents of programs that help mothers and children. If they were so devoted to life that they think the state should use its coercive power to take control over  women, then they should be on board with providing basic state support to enable more women to choose to complete their pregnancy. But the easy and obvious explanation is that the pro-life claims are bad faith assertions; they are not pro-life but are misogynists.

A final objection is to point to women who support anti-abortion laws. Surely, one might say, women would not support misogynist laws. And, of course, men involved with the laws can point out that they have a mother and some of their best friends are women. So how can they be misogynists?

In some cases, women support such laws from ignorance. That is, they accept the bad faith reasons and think that they are supporting the protection of life, not realizing the misogynist consequences of the laws. Interestingly, women on the right are sometimes shocked that the right is misogynistic. They apparently fail to grasp that racism and sexism are the peanut butter and chocolate of the right. In other cases, they might be aware that the laws are advanced in bad faith but agree with the stated goal of restricting abortion. So, they go along with the misogyny because it gets them something they want.

 A third possibility is that a woman is herself a misogynist—while this might sound odd, it can happen. Finally, a woman might be an opportunist rather than ignorant or a misogynist—she has calculated that she will gain more as an individual by backing misogyny than she will lose as a woman. So, for example, a female judge or politician might recognize that the right is fundamentally misogynistic but decide that she gains a personal advantage by joining them. Just as the folks on the right desire a few minorities to provide them with a “black friend” as a shield against accusations of racism, they also want a few women to provide them with a shield against accusations of sexism.

Somewhat ironically, the powerful women on the right represent something radical that undermines the right: they hold these positions of power because of the past battles fought by the left.  Also, capable women in power give lie to the misogyny of the right (and left).  Not so long ago, the right (and left) was openly misogynistic; but this has changed and there is a strong reaction to this shift. It is, of course, ironic that the women who occupy their positions of power due to the fight against misogyny are fighting so hard to roll back the clock for women in general. Perhaps they think that they will retire before the clock is rolled back. Perhaps they are unaware of the consequences of what they are fighting for. Or perhaps they sincerely believe that they should not have been allowed to be where they chose to be and that future women should not be allowed this choice. Or perhaps they know that they will remain the exception to the oppression they wish to impose on other women.

It might be wondered why anyone would bother making the arguments I have made. After all, the right and their supporters are either already aware of the misogynistic purpose of the laws or will not believe me. But there seems to be some value in attempting to reveal that the right’s arguments are in bad faith. There is a slight chance that some people might change their minds about supporting such bad faith laws.

It also seems desirable to try to reveal the bad faith on the right. For example, when they engage in their bad faith arguments and rhetoric about protecting life, that would be the ideal time to call them out on their lack of support (and opposition) to laws that do protect children. These include regulating pollutants that kill children, providing stronger social support for children, ensuring clean water and adequate food for children, providing quality education for children, ensuring quality health care for children, and so on for so many things the “pro-life” right fights. Whenever a right-wing politician proposes a “pro-life” bill, the left should immediately try to add real pro-life components, such as funding for maternal care and the health of children. When a “pro-life” governor is professing their love of life, they should be asked about the infant and maternal mortality rates in their state. And so on.