I used to admire the American Civil Liberties Union (ACLU); I used to donate to the ACLU and was a member of the ACLU; the ACLU took my case when I was drafted illegally, and got me (and several thousand COs) out of our alternative service when the courts ruled unequivocally that the government had violated its own rules. Over history, the ACLU has been a fantastic organization for preserving the civil liberties of everyone, particularly those who are oppressed.
But now they’re going woke, and thereby going downhill. Like the Southern Poverty Law Center, they have decided to get into the social-justice arena—which would be okay except that they are taking positions that are neither reasonable nor supportable. In this case, they’re trying to argue that it’s discriminatory to prohibit biological men who claim that they’re women—”transgender” athletes who have undergone neither surgical nor hormone therapy—from competing in women’s sports. The ACLU has been arguing this for some time (see here), and the motivation behind this are recent instances when men who identify as women, but haven’t undergone hormone treatment or surgery, are beating the pants off women in track events. See this description of a Connecticut race in which two transgender women took first and second place, at least one of which—and probably both—hadn’t begun physical or hormonal transition (see also here).
In this 2019 article on the ACLU website (click on screenshot), two employees of the organization argue against banning “trans girls” from school sports. The problem is the definition of what a “trans girl” is. If it includes males who have decided they’re women but have done nothing to modify their bodies, then their argument loses force. And Medley and Sherwin apparently abide by that definition.
I’ve written several times about the difficult ethical and physiological issues at play when deciding how to deal with both transgender athletes and those who have an intermediate sexuality (see some of the articles at this link). The problem is what kind of definition you use to assign someone as “men” and “women” in contests like the Olympics.
But I don’t think anyone would disagree that if you’re born as a biological man, and you decide you’re a woman but do nothing about it medically except make the claim, you should not be allowed to compete with women. It’s unfair to the women, for there are pronounced physical and strength differences between men and women that give men an inherent advantage in many sports. In fact, this is the very reason why men’s and women’s sports are segregated—to prevent unfairness.
In fact, even if you begin a medical transition to a woman after puberty, the muscle mass and bone strength you’ve acquired already may give you an advantage in sports that lasts for a lifetime. That is a more difficult problem, and one that I’ll leave aside (see my discussion here).
However, in many states, including Connecticut, biological men need not undergo any medical transitioning to claim that they’re women, and thus to compete with women in sports. As the Washington Times notes, (my emphasis below):
Connecticut is one of 17 states that allow transgender high school athletes to compete without restrictions, according to Transathlete.com, which tracks state policies in high school sports across the country. Seven states have restrictions that make it difficult for transgender athletes to compete while in school, like requiring athletes to compete under the gender on their birth certificate, or allowing them to participate only after going through sex-reassignment procedures or hormone therapies.
The other states either have no policy or handle the issue on a case-by-case basis.
“Without restrictions” means that the simple claim that you’re a woman qualifies a biological male to compete in women’s sports. Such claims were apparently made by the two winners of the Connecticut track championships. In fact, according to the Associated Press, the families of three of the women athletes who lost in these competitions are suing the state for its criteria (they also seek to ban all transgender athletes from participating in girl’s sports, which isn’t as cut-and-dried as prohibiting just males who haven’t begun transitioning).
In its self-righteous article, the ACLU uses the Connecticut case an an example of discrimination against transgender people. Here’s a quote (the reference to the Connecticut case isn’t here: it’s at the beginning of the piece.)
There is a long legacy of sex discrimination in athletics. Myths, such as the idea that physical exertion would harm women’s reproductive systems or that women were inherently inferior athletes, were historically used to “protect” women out of participation in entire fields, including marathon racing and contact sports, despite ample evidence that girls can compete and win against boys. The enactment of Title IX, the federal statute banning sex discrimination in school programs and activities receiving federal funds, was intended to end such discrimination, and it has indeed resulted in a dramatic increase in girls’ participation in sports. But girls — and particularly girls of color — still face stark inequalities in opportunities, funding, and resources.
The marginalization of trans student athletes is rooted in the same harmful history of gender discrimination and stereotyping that has impeded the achievement of gender equality in sports as a whole. Old stereotypes regarding athleticism, biology, and gender are being directed at transgender girls, who are frequently told outright that they are not girls (and conversely transgender boys are told they are not really boys). This policing of gender has been used to justify subjecting transgender student athletes to numerous additional barriers to participating in sports, from onerous medical requirements to segregation in locker rooms to outright bans on their participation.
The truth is, transgender women and girls have been competing in sports at all levels for years, and there is no research supporting the claim that they maintain a competitive advantage.
Much of this is okay, but it is also said to apply to what I’ll call, for lack of a better term, “psychologically transitioned women.” And notice the link in the last sentence; it goes to an Everyday Feminism article that doesn’t talk about research at all! I’d bet a substantial amount of money that medically untreated men who compete in women’s sports will indeed “maintain a competitive advantage.”
The ACLU would have a better case if they argued that “transgender women” who have a right to participate in women’s sport were men who had begun hormone and other medical therapies to remove some of the inherent male advantage in size, bone structure, and strength—though even that might not be an ethical fix. But does the ACLU really want to die on the hill of arguing that men who haven’t done anything to their bodies should be able to compete in women’s sports? For surely that would be the end of women’s sport!
As I’ve always said, if someone born male wants us to address them as women, treat them like they’re women in everyday circumstances, use female pronouns, and assure them equal rights, that’s fine. But that equality isn’t automatic when it comes to sports—or other situations like rape counseling when victims want help from biological women. The mantra “trans women are women” is insupportable when those “trans women” rest their identities solely on a claim without any medical intervention—and then want to engage in women’s sports.
Is there any reader who supports the ACLU’s arguments—unless the transgender women who want to compete have begun medical transitioning? Does anybody feel that an unaltered male should be able to compete with women solely on the basis of an identity claim? I doubt it. And yet that’s the law in 17 states.
The ACLU would have more credibility if it had more nuance (yes, I used that word) about what it was trying to defend. Of course we must come to grips with the athletic implications of transgender people, but we can start by asserting that some medical intervention is required before you can “switch teams.”
It’s very sad when the defining institutions of the old Left, like the ACLU, undergo mission creep of this kind, becoming so woke that they can no longer rationally deal with legal or moral issues.
UPDATE: I see from the ACLU’s website that they’ve been busy tweeting away about this. An example:
Those attacking trans youth — through lawsuits like this or through attacks in state legislatures: You need to know that we will not back down. And you will need to come through ALL OF US.https://t.co/O1UKX051W2
— ACLU (@ACLU) February 12, 2020
Really? Come at me, bro? What the bloody hell happened to this once admirable organization?