Recently Fina (International Swimming Federation) voted to formally disqualify male transgender athletes who have transitioned to female from competing in elite women’s aquatics competitions including swimming, water polo, diving, artistic swimming and open water swimming and high diving.
As a result of this ruling Lia Thomas (University of Pennsylvania) has apparently been disqualified from competing in the Olympics and other elite competitions.
Others will be disqualified as well from events for which they have previously qualified
The 34-page policy document says that male-to-female transgender athletes could compete in the women's category only if "they have not experienced any part of male puberty beyond Tanner Stage 2 [which marks the start of physical development], or before age 12, whichever is later."
The decision whether to allow transgender women the right to compete against non-transgender women in athletic events in which muscular strengthen provides an advantage, presents a tragic choice for which there is no perfect solution.
But a solution is required, and although it’s a close case with reasonable arguments on both sides, I tend to opt for not banning transgender women from such events.
My preference is not without costs, but when I compare these costs to the benefits of nondiscrimination, I believe they probably should be incurred.
The costs are borne directly by women who may not be able to prevail over those who were born with xy chromosomes and more testosterone, and indirectly to fans who believe that nondiscrimination unlevels the playing fields (and pools) unfairly.
The direct benefits are to transgender woman who want to compete as women, and indirectly to all transgender people who face discrimination.
On a larger scale, both the costs and benefits accrue to society in general and especially to those of us who believe that the quest for real equality is a high priority, while recognizing that strong arguments for equality are being presented by both sides.
In some respects, a decision to favor the benefits to all transgender women over the costs to non-transgender female athletes is not so different by the costs borne by university applicants who might have been admitted to their first choice but had to settle for their second or third choice because affirmative action applicants were given preference over them.
It may not be fair to them, but society has opted to further other values.
There is a difference of course: the second-place athletic winner knows precisely who deprived her of her gold, whereas the person rejected from his first-choice college can’t be certain that he would have been admitted but for the anonymous affirmative action candidate who may have taken his place.
This difference, in my view, does not rise to the level of a morally compelling distinction.
Part, but only part, of the reason for my personal preference for nondiscrimination inheres in the numbers: the number of transgender women who seek to compete against other women is relatively small — even smaller when one considers the kind of elite completion in which Thomas is involved.
The number of transgender people who are today discriminated against in all aspects of their lives is far, far greater.
And the hurt suffered by discrimination may be more painful and enduring than finishing second instead of first.
Some non-transgender women would, of course, suffer from winning the silver rather the gold that they might have won if transgender women were disqualified. But many more will suffer — emotionally, symbolically and in other less measurable ways — if society refuses to recognize transgender women as "real" women for all possible purposes. (Obviously there may be some limited medical reasons for focusing on birth chromosomes.)
Not only is there no perfect answer to this tragic choice, but the best answers may vary from sport to sport and by age and other factors. Moreover, in some contexts, compromises may be feasible.
For example, offering two gold medals or first place finishes where a transgender athlete finished ahead of a non-transgender athlete – or more scholarship to athletes who finish behind transgender competitors. This would be harder to do with team sports.
But just as compromises were made with regard to bathrooms — build more individual unisex spaces — so, too, should we be open to non-absolute bans, or other ways of recognizing the reality and justification for transitioning from one gender to the other.
Put another way, our society should always try to resolve tragic choices against discrimination and in favor of equality, especially by those who have been marginalized by so many.
So even those who disagree with my preferences for allowing transgender women to compete in female competitions, should do everything in their power to eliminate discrimination against transgender people in every reasonable context. Justice, fairness and equality demand no less.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and and the author most recently of "The Case for Color Blind Equality in the Age of Identity Politics," and "The Case for Vaccine Mandates," Hot Books (2021). Read more of Alan Dershowitz''s reports — Here.
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