photograph of staggered starting blocks for track competition
"Starting block in track" by redstone (via depositphotos)

On February 12th, three families sued to make women’s sport in Connecticut exclude trans athletes from participating. But this is just one event in a trend of anti-LGBTQ legislation and litigation in 2020, including bills in South Dakota, Florida, and Colorado that would make it a felony for medical professionals to provide healthcare to trans minors, despite the American Academy of Pediatrics’ statement in 2018 advocating for a “gender-affirming approach” to care for minors.

These teens in Connecticut are not alone in pursuing action for trans exclusion in sport: Alabama, Georgia, Indiana, Missouri, New Hampshire, Tennessee, and Washington all have Republican-sponsored bills under consideration “prohibiting transgender student athletes from participating in gender-segregated sports in a way that’s consistent with their gender identity.”

Attorney Christiana Holcomb (using transphobic language that erases the fact that trans girls *are* girls) made the claim: “Forcing girls to be spectators in their own sports is completely at odds with Title IX, a federal law designed to create equal opportunities for women in education and athletics.” Note that if the plaintiffs have their way, girls who aren’t cis aren’t simply being forced “to be spectators in their own sports,” but rather are being excluded completely from competition.

Identifying gender with an underlying biological feature is actually pretty difficult from a biological perspective. In 2018, the Trump administration attempted to define gender biologically and received a great deal of criticism from medical and gender specialists alike. “The idea that a person’s sex is determined by their anatomy at birth is not true, and we’ve known that it’s not true for decades,” said executive director of the Center for Transgender Medicine and Surgery at Mount Sinai Health System in New York, Dr. Joshua D. Safer. Chromosomes, hormones, or external anatomical features like genitals are insufficient indicators to categorize the population into two rigid gender binaries. Further, two percent of the population have differences of sexual development (sometimes self-identifying as “intersex”) – this is roughly the same portion of the population that has red hair.

So why are athletes clinging to identities given to them based on apparent anatomy at birth?

One of the teen athlete plaintiffs, articulated their position: “That biological unfairness doesn’t go away because of what someone believes about gender identity. All girls deserve the chance to compete on a level playing field.” The “biological unfairness” alluded to here is the supposed competitive advantage that trans women have over cis women. The statements made by the teens make many appeals to fairness in sport and making sure everyone gets “their chance.”

“Fairness” may be a common value that we appeal to pretty frequently, but it doesn’t describe a stable state of affairs: it means different things in different contexts. Being fair to employees may mean giving the same salary to those who do the same amount of work, or it could mean giving more money to those who have been employed for longer at the company. Being fair to individuals in a classroom may mean not making discriminations (say, in awarding grades) on the basis of health and likely lifespans, whereas in the context of determining organ transplant recipients, health and likely lifespans may be a morally permissible standard for discrimination.

In competitive sport, “fairness” is a complicated standard. Competitors are understood to be looking for and developing advantages over their opponents. If an athlete perceives a weakness in an opponent, taking advantage of it is often the appropriate response. Outside of competitive sport, taking advantage of a weakness can be a textbook case of exploitation.

Basically, in sport, having a competitive advantage is not the same thing as having an unfair advantage. From there, the fairness issue gets complicated further because there is empirical evidence that trans women do not achieve a “significant” competitive advantage after transitioning. The advantage that is found can be estimated “from 2-3%.”

Competitive sport is competitive in the sense that training and in-sport strategy is largely concerned with garnering advantages for one’s own side and diminishing advantages for one’s opponent. Living and presenting as one’s gender is not the same thing as seeking these advantages any more than having a disposition for a particular height may give an advantage for some sports. However, the claim made by some who are attempting to exclude trans women is that any advantage they may have over cis women in virtue of being trans is an unfair one – is different than the advantage gained by happening to be a particular height. It is important to acknowledge that different sports privilege different physical presentations. In basketball, for instance, being tall represents a considerable advantage – more than 2-3% – while in gymnastics it represents a disadvantage.

The range of differences in gender performance in competitive sport is also significant: in the Iditarod, women frequently win overall, and in many endurance sports the gender gap is quite small, but in competitive weightlifting the gap reaches nearly 37%. These gaps receive a great deal of interpretation; during the 20th century, women’s sport achievement improved at a remarkably fast rate and the previously wider gap decreased. The increased access to resources, training, and competitions fostered women in sport. It is difficult to predict, given advances in sports science, training, and hopefully further progress in gender inclusion, how the performance gap will behave in the future.

A systematic review of the literature pertaining to sport policies in transgender people in 2017 concluded: “there is no direct or consistent research suggesting transgender female individuals (or male individuals) have an athletic advantage at any stage of their transition (e.g. cross-sex hormones, gender-confirming surgery) and, therefore, competitive sport policies that place restrictions on transgender people need to be considered and potentially revised.”

If we grant the 3% advantage, and determine this to be an “unfair” advantage, this does not necessarily lead to one clear call to action. For instance, in 2018, ethicists considering the advantage that trans women may hold in competitions concluded not that this should lead to exclusion from sport, but rather a more critical attitude towards male/female categories in sport in the first place. In 2019, ethicists suggested traits that are relevant to particular sports’ skill be the determining factor to segregate classes. For instance, we could consider dividing basketball into height classes, which would allow for shorter, skilled players to compete. This could mirror weight classes in boxing and martial arts competitions, for instance.

While the underlying value that the plaintiffs are appealing to is “fairness,” their aim is to exclude their fellow athletes from competing. A more critical analysis of why the aim of a fair competition and success in sport is required for these athletes to move forward. Perhaps they should consider why the the American Civil Liberties Union is on the other side of their case: though the plaintiffs are appealing to Title IX’s gender protections, the ACLU has said it will represent the transgender teens: “Attorney Chase Strangio, deputy director for Trans Justice with the ACLU LGBT & HIV Project, said transgender girls also are protected by Title IX.” Women get to play sports.

Meredith is an Assistant Professor at the University of Wisconsin, Whitewater. She earned her PhD at the University of California, Riverside, with a research focus in Philosophy of Action and Practical Reasoning and continues to explore the relationship between reason and value. Her current research consists of investigating modes of agential endorsement: how an agent's understanding of what is good, what is reasonable, what she desires, and who she is, informs what she does. Meredith is also committed to public philosophy and applied ethics; in particular, she is invested in illuminating debates in biomedical ethics, ethics of technology, and philosophy of law. Her website can be found at: https://mermcfadden.wixsite.com/philosopher.