That's very interesting as a policy discussion (I hope legislatures apply that framework). Indeed, I think many people who get obsessed with who gets to compete in what sport in highschool are missing the fact that the real goal isn't about figuring out who is best at sport but an enjoyable and educational experience (and that changes at more elite levels)
But whatever else might be true it can't be the case that the mere change in usage of a term in language changes the way a law applies or doesn't -- and our modern discussion of the sex/gender distinction don't necessarily apply to the term as used in those laws. That kind of rule would be chaos and make our fights about terminology even more problematic and undemocratic.
And as much as I want trans people to be protected it's a good thing if we have to fight this put via the democratic process. Yes, the lack of legal protection will be hard on many people but in the long run real protection will only come with a social consensus and I fear that this only comes about via the hard process of political and social discussion which is harder to have if the court acts first (unlike in Obergerfel where the court recognized what had become a social reality/inevitability).
--
P.S. the kind of argument that worked in Bostock just isn't as applicable here. That argument worked because part of the intent behind title 7 was to prevent employers from using conformity with gender stereotypes to police employment (so you can't say that we hire non-gay men and women for the same reason you can't say we hire both men and women who wear gender appropriate clothing). Especially because if you push that argument too hard you end up with extreme results like eliminating women's sports.
I don't know that you disagree with Professor Coleman. Her view is that "sex" (still) means "sex," and she would read federal law accordingly. (As she notes, some states and municipalities have taken different views—and that has happened through the political process.)
She also accepts the holding of Bostock, basically for the reasoning you outline. As she explains in her book, the Court's ruling in that case is consistent with her view that "sex" is "sex" (and not "gender"). But she opposes the elimination of women's sports—precisely because she still believes that "sex" is real.
This is such an interesting and difficult issue of competing rights claims. I want so badly for transgender people to have full rights and privileges, and while I was too young when the anti-gay movement was going on to have been very aware of it, I feel like the strong reaction to trans rights often comes from a very similar discriminatory place, and I refuse to be a part of that. But then aside from discriminatory motivations (or perhaps not separate from that?), there are genuine questions as to bathrooms, locker rooms, prisons, sports, surgeries for minors, and how it should be taught/discussed by teachers in schools. When it comes to rights and prohibitions, I really hope we keep in mind the relatively very small number of transgender persons - i.e., we should think about what an extraordinary impact a right/prohibition will have on one transgender person vs. the relatively very small number of cisgender people that right/prohibition will affect. Difficult stuff.
As to the constitutional issues, I actually just wrote a paper for law school on the potential for finding protection for transgender persons under the Equal Protection Clause. It seems to me that the Supreme Court would have to recognize a new "quasi-suspect" class (transgender status or gender identity), rather than rely on sex as it did in Bostock. I re-listened to the portion of the Bostock oral argument (the part argued by David Cole) dealing with the transgender petitioner and many justices actually frequently asked about that point - fitting transgender rights into discrimination on the basis of sex vs. recognizing a new category of protection against discrimination on the basis of transgender status. It's hard for me to see how defining sex for the purposes of the EPC to mean only sex assigned at birth could really fit with the Court's precedent. As I understand it, the Court has drawn a line between classifications based on the biological differences between the sexes (e.g., Nguyen v. INS, finding no EPC violation for that reason) and classifications based on gender stereotypes (e.g., US v. Virginia, finding EPC violation for that reason). In Bostock, Cole had to argue that it was a gender stereotype to discriminate based on "sex assigned at birth" because it's the "ultimate gender stereotype" to assume that someone assigned male at birth will live as a man for his entire life. Felt a bit strained to me in the context of EPC precedent.
I agree with what you said, but I think it's worth noting that the small number of trans individuals cuts both ways.
Ultimately. much of what we are talking about here are arational (if not irrational) preferences). A Vulcan wouldn't care what pronoun was used or bathroom they were asked to use one way or another just as they wouldn't feel uncomfortable because cis-men were sharing their bathroom (my college had mixed gender restrooms and it was no big deal).
So, while I absolutely hope we can move towards a society where no one is bothered by who uses what bathroom (indeed a society where we have so few gendered norms that it doesn't even make sense to be trans eg bc a man doing feminine coded things doesn't raise eyebrows) I think we should recognize that it really does make some people feel uncomfortable to share bathrooms with trans people and just because it's not an objectively based fear doesn't mean it's not real -- even if I wish I could magic it away.
That doesn't mean we have to always cater to those worries (and in a generation I expect they'll disappear) but in the meantime I suspect that treating that feeling as legitimate and searching for compromise (like adding locking individual bathrooms for people who feel uncomfortable) will work out to everyone's benefit.
I think most people really want to be nice and accommodating on a personal level. And if we push too hard and say you have to pick and either treat the concerns of trans-people as illegitimate or the concerns of those who don't feel comfortable using the same restroom as a trans-woman I fear we sometimes push people into a more extreme and hateful attitude than they otherwise might have taken.
I think Dr. Coleman misses a couple of issues. The first is safety. There have recently been several instances of young women being severely injured when competing against natal males competing in women’s sports at the junior high and high school level. Also longitudinal studies with control groups done at John’s Hopkins in the late 80’s and 90’s when this issue wasn’t political demonstrated that up to 80% of those suffering from Gender Dysphoria became non dysphoric post puberty and most identified as gay or lesbian as an adult. The Cass Report which did a systematic review of all of the studies of gender dysphoria as well as extensive interviews with patients, their families as well as the staff of the Tavistock Institute found no evidence to support gender affirming care. The Nordic countries and much of Europe is now severely limiting gender affirming care to clinical studies.
Regarding the longitudinal studies, I think it's important to distinguish a few issues: gender dysphoria vs medical transitioning and how often people mistakenly believe transitioning is a good idea from how we treat those who do (and if it is a good idea for some).
There are alot of young people who identify as non-binary nowadays that would have just been into David Bowe and gender bending in a previous generation and it's just normal (if sometimes very difficult) teenage angst/self-discovery etc etc and probably a good thing (if u can tell your parents they don't understand all the better). And I suspect there is some bleed over between people who have more difficult experiences with puberty and diagnosises of gender dysphoria. But not everyone with such a diagnosis will medically transition and if all it amounts to is giving someone a name to what they feel and encouraging them to explore how they present themselves to the world no biggie -- and not that relevant to these issues.
Now there is an interesting and hard question of whether we are giving people too much or too little resistance to medical transitioning as minors (I tend to think we let adults do what they want with their bodies) but that doesn't tell us much about how to treat those who do.
Are you suggesting that women are more likely to be injured when competing against natal males -- I mean people get injured in sport all the time. And even in sports like wrestling that same risk presumably applies anytime someone is particularly good or strong so I'm not sure that rises to a problematic level.
Of course, that doesn't mean we should let trans-women compete in such sports but that's ultimately a question of entertainment and what makes for compelling stories. After all, we already let men and women with naturally high levels of various hormones compete and the categories and rules are choosen based on what speaks to the public and audience. If we had no external sexual characteristics we'd probably not have seperate women's and men's sports and if most winners in a sport turned out to be male it would be no different than finding out most winners in sprinting races have a naturally high proportion of fast twitch muscle fiber.
I think this is an excellent nuance comment. In regards to sports safety I think males who have undergone puberty should be excluded from women’s sports, hormonal levels are not the important factor. Lung, muscular structure and cardiovascular strength is more of an issue. Lia Thomas is a classic example. The other issue is women’s private spaces.
The other issue is social contagion. Historically, males have experienced gender dysphoria at a rate of three times the rate of women. Since the mid 2000’s pubescent females have begun stating they are experiencing gender dysphoria at a rate of three times the rate of males. Also if you look ate the DSM gender dysphoria is experienced at a very early age 3 Or 4 not at the verge of puberty. So I believe that this is a new phenomenon that is being driven by social media.
It is also concerning as to the extreme number of those diagnosed with adolescent onset of gender dysphoria who are also on the autism spectrum and/or depressed or have personality disorders.
That there no well done studies ( longitudinal studies with control groups ect.) to determine whether or not these life altering treatments are effective is an issue.
Re: social contagion, I'm skeptical if the social contagion here is driving the genuine medical transitions rather than just all the people harmlessly claiming they are really a boy/girl/non-binary and I don't really see that as any more worrying than the kids in the 80s deciding to identify as goths or whatever (and if you can roll your eyes and say your parents don't get it even better). If young people want to experiment with different gender roles i don't see much harm in the normal case w/I medical intervention.
That is a harder question.
--
Re: informed consent and a minor you can say the same thing about getting treated for a disease -- remember christian scientists think that interferes with your relationship with god. Ultimately, caregivers have to make choices for/with minors and the best you can do is to do your best to make the choice that will work out best for them. Unfortunately there are ideological pressures in both directions making this difficult.
--
Re: sports. Merely pointing out people who have gone through male puberty have an advantage is not a sufficient argument. We let people with all sorts of genetic advantages compete in sports against people who lack them.
As I said, I think you can make that argument in some cases but that fact alone isn't sufficient. However, in the normal case of highschool athletics when the goal is largely social/educational and the fraction of medically transitioned individuals is so low I kinda feel like the benefit of modeling inclusion and compassion outweighs the minor negatives -- but that balance shifts as you move to more elite levels with different social purposes.
--
Re: private spaces, see my comment above. Except in a few very unique situations (certain prison contexts) there is no reason to believe that women are objectively less safe as a result of letting trans-women enter. Indeed, coed restrooms work perfectly fine (my college had them...ok someone in the next stall or shower unit might have a different gender so what). Indeed, it seems likely that moving to coed restrooms or spaces more generally is probably objectively safer simply because the greatest risk is being in their alone (a man willing to attack a woman can just ignore the sign saying women only).
That doesn't mean we don't consider the very real feelings that some women have about finding themselves feeling unsafe with trans-woman present but we have to balance those with the feelings trans people have as well as well as the future impact on social norms. Ultimately, this isn't really about objective safety or anything but about arational feelings on both sides (which doesn't make them less real).
For many who participate in HS sports the payoff is college scholarships. When natal men take part in women’s sports one of the potential downsides is fewer scholarships for women. I agree that adolescence is a time of trying different aspects of one’s personality including sexual aspects.
The problem with medical interventions is that they make what in most cases are transitory aspects of one’s life permanent. Hence the regret of those that want to detransition.
Also, the puberty blockers given to pause development have very significant long term consequences such as elimination of the ability to experience orgasm and sterility in addition to significant loss of bone density. How is someone who has never had an orgasm able to give informed consent to allow them to take a drug that will rob them of their ability to have one.
This is what social contagion looks like. When suddenly the script flips. When something that was always a 3 to to 1 male to female phenomenon becomes a a 3 to 1 female to male phenomenon. When something that is seen in the very young now becomes something that happens to girls on the verge of adolescence.
People can do what they want as adults. I think this is going to end very badly for the medical professionals that are participating in this.
They have already bad this practice in Europe and the Scandinavian countries. In the UK they have issued the Cass report that reviewed all of the studies and have determined that there is no scientific basis for treating children or adolescents with puberty blockers or surgery.
Re: scholarships, ultimately, you don't change the number of scholarships just who gets them. So why is it better for college scholarships to go to natal women rather than trans women?
Usually, the argument there is something about underrepresentation or opportunity but women are massively overrepresented relative to men in college. The only reason the elite universities (excepting extreme STEM schools like Caltech) don't have a huge female to male ratio is very substantial affirmative action for men. If you need more women in college just end that (imo we should for other reasons).
--
Regarding the medical interventions, I think everyone agrees there needs to be a higher standard there I'm just questioning the evidence of social contagion for medical transitioning not just non-permanent stuff.
I just don't think informed consent does the work you want it to do here. Suppose someone pre-puberty discovers they have to go on hormone blockers immediately or they'd have a huge risk of cancer death. I think you'd agree you wouldn't just shrug and say -- they don't know what they are giving up so they have to accept a reduction in life expectancy by half.
That's not actual but it proves that you agree that even if minors can't fully know what they are giving up (or a non-mother getting a hysterectomy) sometimes you just need to do the best you can.
That just brings it back to the quality of the evidence -- does it suggest they are better off in expectation if you do or don't do this thing. I agree we need to be careful here and it's likely exaggerated in many places for ideological reasons -- but that's a different question from what do we do if/when it suggests net benefit from acting early which can't be recouped later.
I do suspect we should push back more here but just a guess.
That's very interesting as a policy discussion (I hope legislatures apply that framework). Indeed, I think many people who get obsessed with who gets to compete in what sport in highschool are missing the fact that the real goal isn't about figuring out who is best at sport but an enjoyable and educational experience (and that changes at more elite levels)
But whatever else might be true it can't be the case that the mere change in usage of a term in language changes the way a law applies or doesn't -- and our modern discussion of the sex/gender distinction don't necessarily apply to the term as used in those laws. That kind of rule would be chaos and make our fights about terminology even more problematic and undemocratic.
And as much as I want trans people to be protected it's a good thing if we have to fight this put via the democratic process. Yes, the lack of legal protection will be hard on many people but in the long run real protection will only come with a social consensus and I fear that this only comes about via the hard process of political and social discussion which is harder to have if the court acts first (unlike in Obergerfel where the court recognized what had become a social reality/inevitability).
--
P.S. the kind of argument that worked in Bostock just isn't as applicable here. That argument worked because part of the intent behind title 7 was to prevent employers from using conformity with gender stereotypes to police employment (so you can't say that we hire non-gay men and women for the same reason you can't say we hire both men and women who wear gender appropriate clothing). Especially because if you push that argument too hard you end up with extreme results like eliminating women's sports.
I don't know that you disagree with Professor Coleman. Her view is that "sex" (still) means "sex," and she would read federal law accordingly. (As she notes, some states and municipalities have taken different views—and that has happened through the political process.)
She also accepts the holding of Bostock, basically for the reasoning you outline. As she explains in her book, the Court's ruling in that case is consistent with her view that "sex" is "sex" (and not "gender"). But she opposes the elimination of women's sports—precisely because she still believes that "sex" is real.
Ok, thanks for clarifying. I was a bit confused by the title and assumed this was the implied legal relevance. My bad.
This is such an interesting and difficult issue of competing rights claims. I want so badly for transgender people to have full rights and privileges, and while I was too young when the anti-gay movement was going on to have been very aware of it, I feel like the strong reaction to trans rights often comes from a very similar discriminatory place, and I refuse to be a part of that. But then aside from discriminatory motivations (or perhaps not separate from that?), there are genuine questions as to bathrooms, locker rooms, prisons, sports, surgeries for minors, and how it should be taught/discussed by teachers in schools. When it comes to rights and prohibitions, I really hope we keep in mind the relatively very small number of transgender persons - i.e., we should think about what an extraordinary impact a right/prohibition will have on one transgender person vs. the relatively very small number of cisgender people that right/prohibition will affect. Difficult stuff.
As to the constitutional issues, I actually just wrote a paper for law school on the potential for finding protection for transgender persons under the Equal Protection Clause. It seems to me that the Supreme Court would have to recognize a new "quasi-suspect" class (transgender status or gender identity), rather than rely on sex as it did in Bostock. I re-listened to the portion of the Bostock oral argument (the part argued by David Cole) dealing with the transgender petitioner and many justices actually frequently asked about that point - fitting transgender rights into discrimination on the basis of sex vs. recognizing a new category of protection against discrimination on the basis of transgender status. It's hard for me to see how defining sex for the purposes of the EPC to mean only sex assigned at birth could really fit with the Court's precedent. As I understand it, the Court has drawn a line between classifications based on the biological differences between the sexes (e.g., Nguyen v. INS, finding no EPC violation for that reason) and classifications based on gender stereotypes (e.g., US v. Virginia, finding EPC violation for that reason). In Bostock, Cole had to argue that it was a gender stereotype to discriminate based on "sex assigned at birth" because it's the "ultimate gender stereotype" to assume that someone assigned male at birth will live as a man for his entire life. Felt a bit strained to me in the context of EPC precedent.
I agree with what you said, but I think it's worth noting that the small number of trans individuals cuts both ways.
Ultimately. much of what we are talking about here are arational (if not irrational) preferences). A Vulcan wouldn't care what pronoun was used or bathroom they were asked to use one way or another just as they wouldn't feel uncomfortable because cis-men were sharing their bathroom (my college had mixed gender restrooms and it was no big deal).
So, while I absolutely hope we can move towards a society where no one is bothered by who uses what bathroom (indeed a society where we have so few gendered norms that it doesn't even make sense to be trans eg bc a man doing feminine coded things doesn't raise eyebrows) I think we should recognize that it really does make some people feel uncomfortable to share bathrooms with trans people and just because it's not an objectively based fear doesn't mean it's not real -- even if I wish I could magic it away.
That doesn't mean we have to always cater to those worries (and in a generation I expect they'll disappear) but in the meantime I suspect that treating that feeling as legitimate and searching for compromise (like adding locking individual bathrooms for people who feel uncomfortable) will work out to everyone's benefit.
I think most people really want to be nice and accommodating on a personal level. And if we push too hard and say you have to pick and either treat the concerns of trans-people as illegitimate or the concerns of those who don't feel comfortable using the same restroom as a trans-woman I fear we sometimes push people into a more extreme and hateful attitude than they otherwise might have taken.
I think Dr. Coleman misses a couple of issues. The first is safety. There have recently been several instances of young women being severely injured when competing against natal males competing in women’s sports at the junior high and high school level. Also longitudinal studies with control groups done at John’s Hopkins in the late 80’s and 90’s when this issue wasn’t political demonstrated that up to 80% of those suffering from Gender Dysphoria became non dysphoric post puberty and most identified as gay or lesbian as an adult. The Cass Report which did a systematic review of all of the studies of gender dysphoria as well as extensive interviews with patients, their families as well as the staff of the Tavistock Institute found no evidence to support gender affirming care. The Nordic countries and much of Europe is now severely limiting gender affirming care to clinical studies.
Regarding the longitudinal studies, I think it's important to distinguish a few issues: gender dysphoria vs medical transitioning and how often people mistakenly believe transitioning is a good idea from how we treat those who do (and if it is a good idea for some).
There are alot of young people who identify as non-binary nowadays that would have just been into David Bowe and gender bending in a previous generation and it's just normal (if sometimes very difficult) teenage angst/self-discovery etc etc and probably a good thing (if u can tell your parents they don't understand all the better). And I suspect there is some bleed over between people who have more difficult experiences with puberty and diagnosises of gender dysphoria. But not everyone with such a diagnosis will medically transition and if all it amounts to is giving someone a name to what they feel and encouraging them to explore how they present themselves to the world no biggie -- and not that relevant to these issues.
Now there is an interesting and hard question of whether we are giving people too much or too little resistance to medical transitioning as minors (I tend to think we let adults do what they want with their bodies) but that doesn't tell us much about how to treat those who do.
Are you suggesting that women are more likely to be injured when competing against natal males -- I mean people get injured in sport all the time. And even in sports like wrestling that same risk presumably applies anytime someone is particularly good or strong so I'm not sure that rises to a problematic level.
Of course, that doesn't mean we should let trans-women compete in such sports but that's ultimately a question of entertainment and what makes for compelling stories. After all, we already let men and women with naturally high levels of various hormones compete and the categories and rules are choosen based on what speaks to the public and audience. If we had no external sexual characteristics we'd probably not have seperate women's and men's sports and if most winners in a sport turned out to be male it would be no different than finding out most winners in sprinting races have a naturally high proportion of fast twitch muscle fiber.
I think this is an excellent nuance comment. In regards to sports safety I think males who have undergone puberty should be excluded from women’s sports, hormonal levels are not the important factor. Lung, muscular structure and cardiovascular strength is more of an issue. Lia Thomas is a classic example. The other issue is women’s private spaces.
The other issue is social contagion. Historically, males have experienced gender dysphoria at a rate of three times the rate of women. Since the mid 2000’s pubescent females have begun stating they are experiencing gender dysphoria at a rate of three times the rate of males. Also if you look ate the DSM gender dysphoria is experienced at a very early age 3 Or 4 not at the verge of puberty. So I believe that this is a new phenomenon that is being driven by social media.
It is also concerning as to the extreme number of those diagnosed with adolescent onset of gender dysphoria who are also on the autism spectrum and/or depressed or have personality disorders.
That there no well done studies ( longitudinal studies with control groups ect.) to determine whether or not these life altering treatments are effective is an issue.
Also, how does a minor give informed concent.
Re: social contagion, I'm skeptical if the social contagion here is driving the genuine medical transitions rather than just all the people harmlessly claiming they are really a boy/girl/non-binary and I don't really see that as any more worrying than the kids in the 80s deciding to identify as goths or whatever (and if you can roll your eyes and say your parents don't get it even better). If young people want to experiment with different gender roles i don't see much harm in the normal case w/I medical intervention.
That is a harder question.
--
Re: informed consent and a minor you can say the same thing about getting treated for a disease -- remember christian scientists think that interferes with your relationship with god. Ultimately, caregivers have to make choices for/with minors and the best you can do is to do your best to make the choice that will work out best for them. Unfortunately there are ideological pressures in both directions making this difficult.
--
Re: sports. Merely pointing out people who have gone through male puberty have an advantage is not a sufficient argument. We let people with all sorts of genetic advantages compete in sports against people who lack them.
As I said, I think you can make that argument in some cases but that fact alone isn't sufficient. However, in the normal case of highschool athletics when the goal is largely social/educational and the fraction of medically transitioned individuals is so low I kinda feel like the benefit of modeling inclusion and compassion outweighs the minor negatives -- but that balance shifts as you move to more elite levels with different social purposes.
--
Re: private spaces, see my comment above. Except in a few very unique situations (certain prison contexts) there is no reason to believe that women are objectively less safe as a result of letting trans-women enter. Indeed, coed restrooms work perfectly fine (my college had them...ok someone in the next stall or shower unit might have a different gender so what). Indeed, it seems likely that moving to coed restrooms or spaces more generally is probably objectively safer simply because the greatest risk is being in their alone (a man willing to attack a woman can just ignore the sign saying women only).
That doesn't mean we don't consider the very real feelings that some women have about finding themselves feeling unsafe with trans-woman present but we have to balance those with the feelings trans people have as well as well as the future impact on social norms. Ultimately, this isn't really about objective safety or anything but about arational feelings on both sides (which doesn't make them less real).
For many who participate in HS sports the payoff is college scholarships. When natal men take part in women’s sports one of the potential downsides is fewer scholarships for women. I agree that adolescence is a time of trying different aspects of one’s personality including sexual aspects.
The problem with medical interventions is that they make what in most cases are transitory aspects of one’s life permanent. Hence the regret of those that want to detransition.
Also, the puberty blockers given to pause development have very significant long term consequences such as elimination of the ability to experience orgasm and sterility in addition to significant loss of bone density. How is someone who has never had an orgasm able to give informed consent to allow them to take a drug that will rob them of their ability to have one.
This is what social contagion looks like. When suddenly the script flips. When something that was always a 3 to to 1 male to female phenomenon becomes a a 3 to 1 female to male phenomenon. When something that is seen in the very young now becomes something that happens to girls on the verge of adolescence.
People can do what they want as adults. I think this is going to end very badly for the medical professionals that are participating in this.
They have already bad this practice in Europe and the Scandinavian countries. In the UK they have issued the Cass report that reviewed all of the studies and have determined that there is no scientific basis for treating children or adolescents with puberty blockers or surgery.
Re: scholarships, ultimately, you don't change the number of scholarships just who gets them. So why is it better for college scholarships to go to natal women rather than trans women?
Usually, the argument there is something about underrepresentation or opportunity but women are massively overrepresented relative to men in college. The only reason the elite universities (excepting extreme STEM schools like Caltech) don't have a huge female to male ratio is very substantial affirmative action for men. If you need more women in college just end that (imo we should for other reasons).
--
Regarding the medical interventions, I think everyone agrees there needs to be a higher standard there I'm just questioning the evidence of social contagion for medical transitioning not just non-permanent stuff.
I just don't think informed consent does the work you want it to do here. Suppose someone pre-puberty discovers they have to go on hormone blockers immediately or they'd have a huge risk of cancer death. I think you'd agree you wouldn't just shrug and say -- they don't know what they are giving up so they have to accept a reduction in life expectancy by half.
That's not actual but it proves that you agree that even if minors can't fully know what they are giving up (or a non-mother getting a hysterectomy) sometimes you just need to do the best you can.
That just brings it back to the quality of the evidence -- does it suggest they are better off in expectation if you do or don't do this thing. I agree we need to be careful here and it's likely exaggerated in many places for ideological reasons -- but that's a different question from what do we do if/when it suggests net benefit from acting early which can't be recouped later.
I do suspect we should push back more here but just a guess.