UBC law school panel frets over trans exclu­sion

The Uni­versity of Brit­ish Columbia’s Allard School of Law, and its Centre for Fem­in­ist Legal Stud­ies, hos­ted an event earlier this month titled “More than a game: the fight for gender equal­ity and inclu­sion in sports.” The event’s descrip­tion argued that “sig­ni­fic­ant inequal­ity, abuse, and exclu­sion con­tinue to shape the global and local sport­ing land­scape.”

The biggest con­cern of the pan­el­lists was, unfor­tu­nately, ensur­ing that bio­lo­gical males who identify as women be allowed to com­pete in female sport cat­egor­ies. (Not on their list of expressed con­cerns: women being punched in the face by bio­lo­gical men in Olympic women’s box­ing. Odd.)

Pan­el­lists included Har­rison Browne, trans­man and former National Women’s Hockey League (NWHL) player; Ridan Cun­ning­ham, trans­man and law­yer with Egale Canada; Michele Krech, pro­fessor of fem­in­ist legal the­ory; and Ann Peel, law­yer, sports arbit­rator and former ath­lete.

The event began with Peel and Krech arguing against sex test­ing in sports. Peel sug­ges­ted that sex test­ing (via cheek swabs or hair samples) is an out­dated and fright­en­ing ordeal for female ath­letes, per­formed by “men in white coats.” She described under­go­ing this type of sex test­ing in the 1980s, when she com­peted in race walk­ing. “It was an exer­cise in humi­li­ation. You had to prove you were lesser than, that you were vul­ner­able … and it has always been polit­ical,” said Peel. She did not explain how or why hav­ing two X chro­mo­somes — as females do — is proof of being a “lesser” human being. (It’s not, of course.)

Krech, mean­while, insisted that act­iv­ists should fight to end sex test­ing by sports fed­er­a­tions via legal argu­ments about informed con­sent (con­sent can­not be obtained, she said, if ath­letes know they could be dis­qual­i­fied for refus­ing), or by attempt­ing to use Canada’s Genetic Non-dis­crim­in­a­tion Act as a legal loop­hole to pro­hibit sex test­ing. Krech also advoc­ated for Canada to issue a blanket ban on sex test­ing by sport­ing bod­ies, and to refuse to host any inter­na­tional sport­ing groups that per­form it.

Des­pite this event being hos­ted by one of Canada’s (sup­posedly) most pres­ti­gi­ous uni­versit­ies, the speak­ers — who woe­fully lamen­ted the spread­ing of “mis­in­form­a­tion” — all made the false claim that trans per­sons are being “banned” from sports, includ­ing in Alberta (no one is banned; rather, ath­letes are some­times being told to com­pete on the team cor­res­pond­ing to their sex). Each of the speak­ers obscured or ignored the plain, sci­en­tific­ally known truth: that males, no mat­ter how they identify or what their testoster­one level is, have a sport­ing advant­age over females.

Gender ideo­logues, Cun­ning­ham included, cherry-pick rare and low-qual­ity stud­ies in an attempt to dis­miss or deny this real­ity. The pre­pon­der­ance of evid­ence shows that males have a sport­ing advant­age. From the Amer­ican Col­lege of Pedi­at­ri­cians: “Ana­tom­ical dif­fer­ences exist between the sexes, and, from infancy on, these dif­fer­ences impact the body’s response to acute exer­cise, train­ing, and ulti­mately ath­letic per­form­ance begin­ning in infancy and con­tinu­ing through adult­hood. Testoster­one’s impact on the brain, skeletal struc­ture/ muscle mass, and muscle fibre type and muscle memory, as well as car­di­ores­pir­at­ory sys­tem (heart size, stroke volume and lung capa­city) are archi­tec­tural. In other words, these fea­tures are per­man­ent and not modi­fi­able, and there­fore they do not change with estra­diol sup­ple­ment­a­tion or testoster­one sup­pres­sion.” The pan­el­lists under­mined their own argu­ments by assert­ing that “only” small num­bers of trans­wo­men/girls are attempt­ing to play female sports (and that any con­cern about the issue is over­blown and motiv­ated by bigotry). If it’s not unfair for trans­wo­men to play against women, then why do the num­bers mat­ter? Those who advoc­ate for an “inclus­ive” female cat­egory (the pan­el­lists) should proudly state that they see zero issue if every single ath­lete on a given women’s team was a trans­wo­man. It’s either a prob­lem to have trans-iden­ti­fied males in the women’s cat­egory, or it isn’t. Pick an argu­ment.

Iden­tit­ies do not play sports — bod­ies do.

Instead of facing this truth, Browne now argues that all trans per­sons belong in the female sports cat­egory: both the trans­men tak­ing testoster­one and the trans­wo­men who attempt to lower their nat­ural levels of the hor­mone. (Browne used trans­wo­man swim­mer Lia Thomas as an example of someone who belongs in women’s sports.) Women, rather than hav­ing the ded­ic­ated sports cat­egory we deserve, should appar­ently be forced to accom­mod­ate any­one with a spe­cial iden­tity whose feel­ings could be hurt if they had to face real­ity — and the men’s team. I have yet to hear an act­iv­ist explain why trans­men should play on women’s teams, as this argu­ment under­mines their asser­tion that trans­men are lit­eral men, and is an unin­ten­tional admis­sion that females have a sport­ing dis­ad­vant­age.

Another astound­ing asser­tion from the panel: Egale’s Cun­ning­ham said that females who voice a desire to “pro­tect” their sex-based sports cat­egor­ies are mak­ing an argu­ment that is “deeply infant­il­iz­ing” of women as a class of per­sons.

“There’s something deeply infant­il­iz­ing about the way they’re approach­ing adult women. The idea that you can’t, as, like, a 40-year-old woman who wants to play soc­cer, decide whether or not a trans­wo­man can par­ti­cip­ate on your team for your­self, and decide whether or not you want to play with that per­son — the gov­ern­ment needs to step in instead and ‘pro­tect you,’ right?” said Cun­ning­ham.

It is per­plex­ing that Cun­ning­ham, a law­yer focused on LGBTQ human rights and dis­crim­in­a­tion, can so utterly lack the abil­ity to see women’s human­ity, here. When women demand to have our sex­based rights upheld, we are not infant­il­iz­ing ourselves, deeply or oth­er­wise. Women — and not just the LGBTQ ones — deserve equal­ity, too. We deserve a sports cat­egory that is segreg­ated by sex.