TRANSGENDER INCLUSION AND GIRLS’ SPORTS A Look at What’s at Stake
2023; Volume: 3; Linguagem: Inglês
10.1162/ajle_a_00051
ISSN2694-5711
Autores Tópico(s)Doping in Sports
ResumoSports are social conventions through and through. There is nothing natural or predetermined about who gets to play and what one must do to win. But how sports are structured says a lot about what society values and whose interests it sees as top priorities. Hence the culture war over girls’ sports. This paper seeks to identify what society values about organized sports and suggest how a society that strives to prioritize girls as highly as boys and transgender girls as highly as cisgender girls should allocate athletic opportunities.1To date, the loudest voices in the fight over girls’ sports have been the most extreme. On one side are those who argue that transgender girls are girls and must always be treated as such.2 On the other side are those who argue that sex is determined at birth and can never be changed.3 The arguments are absolutist both in the sense that they call for categorical inclusion (or exclusion) of transgender girls in girls’ sports and in the sense that they hold across different contexts outside of sports.This is a mistake. The analysis of transgender girls’ participation in girls’ sports must be qualified and contextual. Transgender inclusion in sports is different from transgender inclusion in prisons. Transgender inclusion on Little League teams is different from transgender inclusion in elite sports. Moreover, inclusion in a world in which transgender girls physically dominate cisgender girls is different from inclusion in a world in which transgender and cisgender girls are more evenly matched.This paper’s focus is on sports and on what is at stake for participants and society more generally when society allocates athletic opportunities to transgender and cisgender girls. It identifies the benefits that organized sports provide to participants and nonparticipants. It then offers a normative argument for how these benefits should be allocated and explores what these normative goals mean for the structure of girls’ sports and the participation rights of transgender athletes. The paper considers not only whether transgender girls should be included in girls’ sports—and if so under what conditions—but also whether girls’ sports, as a distinct category, should continue at all.Part I identifies the three core benefits of organized sports: (1) basic benefits, (2) special benefits, and (3) group benefits. The basic benefits of sports are the physical and psychological advantages received by all those who participate. The special benefits of sports are the prizes, recognition, and rewards received by only the athletic winners. The group benefits of sports are the benefits that nonparticipants receive from sports. These benefits include both the pleasure fans get from seeing something difficult done well and, more significantly, the enhancement to self and social esteem that members of a socially salient group gain from having one of their own succeed. Parts II–IV consider how a society that cares equally about transgender and cisgender girls, and seeks to provide equivalent benefits to both, should structure athletic opportunities.Part II focuses on the basic benefits of sports. It argues that all individuals are equally entitled to the basic benefits of sport: the physical and psychological benefits that flow from participating rather than winning. Moreover, this part contends that if society cared about sports only because of the basic benefits they provide to participants, there would be no reason to distinguish between cisgender and transgender girls and little reason to distinguish between the sexes in sports at all.Part III focuses on the special benefits of sports: the prizes, recognition, and scholarships that make sports so valuable for a lucky few and which are—more than the basic benefits—the focus of fighting over athletic resources. Unlike the basic benefits, the special benefits must be distributed based on merit to retain their meaning and value. The hard question is how to determine who should compete against whom and how to define the categories from which winners are drawn. This part contends that while society might be able to shift to unisex competition categories as the basis for allocating special benefits, to the extent that sex-segregated categories remain in place, they must be enforced fairly. The part then turns to the question at the heart of the fight over transgender access to women’s teams: what does fair enforcement of the “female” sports category require? It argues that the female sports category is both an ability category and a status category and, as such, its confines cannot be determined without considering the group benefits that flow to transgender and cisgender girls.Part IV focuses on the group benefits of sports. It begins from the premise that transgender and cisgender girls are equally entitled to the group benefits of sports and considers what participation rules best further this goal. First, the paper considers eligibility rules that divide the female athletic category into cisgender and transgender divisions. It concludes that for transgender girls, such a separate-but-equal approach is not equal. Next, the paper considers eligibility rules that unite transgender and cisgender girls and explores the effects of inclusivity under three possible empirical realities: (1) transgender girls are no better on average or at the extreme than cisgender girls, (2) transgender girls are better on average than cisgender girls but not better at the extreme, and (3) transgender girls are better at the extreme and disproportionately win athletic prizes and scarce resources. The paper argues that only under the last condition does transgender girls’ inclusion in girls’ sports reap group benefits for transgender girls at the expense of comparable group benefits for cisgender girls and only then are restrictions on transgender girls’ participation warranted.Structuring athletics in a way that optimizes benefits for both transgender and cisgender girls requires understanding what society values about organized sports. Yet, even with such understanding, translating social values into organizational structures is complicated because different values call for different rules. The paper concludes by identifying which values dominate in which athletic contexts and suggesting context-specific eligibility rules that treat trans and cis girls with equal concern and respect.The fight over access to athletic opportunities and resources is heated because much is at stake for participants and for the social groups with which they identify. This part describes the benefits that flow from participation in organized athletic competition. First, there are internal and individualistic health benefits that all participants receive simply from playing. I refer to these as basic benefits.4 Second, there are external and individualistic benefits that a lucky few winners receive in the form of prizes, awards, recognition, and scholarships. I refer to these as special benefits.5 Third, there are benefits to nonparticipants because of their group membership. They include benefits that flow to those who identify as fans. More importantly, they also include benefits that flow to those who socially identify with the winners. I refer to these collectively as group benefits. In the remaining parts, I consider how these benefits should be allocated and what the implications are for the structure of girls’ sports.Organized sports are widely associated with a range of physical and psychological benefits for participants.6 These basic benefits flow, or are believed to flow, to all participants simply from playing. Skill level and competitive success are irrelevant.Most direct are the benefits to participants’ physical health. Moderate exercise has been shown, for example, to improve bone density and to lower the risks of heart disease, diabetes, and some cancers.7 Physical activity is also associated with improved mental health, specifically, lower levels of depression and higher levels of creativity.8 The health benefits of physical activity are so clear and extensive that some scholars have argued that women’s athletic participation should be treated as a public health issue.9Somewhat more tenuous are the benefits to participants’ character. Participation in organized sports is widely thought to develop character by teaching skills such as teamwork, leadership, and discipline.10 The evidence for such benefits is more anecdotal and less rigorous than for the physical benefits. Nonetheless, they are widely ascribed to and are often cited as a reason to encourage children’s participation in organized sports. Indeed, the International Charter of Physical Education and Sports adopted in 1978 by the United Nations Educational, Scientific and Cultural Organization (UNESCO) proclaimed that “[e]very human being has a fundamental right of access to physical education and sport” because such activity is “essential for the full development of [their] personality.”11More tenuous still are the benefits to participants’ life choices. Although any causal link is unproven, much has been made of the correlation between athletic participation and better lifestyle choices and outcomes for children. Students participating in high school sports have higher grades, better attendance, and higher graduation rates than their nonathlete peers.12 They are also more likely to attend and graduate from college.13 Teenage student-athletes are less likely to smoke cigarettes,14 and teenage girls who participate in sports are less likely to engage in sexual activity or become pregnant.15Organized sports also provide some participants—those who win—with a distinct set of particularly valuable external benefits. Winners enjoy the excitement, pride, and joy of victory. Sometimes, they also enjoy more concrete and tangible benefits. They may set records, win prizes, qualify for more prestigious teams or leagues, and garner attention and acclaim for their accomplishments.For high school athletes, preferential treatment by colleges is a particularly valuable and sought-after special benefit for winners. The recent lawsuit against Harvard University alleging discrimination against Asian Americans revealed the magnitude of the preference.16 According to the plaintiffs’ analysis of Harvard’s admissions data, athletes who were ranked 4 on a scale of 1 to 6 had a 70% chance of acceptance, while nonathletes with the same score had a .076% chance of admission.17 This preference is consistent with that found almost twenty years earlier by James Shulman and William Bowen. In their book The Game of Life, Shulman and Bowen looked at admissions data for thirty selective colleges and found that athletes were give a 48% boost in admissions—a boost that was considerably higher than that for legacies (25%) and for racial minorities (18%).18Moreover, the very best athletes receive not only admissions help but also financial rewards. Approximately 180,000 students annually, the top 1%–3% of high school athletes, receive over $3.6 billion in scholarship support from NCAA schools,19 with an average scholarship amount of $18,000.20 The best of this group, approximately 2% of college athletes, receive opportunities to play professionally.Even for those who do not play, organized sports confer benefits. Most general are the benefits—excitement and fun—that fans get from watching their favorite athletes and teams play and win. More discrete, and more significant from a social justice perspective, are the benefits that accrue to members of socially salient groups as a result of seeing members of their own group celebrated and rewarded. As Mark Kelman explained, nonparticipants who identify socially with athletic winners receive benefits from increased self-esteem, from role modeling, and from the reduction of cultural subordination.21Self-esteem is mediated both by one’s own treatment as an individual and by the treatment received by members of one’s group.22 One’s self-esteem may be enhanced by seeing members of one’s group perform well and be treated with respect and adulation, as occurs when members of one’s own group are athletic stars.23 Conversely, self-esteem may be undermined by seeing members of one’s group devalued and disrespected.24 Moreover, associational self-esteem may be particularly important for members of subordinated groups.25Role models encourage healthy behaviors and life choices by those who identify with them.26 Individuals are more likely to “model themselves after members of their own groups than outsiders.”27 As a result, athletic nonparticipants benefit from having in-group role models who encourage athletic participation and healthy habits. As Kelman explained, female athlete role models not only encourage younger girls to participate in sports—and reap the accompanying health benefits—but also model and encourage a broader range of positive behavior—goal focus, intensity, competitiveness—that is advantageous for girls across contexts.28 While the benefits to self-esteem probably require some parity in how female and male stars are treated, the benefits from role modeling seem to require only the existence of a critical mass of group-identified winners.”29Finally, the celebration of athletic stars enhances the status and esteem accorded to all members of their socially salient group and can change the social meaning and status of group membership. The celebration of female athletes, for example, reinforces a vision of women as autonomous agents that is at odds with more traditionally sexist conceptions of women as passive sexualized objects for a heterosexual male gaze.30 Celebrating female athletes’ strength and agency chips away at cultural sexism for all women and enhances women’s social regard and status.Sports provide individuals and groups with important benefits. Much is at stake, therefore, in the distribution of athletic opportunities. The next three parts consider how the basic, special, and group benefits of sport should be allocated—to whom, on what terms, and for what social ends—and consider what these normative goals mean for the structure of girls’ sports.For participants, the basic benefits of sports are neither scarce nor rival.31 All athletic participants receive the health and character benefits that flow from organized sports, and one person’s receipt of them does not deprive another of the same benefits. Nonetheless, because the basic benefits of sports flow from participation opportunities that are often limited, the basic benefits of sports become in effect both scarce and rival. In this part, I consider how a society concerned about the basic benefits of sports should, under conditions of resource scarcity, structure and allocate athletic opportunities for transgender and cisgender girls.One way to distribute scarce benefits is based on merit, where merit is defined by some relevant measure of ability or effort. Jobs, for example, are awarded based on qualifications and performance. Sometimes benefits are distributed in this way to achieve some independent external end. Imagine scarce spots in cardiac surgery residency programs or scarce government contracts to mechanical engineers to rebuild the nation’s bridges. In both cases, there are external reasons related to public health and safety that justify allocating the scarce resources based on merit as measured by relevant performance. Other times, resources are distributed based on merit to encourage particular kinds of behavior. Consider a teacher trying to motivate her students to read. Allocating prizes based on numbers of books read—in other words, based on merit as measured by effort—would serve her goals well.A merit-based distribution of sports’ basic benefits—where merit is measured by athletic ability or performance—is difficult to justify on either ground. The basic benefits of sports are akin to core health and education resources. Distributing such health benefits to those who are most athletic—and likely healthiest—seems unlikely to further any important social goal. Instead, doing so would likely weaken society overall by degrading the status of the weakest and increasing the gap between the privileged and the poor. While awarding the basic benefits to those who are physically strongest probably would incentivize health-conscious behavior among some individuals, it would also punish and deprive those who are the weakest and most infirm. Awarding opportunities for health and well-being to those who already possess both, and denying opportunities to those who lack them, seems at best nonsensical and at worst unjust. As Jane English observed, “[i]f Matilda is less adept at, say, wrestling than Walter is, this is no reason to deny Matilda an equal chance to wrestle for health, self-respect, and fun.”32There is perhaps more normative appeal in allocating the opportunity for basic benefits based on need. Under this view, those who need such benefits to reach basic levels of health and functioning are most entitled to them. Martha Nussbaum and Amartya Sen are perhaps most strongly associated with this view. They have argued that a just society must distribute resources so as to guarantee that all individuals have the basic capabilities necessary for a good human life—chief among which are health and thought33 “as cultivated by an adequate education.”34 Norman Daniels similarly has argued that health care must be distributed so as to give everyone the ability for “normal species functioning,”35 with more resources going to those who need more to maintain or achieve normal functioning.36As a practical matter, need does sometimes drive resource allocation decisions in education and health care. While state constitutions require that all children be given a basic minimum education, the federal Individuals with Disabilities Education Act (IDEA) requires that resources be allocated based on need.37 The goal of the IDEA is to provide students with handicaps with “a free appropriate public education” in the “least restrictive environment.”38 What this means in practice is that schools must devote extra resources to handicapped children to permit them to achieve the same basic educational goals that most nonhandicapped students can achieve with far fewer resources.39 Disabled students who need more resources to achieve proficiency are given more resources—they are given preferential treatment as compared to other students who would benefit from the resources but “need” them less.In health care, too, under both private and state-sponsored insurance plans, more resources and benefits go to those who need them to achieve basic levels of health and functioning. Indeed, rather than capping all individuals at the same level or expense of care, insurance programs direct far more resources to those whose impairments—from hearing loss to mobility problems to the need for dialysis—require more interventions to achieve basic levels of functioning.40Transgender advocates, at times, seem to support a need-based distribution of athletic opportunities. Transgender girls, they emphasize, are an “‘especially vulnerable population’”41 with a particularly strong need for the basic benefits that sports confer.42 Such need, they suggest, creates a privileged entitlement to athletic resources.While perhaps conceptually appealing, a need-based allocation of athletic opportunities is infeasible. First, it is not clear how to measure need or what type of need should count. Is need to be measured against a baseline of physical health, against a stable level of emotional well-being, or against particular performative athletic skills? Second, need assessments—whatever metric is chosen—must be individualized. Even if some types of group membership may be associated with particular vulnerabilities, it does not follow that all members of a group are more vulnerable or needy than non-group members. Individuals have varied group memberships, some associated with privilege and others with disadvantage. Membership in a particular group, such as being transgender, is not a good proxy for overall need. It is too simplistic to say that a transgender boy, by virtue of his gender identity, is more in need of the physical and mental health benefits of sport than a cisgender girl who is overweight or a cisgender boy suffering from depression. Yet individualized need assessments of all students seeking to participate in recreational school sports are not possible. Assessing and scaling the relative need of all students who might want to participate would be too costly and difficult.Since a merit-based distribution is unappealing and a need-based distribution impractical, a third option is to give all students equal access to the basic benefits. Such a distribution is consistent with and bolstered by the widely shared view that all individuals have an equal moral entitlement to basic health care and education.The idea that “everyone has a right to a minimum of ‘decent,’ ‘reasonable,’ ‘basic,’ ‘essential,’ or ‘adequate’ health care … commands widespread (though not universal) consensus,”43 explained law professor Einer Elhauge. Philosophers largely agree. In their book, Social Justice: The Moral Foundations of Public Health and Health Policy, Madison Powers and Ruth Faden argued that social justice requires that all individuals be provided with a sufficient level of health and a reasonable life span.44 According to John Rawls, a basic minimum of health care for all individuals is necessary for a stable democracy.45A commitment to equal basic health care infuses public policy as well as political philosophy. As Erin Brown explained, a commitment to a basic minimum undergirds the patchwork of federal statutes that provide healthcare benefits for groups that might not be covered by employer-sponsored insurance, such as “Medicare, Medicaid, the Veterans Administration health system, TRICARE for active duty military and their families, the Emergency Medical Treatment and Active Labor Act (EMTALA), and, most recently, the ACA [Affordable Care Act].”46 Indeed, Representative John Lewis, urging his colleagues to vote for the ACA, appealed to their sense of justice: “We have a mission. We have a mandate. We have a moral obligation to lead this nation into a new era where health care is a right and not a privilege.”47A similar commitment to a basic minimum exists in the context of education. Theorists contend that a basic education is foundational to good citizenship. As Debra Satz explained, “[e]ducation has long been recognized as a ‘foundation of good citizenship,’ a necessary condition for full membership in the political community.”48 Schools teach “future citizens to evaluate different political perspectives that are often associated with different ways of life.”49 Such civic education is critical, Amy Gutmann agrees, and “[t]he social stakes for liberal democracy … are high. Absent mutual respect, citizens cannot be expected to honor the liberal principle of nondiscrimination.”50Access to a basic minimum education is in fact an individual right. Every state constitution includes an education clause obligating states “to establish and operate public schools that provide children with a basic minimum or adequate education.”51 Though the right to a basic minimum is not always realized, it is recognized.While not going so far as to require that all students receive athletic opportunities, an equal-access approach recognizes and protects students’ equal moral entitlement under conditions of scarcity to the basic benefits of sport. One way to ensure equal access to athletic opportunities would be to make sports unisex and to reconfigure them so that sports require and reward more equally the abilities of both girls and boys.52 As Jane English has argued, “[w]e should develop a variety of sports, in which a variety of physical types can expect to excel.”53 Scholars focused on transgender athletes have made similar arguments. Irena Martínková, for example, has called for a shift to unisex sports that have been redefined to be “inclusive for athletes of all sexes.”54In the real world, creating sports that equally recognize and reward the aptitudes of women and men is likely to be challenging. The very small number of sports that currently fall into this category—perhaps dressage, riflery, long-distance swimming, and car racing—hints at the difficulty of this endeavor. Encouraging people to adopt these newly configured sports is also likely to be challenging. Certainly, new sports do arise and gain popularity,55 but there is also a lot of stickiness in people’s athletic preferences. Indeed, the ten most popular sports in the world have been the same for the last ninety years.56 Certainly, the process of modifying or creating new sports and shifting athletic preferences, if possible at all, would take time.A more practical, though certainly less perfect, way to ensure equal access to athletic opportunities would be to shift existing sports to a unisex model and have spots allocated by lottery rather than performance. Existing sports tend to favor and reward male attributes and abilities, and this may explain in part why men are more drawn to sports than women. Nonetheless, if schools were to create robust and diverse unisex athletic offerings that were open to all without regard to performance, girls and boys—both transgender and cisgender—would have access to the basic benefits of sports that while perhaps not perfectly equal was functionally and practically so.It may be, though, that participants prefer sex-segregated teams—at least at times—even when participation is not performance based. Boys may prefer playing with boys and worry that girls will change the nature of their game. Girls may prefer playing with girls and worry that boys will marginalize or condescend to them. Girls may also feel that rules designed to protect them or the fairness of play in coed competitions are patronizing.57Conceding to this reality, however, makes ensuring that participants have equal access to the basic benefits of sports more challenging. English has argued that under conditions of sex segregation, equal funding is key to equal access for girls.58 “Rights to the basic benefits dictate immediate changes in the distribution of our sports resources,” English explained, requiring “equal facilities—everything from socks to stadiums” and “equal incentives.”59 Girls’ and boys’ teams must, in other words, be the same in terms of the numbers of opportunities they provide students and the nature of these opportunities.Most important when it comes to transgender students is category assignment. For transgender girls, equal access to the basic benefits of sports requires their access to and inclusion on girls’ sports teams. Requiring transgender girls to compete on boys’ teams would stigmatize them by labeling them as boys. It would also undermine the emotional health benefits of sport and likely discourage play.60 Requiring transgender girls to play in their own category would likely have similar effects. While segregation of cisgender girls and cisgender boys in sports is generally not viewed as stigmatic to girls, segregation of cisgender and transgender girls is, often, viewed as stigmatic to transgender girls.61 For transgender girls relegated to a “separate-but-equal” trans category, the basic benefits of sports would be undermined and diminished by the message that they are not in fact “real” girls.For cisgender girls, transgender inclusion might affect their access to the special benefits of sport, but it should have no meaningful effect on their access to the basic benefits. Opposition to transgender girls’ inclusion in girls’ sports centers on the claim that if transgender girls compete directly against cisgender girls, the latter will lose. When it comes to the basic benefits, however, winning does not matter and prizes are not the point. The basic benefits come from playing and flow as readily from recreational sports as from elite-level sports. Including transgender girls on girls’ sex-segregated recreational teams—where opportunities to play are equally available to all regardless of sex or ability, and where girls’ and boys’ teams are equally funded—would not deprive cisgender girls of equal access to the basic benefits of sports.62If society cared about organized sports only because of the basic benefits participants derive from them, there would be no reason to deny transgender girls access to girls’ sports, and the issue of transgender girls’ inclusion would probably not be terribly fraught.63 Transgender girls would need access to girls’ sports teams to have equal access to the psychological benefits of sports. Meanwhile, cisgender girls would lose little, if anything, by having girls’ sporting opportunities randomly distributed among a pool of potential participants that included both transgender and cisgender girls.What is at stake with athletic opportunities is not, however, only the basic benefits of sports. Indeed, the fight over transgender girls’ inclusion in sports is not primarily about access to the basic benefits; it is instead about who gets the special benefits of sports—the prizes, recognition, and rewards that go to only a few. When it comes to these benefits, distributions based on principles of equality or need hold little appeal. Only allocations based on merit—where merit is determined by performance—allow the special benefits to retain their meaning and symbolic value. On this, both sides of the culture war seem to agree.64 What is less clear is who should compete against whom.This part considers three distinct eligibility categories within which merit-based allocations of special benefits could be made: unisex open categories, unisex ability categories, and sex-based categories. It argues that while a
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