New book fuels the debate over the place of transwomen athletes in competitive sports

Miroslav Imbrišević
Open University (UK)

The book consists of 11 chapters which are grouped into three parts: I. Trans Inclusion; II. Trans Rights; III. Media Complicity in Trans Exclusion. I will discuss the chapters in parts I and II in detail. Part III might be of interest to students of media, but the papers are not directly relevant for policy decisions about trans inclusion.

When opening the contents page of this book the reader gets a surprise. The editors’ introduction to the book functions as Chapter 1 (including an abstract), giving the impression that the introduction is an original contribution to the debate. There, Ali Greey and Helen Lenskyj clearly set out their stall (4): ‘Those opponents of trans rights who identify as feminist and/or lesbian appear to take a “zero-sum” approach to equity and social justice: that is, they falsely believe that rights for trans girls and women automatically results in diminished rights for cis girls and women.’ The editors take it as a given that acquiescing to the demands of trans athletes is a matter of equity and social justice. However, when it comes to sport they ignore that the law in some legislations constricts the rights of trans women athletes. In both the UK and Australia they can be excluded from competitive sports for reasons of fairness and safety.

It is a familiar trope that so-called trans rights take nothing away from women, and in particular from female athletes. The editors push the narrative that there cannot be a clash of rights between women and trans women – because the latter are, of course, ‘women’. This move, a piece of sophistry, has been given a name by the eminent English legal scholar H.L.A. Hart (1959:5): it is a ‘definitional stop’. One way to deal with a problem is to define it out of existence.

The editors (and most contributors) brand critics as ‘opponents of trans rights’, and these opponents lack (4) ‘rational compassion for those who struggle with gender identities.’ Thus, the critics can be dismissed because of their failures as human beings and, consequently, there is no need to engage with their arguments. Greey and Lenskyj mention radical feminists in the UK and former Olympic athletes, whose critical views about inclusion they describe as (5) ‘transphobic’. This suggests to the reader that the book will not engage with counter arguments in a fair way, but will only try to bolster one side in the debate. And by the end of the book these worries are fully confirmed.

But even if we didn’t have these studies, common sense and centuries of experience tell us that anyone who went through male puberty physically outperforms girls/women.

There are several distortions of the relevant science in the introduction. Greey and Lenskyj claim that (6) sex is a continuum, not a binary and refer to an article in the Scientific American by Claire Ainsworth, first published in 2015. Ainsworth’s essay has been consistently misinterpreted by trans activists. When questioned in 2017, ‘are you making the claim that there are more than two sexes?’, she replied: ‘No, not at all. Two sexes with a continuum of variation in anatomy/physiology.’ The editors fail to distinguish between people with differences of sexual development (DSDs) and people who are ‘intersex’. They claim that DSDs occur in about one percent of the population. However, most people with DSDs do clearly fall into the female/male dichotomy (Hodson et al. 2019:544). Furthermore, Leonard Sax (2002:174) explains that ‘the true prevalence of intersex is seen to be about 0.018%’. But, most importantly, neither having DSDs nor being intersex constitute a third sex.

There is more conceptual confusion in evidence when they refer to (9) ‘sex and gender categories in sport’. There is no categorisation according to gender (expression), if there were, the existing binary categorisation according to sex would multiply and go beyond men’s and women’s sport, since there are many genders and more and more are being ‘discovered’ as I write.

Greey and Lenskyj distort the law (in the US). They write (9): ‘two-thirds of these bills were directed towards prohibiting trans girls and women from participating in sport’. These athletes are not banned from sport, but only from competing in the female category.

The editors lament (9) ‘the paucity of studies investigating whether trans girls do, in fact, have a competitive advantage over their cisgender counter-parts’. This is another trope commonly advanced to facilitate trans-inclusion in the female category. There are several recent studies confirming, what we all know, that trans girls/women have – on average – a large performance advantage over girls/women (Houben et al., 2022, Mobilia Alvares et al., 2022; Harper et al., 2021; Hilton and Lundberg, 2021; Roberts, Smalley, and Ahrendt, 2021; World Rugby, 2020). But even if we didn’t have these studies, common sense and centuries of experience tell us that anyone who went through male puberty physically outperforms girls/women.

Furthermore, it isn’t just a ‘competitive advantage’ that trans girls/women have, they carry a ‘category’ advantage (see Parry and Martínková, 2021) into the female category. Athletes who opt for cross-hormone treatment experience a small performance loss (only one fifth of their overall advantage; see RFU, 2022). But many do not seek such treatment, and the IOC Framework document from 2021 doesn’t require it anymore. So, we will be faced with more and more male-bodied athletes competing against female athletes – without any mitigation measures in place (this is already a common occurrence in North American high school sport).

We accept many competitive advantages within categories, and there are also socio-economic advantages enjoyed by athletes who live in more prosperous societies, so why not accept trans athletes in the female category?

Even if there were no evidence for a physiological advantage, the demand that the default should be inclusion runs counter to the following prudential principle (Devine et al, 2022): ‘if we lack conclusive evidence, but a change of policy could lead to bad outcomes (for women), then we should not implement such a policy – until we have such evidence.’

Greey and Lenskyj, predictably, attack the idea of a level playing field (10). We accept many competitive advantages within categories, and there are also socio-economic advantages enjoyed by athletes who live in more prosperous societies, so why not accept trans athletes in the female category? As I have said, this line of argument only works if you don’t distinguish between competitive advantages and category advantages (see Devine et al, 2022). They also fail to understand that sport is about what we can do with our bodies on the day of competition; in sport we test bodies, not ‘gender identities’.

Chapter 1 ends with a brief overview of the remaining chapters, but there is no evidence that the chapter itself makes any novel contribution to the debate.

Chapter 2, ‘The Future of Women’s Sport Includes Transgender Women and Girls’, is a multi-authored text which started off as some sort of petition/statement on the Athlete Ally website. They begin with the trivial (and ungrammatical) observation that (17) ‘sport can empower all people – and to change the world.’ The authors continue: ‘Exclusion and restrictions for transgender athletes undermine this cause.’ This nicely illustrates their social justice conception of sport: the default position for trans athletes should always be inclusion, whereas maintaining fairness through meeting eligibility criteria is subordinate to inclusion. This is a mistake as I have previously argued on idrottsforum.org (Imbrišević 2022). The authors list all kinds of benefits of sport, particularly for younger people, as well as some of the tropes from chapter 1. But this is getting it the wrong way round: if sport isn’t fair because of misguided (i.e., social justice) eligibility criteria, then these alleged benefits don’t arise – except for trans athletes.

Chapter 3, by Roger Pielke, is about the effect of the IOC Framework document (2021) for trans women wishing to compete in Olympic sport. In Pielke’s interpretation (34) the IOC’s ‘stance would seem to preclude regulation based solely on biological characteristics and requiring evidence of advantage in competition’. Of course, the latter course of action suffers from a methodological defect: why would trans women athletes want to give their all (during tests and competition), knowing that this could lead to their exclusion from the female category? Measuring advantage in competition would only approach ‘objectivity’ if we focused on trans women who compete in the male (or Open) category.

A lot of trans theory, going back to Judith Butler, (queering gender roles) is in conflict with its actual practice: rolling back what feminism has taught us.

Pielke considers his own position to be ‘pragmatist’. He rejects (35) ‘using biology as the primary (or only) factor in classification but also reject[s] the idea that biology does not matter for classification.’ But it is this hybrid approach to classification (i.e., categorisation) that makes the inclusion of trans women possible in the first place. Pielke is begging the question. He has smuggled in what needs to be proven first: is ‘gender’ (as social role) relevant when it comes to sport categorisation? You would have to believe (like cyclists Veronica Ivy and Emily Bridges do) that trans women are actually ‘female’ for this to make sense. Metaphysically, this would mean that trans women are a subset of the class ‘women’, and ‘women’ are a subset of their own class. This is just one of the many inconsistencies in trans theory. Pielke, like many trans allies, believes that trans women must be accommodated in the female category – but he doesn’t supply an argument for this.

Chapter 4, ‘‘Female’ Sport and Testosterone Panic’, written by Travers (no first name) reads like a piece of activism, rather than scholarship. Travers paints those who want to defend women’s sex-based rights as a (45) ‘constellation of white supremacist, conservative, and heteropatriarchal organizations and movements (…) in collusion with so-called “gender-critical feminists”.’ All of these, allegedly, aim to (45) ‘resist feminist and gender-inclusive challenges to traditional gender and sexual hierarchies’. Travers’ myopia when it comes to gender and sexual hierarchies by trans people and their allies is staggering. Nowadays, a boy who likes dolls instead of trucks must be ‘trans’. And look at the resurrection of gender stereotypes as practiced by many trans women (Jenner 2015): ‘The hardest part about being a woman is figuring out what to wear’. A lot of trans theory, going back to Judith Butler, (queering gender roles) is in conflict with its actual practice: rolling back what feminism has taught us. Travers characterises any critique of trans theory and practice as instances of ‘moral panic’ – but this is nothing but a strawman. We find a similar fallacy on p. 53: ‘these new laws [in the US] signal to trans girls and trans women that they are not welcome in sport’. They are welcome in sport, but they are not eligible for the female category.

Part II of the book opens with chapter 5: ‘Balancing Governance and Human Rights Law’, using the US and UK as examples. The author, Lauren McCoy Coffey, misconstrues the reasoning of UK legislation. During the debate in the House of Lords, prior to passing the 2004 UK Gender Recognition Act, Baroness O’Cathain acknowledged that the proposed law would create a legal fiction. Trans women are only ‘women’ for the purposes of the law, rather than in all respects. This is a point that many trans allies fail to grasp. In UK law exemptions exist for trans people which restrict the scope of their legal recognition, not just in sport but in other contexts as well (Succession, Peerages, and Gender-specific offences). Such qualification/restrictions for trans women (and trans men) are neither discriminatory nor a violation of human rights because the law employs a legal fiction (fictio legis) when granting trans people legal recognition of their gender. The law will treat a trans woman (a male person) as if they were a ‘woman’, but not in all respects – hence the exemptions. Thus, McCoy Coffey’s worry that excluding trans women from women’s sport may be a violation of human rights is misplaced – certainly in the UK context. In other legislations, where there are no exemptions, people may start to believe that the fiction is true.[1]

Chapter 6, by Richard Pringle and Erik Denison, focuses on the World Rugby (WR) policy of banning trans women from the elite women’s game. The authors claim WR failed to consult (enough?) female players, but if you read the respective WR documents this claim lacks any basis. WR widely consulted among elite female players (193 replied to the survey) who overwhelmingly rejected inclusion; Pringle and Denison, in response, did a survey among 36 players at all levels of the game.

The authors don’t grasp and don’t discuss the rationale for the WR policy: inclusion would increase the risk of head injuries to other players (by 20-30%). The fact that this issue has apparently not materialised in the past doesn’t mean we should ignore it (but see here). Furthermore, ignoring this would expose WR/federations/clubs to potential liability claims. Female players may be said to have ‘consented’ to the common risks of playing the game, but they have not consented to an increase in the risk of injury by trans women players. In contrast, WR permits trans men to play on men’s teams, after confirmation of their physical ability; this confirmation aims to reduce risk to themselves. Trans men do not increase the risk of injury to other players – only to themselves. Here the legal principle volenti non fit injuria applies.

Pringle and Denison provide quotes from female players (based on their own survey) who are supportive of inclusion. Tizzer, from Australia, said that she faces female players with a variety of body sizes (88): ‘why aren’t we allowed to discriminate on 150 kilogram … girls against running at a 50 kilogram tiny, little … (player)?’ Tizzer is not aware that the scrum forces in men’s elite rugby and community rugby range from 40% to 120% higher than in the women’s game. Rather than dispelling the ‘matched-for-size’ myth, the authors take such voices as confirmation that the WR policy (88) ‘was guided by paternalism and that WR had a misguided belief that women are weak and in need of male protection.’ Pringle and Denison also insinuate that the WR ban is an injustice akin to racism (78): ‘This is the first time since South African apartheid that rugby leader have banned a population group from playing the game’. Again, such views are based on a misguided conception of social justice.

Madeleine Pape’s contribution (Chapter 7) tries to ‘reveal’ the strategy employed by women who want to protect the female category: ‘Biofeminist Resistance to Trans Inclusion in Sport’. For this purpose she coins the term ‘biofeminism’, but Pape stays at the level of description (and naming), rather than giving an explanation of the phenomenon: what motivates these (UK) feminists, and is their conceptualisation of sport the best one we could have? Pape doesn’t provide any answers.

This text is again full of the usual tropes, some of which I have mentioned already. But I want to comment on one of them: the overlap argument[2]. It goes roughly like this: there is a performance overlap between women and trans women, therefore the latter should be included. Pape and many others haven’t thought this through. There is an overlap between lightweight and super lightweight, between Under-21s and Over-21s, and between men and women. The overlap argument logically leads to the conclusion that we should give up all categorisation. We are then left with one – Open – category (or none); that really would solve the inclusion problem.

The weakness of this book is that it is a one-sided affair – but this is a sign of the times: opposing views are ‘harmful’, ‘cause offence’, or are ‘literal violence’.

Chapter 8 is the last paper in part II of the book. Here Colleen English and Lindsay Parks Pieper argue that we have to have justice first before we can have fairness in school sport. The authors do not consider that some countries (UK, Sweden, Finland) are now turning away from the gender-affirmation model of care for youngster to a critical support model, attempting to look for underlying causes of being ‘trans’ first (e.g. homosexuality, childhood trauma, autism, etc.). This paper is based on the misguided premise that blanket inclusion is just, regardless of fairness issues. The authors don’t consider how inclusion of male-bodied athletes is both unjust and unfair to girls. Supporters of social justice somehow only consider the demands of trans athletes, but are blind to the effects this will have on other athletes. This is nicely illustrated in this passage (112): ‘Justice therefore seeks to eliminate “institutionalized domination” and oppression’. But trans inclusion would lead to ‘institutionalized domination and oppression’ for female athletes. English and Pieper are oblivious to this, because they assume that only minority groups are subject to oppression (113) or that the demands of minority groups always take precedence. But girls/women are not a minority; nevertheless, they have been systematically oppressed – by men. The authors state (114) that the question of whether inclusion supports justice is of ‘higher moral import’ than whether it satisfies conditions of fairness. At first glance this might look right, but they disregard that inclusion subverts the purpose of sport (a fair measure of performance); it makes sport unfair for girls/women. This sports-internal loss of fairness has repercussions for justice considerations in society[3]: it necessarily leads to injustice for girls/women.

Such a one-sided application of fairness and justice considerations occurs if you believe that trans inclusion can only have positive effects on women’s sport (it’s good for everyone) and that the rights of trans girls/women cannot clash with the rights of girls/women. But to gender-critical feminists this is just another instance of gaslighting.

Part III of the book (‘Media Complicity in Trans Exclusion’) consists of three essays. Chapters 9 and 10 are indeed about the depiction of trans athletes in the media, but the last chapter (11), written by the editors, doesn’t really fit the description: ‘Conclusion, Challenges, Struggles and the Way Forward’. Here, Greey and Lenskyj recapitulate – again – the findings of each chapter. And at the end they add two paragraphs about ‘the way forward’ for trans inclusion: ‘as athletes, activists and scholars – we must direct our efforts towards achieving a common goal: to make sport more just for all.’ The reader wonders whether chapters 1 and 11 indicate that the editors just didn’t manage to get enough material for the book. This would be odd, because there are plenty of scholars who could have contributed. Considering the title of the book, the reader would have wished some theoretical/philosophical engagement with the terms ‘justice’ (and ‘trans rights’). This could have provided some substance to this collection of essays.

The weakness of this book is that it is a one-sided affair – but this is a sign of the times: opposing views are ‘harmful’, ‘cause offence’, or are ‘literal violence’. At least one chapter should have been reserved for critics of trans inclusion. There is very little original research in the volume. Pape’s ‘biofeminism’ (chapter 7) looked promising at first, but she remains caught in the tropes of trans theory. This just leaves chapter 8 by English and Pieper, which, although it fails to question trans dogma (e.g., the ‘gender identity’ of children and teens must be affirmed; they cannot be wrong or confused), it is nevertheless worth a read. I leave it to the reader to decide whether they would like to buy this book.

Copyright © Miroslav Imbrišević 2023

Notes

[1] In US law schools ‘jurisprudence’ is rarely taught, this may explain Coffey’s confusion.

[2] Jon Pike calls it the ‘range argument’ (see Devine et al, 2022).

[3] It is to the authors’ credit that they recognise this link between fairness in sport and justice in society, but they only apply it to one group (trans athletes), ignoring the effects on girls/women.

References

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