Yesterday's NY Times featured an interesting guest op-ed (The XY Games) on sex tests in the Olympics. Its author, Colby College English Professor Jennifer Finney Boylan relates some interesting and tragic stories about women misidentified as men, before concluding that "[t]he best judge of a person’s gender is what lies within her, or his, heart." That's a noble but utterly misapplied sentiment.
Professor Boylan begins in confusion. She repeatedly uses "gender" and "sex" as synonyms. In some contexts they may be, but for purposes of segregating athletes, what matters is sex, not gender. Sex is a biological phenomenon, gender a social one. The reason we have separate Olympic competitions for men and women is because for Olympic sports that place a premium on speed and strength, having men and women compete together would effectively mean that women don't even qualify, much less medal. Sure, the best female athletes in the world are faster, stronger and more skilled at their sports than 99% of the males in the world, but elite training still does not get them to the level of the best male athletes in the world. We don't have separate categories for male and female violinists, English professors, or biologists because we don't think that sex confers an advantage on either sex for the relevant skills. Although sex discrimination and gender discrimination certainly give men advantages in just about every field, the way to combat that discrimination is hardly to segregate.
The core of Professor Boylan's essay is the important observation that not only is gender socially constructed, but that sex itself, the biological category, is not a binary. She notes that people who are phenotypically female may in fact have a Y chromosome but be androgen-insensitive. Other women may be infertile. Etc. That's all true: the line between biologically male and biologically female is blurred by a small but significant number of borderline cases. However, it doesn't follow that the effort to draw a biological line should be abandoned in favor of a purely social one.
Professor Boylan comes closest to advancing a persuasive argument for her position when she observes that male-to-female post-operative, post-hormone-therapy transsexuals perform at the same level as women who are more conventionally female. In other words, going from male to female in this drastic way gives up whatever advantages maleness otherwise confers. But for the argument to really work, Professor Boylan would need to point to evidence that people who are genetically and phenotypically male but who really live their lives as women don't have any athletic advantage. I don't know whether that's true, but I do know that a test that asked how people live their lives would be at least as intrusive---probably more intrusive than---the sorts of biological testing that is now being conducted.
Posted by Mike Dorf