More than a Game

Yesterday the Supreme Court heard the cases about sports bans for transgender youth, transgender girls more specifically, from Idaho and West Virginia. I attended the rally outside the court as I did last year with Skrmetti, the gender affirming care case. I had/have little hope for the outcome of this case though I am heartened a bit by Chris Geidner’s (Law Dork) analysis that the court may make a relatively narrow ruling specific to the context of sports. Kagan’s very active role in questioning may be a sign that she is working on a strategy to limit the damage via a compromise that will blunt the worst case scenario–a determination that neither the equal protection clause nor Title IX/Civil Rights Act offer any protection to transgender persons. In Skrmetti the number of concurrences (everyone in the majority but Gorsuch wrote something!) indicated the conservatives are still working some things out in terms of their position(s) on trans issues and that may manifest here in a let the states decide path forward. Skrmetti was an awful decision but Roberts tried to do a threading the needle thing and avoiding a ruling on trans issues by saying that laws restricting gender affirming care are not about trans people at all (lol) or their rights, rather the laws utilize medical condition and age as the relevant classifications. A dumb argument but one that did not necessarily touch on the rights of trans individuals outside of the context of gender affirming care for minors specifically. The arguments of Alito, Thomas, and Barrett in their concurrences clearly signaled that some justices were/are ready to go much further but these cases may not be the vehicle for doing so.

I thought it was notable that the ACLU did not have Chase Strangio (the first openly trans lawyer to argue before the court) making the argument before the court and that their advocate (Josh Block) was making what seemed to be a fairly conservative argument that single-sex sports are both constitutional and protected by Title IX but that trans women and girls who have not gone through male puberty and thus would not have any of the advantages associated with it are properly classified as women and girls. Block repeatedly declined to define the category of “woman” which seems correct. In no other context where claims of sex discrimination are made is the claimant required to define the category of woman in order to demonstrate they belong under the classification. And, for that matter, we are able to identify race-based discrimination without having a definition of race. We operate on a day-to-day basis with general social consensus about these categories without chromosonal screenings or DNA tests. As we have tried to pin down sex classifications we find ourselves in the same sort of legal and social absurdities as we see in defining race. In order to enforce, for example, race-based segregation or anti-interracial marriage laws the parsing of “blood quantum” to determine racial categories reveals the constructed nature of those categories. Indeed, in Plessy v. Ferguson (separate but equal) the litigants challenging Jim Crow laws chose a light-skinned man specifically to challenge the law in order to demonstrate the ways the law was arbitrary both in defining race and using it for differential treatment. Race is a category generated by and for racism. In a similar manner pinning down a definition of “sex” may also prove unworkable and is likely to result in greater scrutiny of the bodies of women and girls in ways that are far more harmful than losing in a track meet to a trans girl.

I was late and therefore missed the appearance of Speaker Johnson at the anti-trans rally but I did see a few of the Usual Suspects on their side including detransitioner Chloe Cole and their superstar grifter Riley Gaines. Cole attempted to make a pronoun joke that fell flat. Another speaker tried to get the crowd riled up about supporting women’s sports but the crowd seemed pretty meh about the prospect of actual women’s sports as opposed to fantasies about locker rooms. I was mostly focusing on the pro-trans rally and so did not fully absorb who was speaking and what they were saying but it seemed that many of the speakers were women athletes who had been “harmed” in unspecified ways by trans competitors. Notably they claimed that Hecox (who tried out for but never competed on the Boise State cross country team, eventually running on a intramural team) had harmed at least 400 women? I’m unsure what this means–is that the number of women she beat in the completely inconsequential intramural events? The number she competed against? How were they harmed other than finishing one (1) place lower than they might have otherwise? They did seem to give a fair amount of time to Posie Parker (Kelly-Jean Kay Minshull), a British far-right activist and TERF who has made a name for herself in Islamaphobic/transphobic circles (who frequently overlap).

I observed that the visual branding of the anti-trans side pitched itself as protecting womenandgirls and they have really leaned in to the branding of “I was a lifelong liberal/Democrat until I saw how far they had gone with men in women’s sports!” They had hats–Our Sports, Our Spaces–and an array of signs like “Stop transing the gays” (suggesting the ease with which trans persons navigate the world has led parents/doctors to make gay kids trans), and variations on “protect girls sports.” Also notable were a number of signs reading Democrats for protecting women’s sports. Their public branding distanced themselves from the right wing hate machine that turned their eye of Sauron onto trans folks (looking at you Heritage and FRC) but the presence of the aforementioned Parker and Johnson plus Linda MacMahon and the head of the Republican AGs association betrays the underlying politics of the anti-trans movement. The pro-women branding masks the overall gender project of the right that seeks to reinforce the rigid boundaries ofthe binary through anti-trans and anti-women legislation. The people seeking to expel trans people from public life are also attacking reproductive rights, health and child care support, public health programs, and employment protections for womenandgirls.

As has been pointed out a trillion times, women’s sports are facing a number of crises including the underfunding of programs. And women and girls have experienced a horrifying degree of sexual abuse from coaches and doctors. Women’s professional sports remain underfunded (Brittany Griner was playing in Russia–where she was arrested and held–because the WNBA does not pay even their biggest star enough) and under supported. None of these problems are solved by expelling trans athletes. Indeed, I’m fairly certain most of the anti-trans advocates would be fine with the eradication of most women’s sports (unless their daughters are playing it.) I would love to ask these big fans of women’s sports their favorite female professional athlete (Danica Patrick doesn’t count, though I would not be surprised if they disliked her for impeding on the masculine turf of…..driving). Big fan of women’s sports? Oh yeah? Name one.

In a sad sign of the times I found it depressing that Justice Sotomayor spent some time in questioning asking why Idaho did not allow Hecox–who decided to drop her bid to join the cross country team–to be dropped from the case as she requested. Sotomayor said that having her name attached to a case–and one that is likely to be a low moment for trans Americans–was adding insult to injury when she has, in many ways, already lost. On the other side a number of conservatives have been complaining that Barrett and Gorsuch correctly gendered Hecox and BPJ calling them “she” and “her” in their questions. For people who claim to just want to protect women they seem awfully eager to erase trans people–whether from harassment (Hecox definitely wants anonymity) or simply in the courtesy of referring to people as they request to be called. What a time to be trans, when simply existing is described as a trauma for womenandgirls.