Years ago, when I came across a seemingly unassailable fact that fell into dispute, I would describe trying to find a way to respond to the dispute as akin to trying to explain what “the” means.
We seem to be in a period much like that now, on several fronts, one of which has to do with trans/gender identity activism. So, as always, when I find I need to find some way to get out of the heat and into the light, I pick up a book. In this case, one such book was Kathleen Stock’s excellent Material Girls: Why Reality Matters for Feminism.
Near the close of her book, Stock writes:
“In this book, I’ve rejected gender identity theory. Since current trans activism enthusiastically embraces gender identity theory, it follows that I don’t believe ordinary trans people are well served by current trans activism. Trans people are trans people. We should get over it. They deserve to be safe, to be visible throughout society without shame or stigma, and to have exactly the life opportunities non-trans people do. Their transness makes no difference to any of this. What trans people don’t deserve, however, is to be publicly misrepresented in philosophical terms that make no sense; nor to have their everyday struggles instrumentalized in the name of political initiatives most didn’t ask for, and which alienate other groups by rigidly encroaching on their hard-won rights. Nor do trans people deserve to be terrified by activist propaganda into thinking themselves more vulnerable to violence than they actually are.” [p. 240]
Stock describes herself as “a public philosopher, a freelance writer and a recovering academic.” It’s a good description, as befits her journey on the way to the conclusions I quote. You don’t have to agree with every line (or even understand every line, as Stock is in part responding to some pretty arcane academic theorizing), but the book is a paradigm of clear reasoning and marshalling of evidence. In the course of this, she does a superb job of laying out the pitfalls and pratfalls attendant to the current “trans” debate, including an excellent, concrete discussion of potentially serious negative consequences to, among other things, sex-based rights women have fought for decades to attain.
The chapters of the book address, in sequence:
A Brief History of Gender Identity
What is Sex?
Why Does Sex Matter?
What is Gender Identity?
What Makes a Woman?
Immersed in a Fiction
How Did We Get Here?
A Better Activism in the Future
There’s plenty to chew on here, but I want to highlight, in particular, her chapter “Why Does Sex Matter?”. In this chapter, she lays out “four areas of human life in which sex-associated difference clearly matters (and in which advocates of gender identity theory say it doesn’t).” [p. 79]
First, she discusses “the difference sex makes to medicine.” [p.79] Here’s an excerpt:
Since health and disease can be directly affected by sex characteristics, sex is highly relevant to medicine. This is obviously true of reproductive medicine, but that is far from the only medical area in which sex is relevant. In childhood, girls are more susceptible than boys to neural tube defects, scoliosis and congenital dislocation of the hip. Boys are more susceptible to asthma, autism, stuttering and pyloric stenosis. Later in life, females have greater susceptibility to multiple sclerosis, while males who get it have a worse disease progression. [p. 79]
The list is longer, but you get the idea and can likely provide your own examples, too. She goes on to state: “None of this has anything to do with gender identity or social role. Evidence suggests most of the differences just listed are causally linked to lifelong sex chromosomes, the protective effect of endogenous sex hormones or lack of them, and other physiological factors stemming from biological fact.” [p. 80] . . . There is no harm in naming sex in medical contexts; more importantly, there is harm in not doing so.”
She lists several harms; I would add that we’d better think very hard about what happens to both public health and medical data if we remove—as trans/gender identity activists seem to demand—the ability to identify who is biologically male and who biologically female from, for example, databases relied upon to ascertain the prevalence and demographics of various conditions and diseases.
Stock does a similarly cogent job of discussing three other areas where sex matters, but where trans/gender identity activists say it does not: sports, sexual orientation, and the social effects of heterosexuality. [pp. 83-108] She then concludes: “Even if it is successfully argued that we should recognize gender identity, there should be little doubt that we should also recognize, track and legally protect sex. Sex and gender identity should not be placed in competition.” [p. 108]
Over the course of the book, one of the things that struck me is how what had begun as an arcane academic exercise in postmodern thought had so thoroughly jumped the shark to insinuate itself into all manner of institutions and public places, from schools and universities to department store dressing rooms, and most worrisome to me, as a recovering lawyer, into law and regulation. Indeed, I became so concerned that I wrote a comment in response to a proposed amendment to rules relating to Title IX, as follows:
“I am writing to comment on one aspect of the Notice of Proposed Rulemaking by the Office for Civil Rights, Department of Education, 87 FR 41390, dated July 12, 2022, specifically, the aspect that proposes to:
“Clarify that, unless otherwise provided by Title IX or the regulations, a recipient must not carry out any otherwise permissible different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity.”
“I am concerned that there do and will exist cases where women’s sex-based rights may conflict with rights under the proposed regulation that relate to gender identity. In such cases, I fear there will be unintended erosions of rights we as women have fought for long and hard if the standard used is weighted toward no more than “de minimis harm” to rights proposed to accrue on the basis of gender identity. It appears to me to make more sense to promulgate a rule that takes these possible direct conflicts into account and, at the least, provides a balancing test that weighs the relative substantive harms to each protected group, based on criteria set forth in the rules, and, on that basis, determines which protected rights control in any given situation.
“As one example, I look to what Martina Navratilova has cautioned with regard to women’s sports, which Title IX has helped do so much to support since its inception. That is, in certain sports, the innate advantages to biological males, no matter how they choose to identify themselves, could mean that women are seriously set back in the gains we have made. As Navratilova has noted “trans women playing in women’s sport have a ‘built-in advantage’ and sees the answer as ‘more inclusion on the men’s side’. ‘The female sport category has to be protected,’ she argues. ‘The male windpipe is 25 to 50% larger than the female airway, which means they can get more oxygen. And that doesn’t shrink when you take hormones.’ https://www.theguardian.com/sport/2022/jun/26/martina-navratilova-do-the-right-thing-interview The same issue pertains to non-transitioned biological males who self-identify as women. I would argue that, in such cases, if competitive capability in a given sport is advantaged by, for example, a larger windpipe, then the sex-based right must take precedence over any conflicting gender identity based right. Yet what the proposed rule on this issue seems to suggest is that, in such an event, the gender identity based right would prevail.
“I want to make clear that I deplore those who have latched on to this issue for purposes of fearmongering and otherwise use it for abhorrent ends. I was in law school in 1972 when Title IX passed. I lived through that time; I saw what an enormous, positive transformation it worked on the sex-based rights of women. Just as one example, I was one of only 14 female members in my class. These days classes in my former law school, I am proud to see, are at least 50-50 male and female. I do not want to see those hard-won rights eroded, and I beg of those who have the final say on these rule changes to think carefully about unintended consequences and adjust the language of the rules to assure that rights won by women back then remain fully protected now.”
I am but one drop of water in the ocean, but it does appear, thankfully, that thousands of people have commented with similar concerns. One who has not, I am dismayed to note, is Senator Elizabeth Warren, who I admire enormously, but who, in a letter supporting Title IX regulatory changes, left her own thinking cap at home in joining others to make this statement:
“Protecting transgender students’ rights to participate in athletic activities consistent with their gender identity in no way disadvantages their fellow students, and does not take away or undermine the protections Title IX provides for women and girls.” [cite]
Notably, unlike almost every other proposition in the letter Senator Warren signed, this one contains no footnote providing evidence in support of that proposition. That is most uncharacteristic of Senator Warren, and I hope she will put her thinking cap back on and reconsider this. I recommend to her a long conversation with Martina Navratilova as a good place to start, followed by reading Material Girls and having a long conversation with Kathleen Stock.
I’ll give Stock the last word on the issue of sex and sports. Here are excerpts from what she discusses and concludes (and she does at least include lots of supporting footnotes):
“According to these criteria, for most sports, males and females should be in different competitive categories for at least two reasons. First: for most sports there are large, statistically significant differences between relevant physical performance levels for males and females. Second: in contact sports there are also potentially dangerous differences between the two.” [p. 85]
“The superior athletic performance levels of males are accounted for by possession of a Y chromosome, associated natural differences in testosterone levels, and the irrevocable post-pubescent effects these leave on the body. In terms of speed, there is a consistent 10 per cent performance gap between elite males and elite females in track and field, which also extends to swimming, cycling and rowing. . . . Wherever speed and strength are important indicators of success in a given sport, the sport should have separate male and female categories. In contact sports, this is yet more pressing because differences in average weight combined with speed and strength make contact with male bodies particularly dangerous for female ones.” [p. 85]
“For years, none of this has looked remotely controversial.” [p. 85]
But today, we have well and truly gone through the looking glass, as “trans activism has succeeded in convincing at least some professional bodies that sex is not relevant to sporting categories. The most extreme version of this position says that gender identity alone, not sex or even medical transition, should determine whether one competes in men’s or women’s categories.” [p. 86]
“Sometimes comparisons are made with the situation of people with DSDs like Caster Semenya—reported as having XY chromosomes—to argue that trans women should compete with females. Whatever we say about the case of competitors with DSDs and Y chromosomes, it’s an important difference that their sex is (perhaps) complicated to classify, whereas the sex of trans women typically is not. And if the point is pressed that we must treat both alike, then so be it. In that case, neither should compete in female categories. For otherwise, we face nothing less than the destruction of female sport.” [p. 87]