Women's Rule

I'm thinking -- rather in the abstract -- about the idea of woman-only legislative or decision-making bodies. Seems like a bad idea.

The notion of woman-only legislature sometimes arises in the context of abortion discussion. For instance, I saw this proposed "new rule" -- apparently propounded by Rachel Maddow -- on Facebook a while back.

Rachel Maddow seems to be proposing that laws regulating vaginas -- such as abortion laws -- be made only by an all-female legislature.

While I appreciate the sentiment, the "new rule" seems unwise. In the first place, the logic doesn't hold. We surely wouldn't want to say that only people with guns get to make laws regulating them. Or that only people with a million dollars get to make laws taxing millionaires. Or that only people making toxic waste get to make laws regulating toxic waste.

In the second place, and more importantly, even if you DO have a vagina, you shouldn't get to make laws regulating other people's vaginas. An abortion ban, for instance, is a bad idea -- and it would still be a bad idea even if it were favored by a majority of women.

Either there is a public interest that justifies curtailing freedoms, or there isn't. (I happen to believe, when it comes to abortion policy, there is no public interest that warrants curtailing women's reproductive freedom.) If there is an overriding public interest, then assessing that public interest and considering strategies for protecting it would be the work of the public, both women and men, through their elected representatives, both women and men. If there is no overriding public interest, then it doesn't matter whether the regulators would be men or women -- no one gets to curtail the freedom. Either way, a woman-only legislature would be unwarranted. I reject Rachel Maddow's suggestion that a women-only legislature be created to decide abortion policy.

Leaving aside abortion, are there some situations -- beyond, say, the governance of a college sorority house -- where a single-gender decision-making body would be appropriate? I wouldn't have thought so until the 2016 Olympics brought Caster Semenya to my attention. On Sat Aug 20, the South African runner took the gold in the women's 800-meter, with a time of 1:55.28. While Semenya's margin of victory was comfortable -- second-place Francine Niyonsaba of Burundi finished in 1:56.49 -- she set no world or Olympic records. (The world record for the women's 800m, 1:53.28, was set in 1983, and the Olympic record, 1:53.43, was set in 1980. Suspicions of performance-enhancing doping cloud both of those records.)

Semenya is hyperandrogenic. She was raised and identifies as female. She has internal testes and no ovaries or womb. Her testosterone levels are three times as high as those of most women.

In 2009, Semenya won races at the world track and field championships in Berlin, and questions about her gender followed.

Track fans were quick to note that Semenya, with her beefy biceps and flat chest, doesn’t look like most women. The New Yorker called her “breathtakingly butch,” noting that, “Semenya became accustomed to visiting the bathroom with a member of a competing team so that they could look at her private parts and then get on with the race.” (Olga Khazan, Atlantic)

In 2011, the International Association of Athletics Federations (IAAF) approved a rule that capped the amount of testosterone female athletes could naturally posses and still compete as women: 10 nanomoles per liter -- three times higher than the 99th-percentile level of naturally-occurring testosterone levels in women.

Last year, 2015, the Court of Arbitration, citing lack of clear evidence that testosterone alone constitutes an unwarranted advantage, suspended IAAF's testosterone cap.

The London Olympics of 2012, however, were played while the IAAF's testosterone rule was still in effect. Some athletes went to extraordinary lengths to meet, and go beyond, the rules:

At the London Olympics, four female athletes, all 18 to 21 years old and from rural areas of developing countries, were flagged for high levels of natural testosterone. Each of them subsequently had surgery to remove internal testes, which produce testosterone, as well as procedures that were not required for resuming competition: feminizing vaginoplasty, estrogen replacement therapy and a reduction in the size of the clitoris. (John Branch, NYTimes)

For the 2012 Olympics, Semanya took drugs to lower her testosterone levels. She experienced reduced muscle mass -- and perhaps an effect on her performance, though not much. She won silver in the 800m, with a time of 1:57.23. (The gold went Mariya Savinova of Russia who finished in 1:56.19.)

So is it fair for Caster Semenya to compete as a woman -- and without artificially counteracting her natural testosterone?

Some points to consider:

1. Olympians are, by nature, abnormal -- often in genetically identifiable ways.

"Still, it’s not considered unsportsmanlike to simply be strange-looking. Countless Olympians are celebrated for unorthodox features that give them an edge in their sports. Much has been made of Michael Phelps’s preternatural wingspan and ultra-flexible feet that turn into 'virtual flippers.' Biostaticians have said Usain Bolt’s 6-foot-5-inch height and fast-twitch muscle fibers make him perfectly suited to sprinting. Other athletes have less obvious advantages, like high levels of hemoglobin or diminutive heights tailor-made for tumbling passes.(Olga Khazan, Atlantic)

Eero Mantyranta, a Finnish cross-country skier who won seven Olympic medals in the 1960s, including three golds, was found to have a genetic mutation that increased his hemoglobin level to about 50 percent higher than the average man’s. (Jere Longman, NYTimes)

Why do we celebrate these genetic abnormalities, but not Semenya's?

2. The IAAF doesn't inquire into whether some men have abnormally high natural testosterone, and whether that gives them an unfair advantage. The response might be: Abnormally high testosterone in a man doesn't raise a question of sex classification, while Semenya's testosterone, and internal testes, do raise questions about her sex classification. But are we content to say it's fair that women athletes are subject to having their gender questioned and men athletes never are?

3. Gender rulings for athletic eligibility intersect with race and class in troubling ways.

"Testimony presented at a hearing on the IAAF’s sex testing procedures last year showed that 'to date, [the testosterone limit] has only been used against women from developing countries' and that the rules created 'an inconsistent and unfair patchwork of compliance by different countries around the world.' It’s notable that the women who’ve made the news for being scrutinized under the testosterone rule have been people of color. (Christie Aschwanden, FiveThirtyEight)

4. Rulings on eligibility for athletic events don't occur in a vacuum, but reflect and reinforce cultural norms. What are the harms from restrictive norms, and what is the good from greater acceptance of diversity? Determining that a woman is "too masculine" is a humiliation -- one to which sporting authorities have subjected many women through the years. Indian middle-distance runner Santhi Soundarajan failed a gender test in 2007, was shunned by her community, and attempted suicide. Indian sprinter Dutee Chand refused to take treatments to lower her testosterone level, faced athletic ineligibility, and appealed. She testified that “she fears that if she loses her appeal, she will have to leave her village.” She told "of a young female friend who’d been forced out of her village after people refused to recognize her as a girl because of her appearance" (Aschwanden). Sex testing (including enforcing a testosterone maximum) is not simply a matter disqualifying a few hyperandrogenic women in order to expand competitive opportunities for "normal women." Rather: (a) the disqualification is particularly humiliating; (b) such disqualification reinforces discriminatory attitudes toward all women who look "too manly;" (c) sex testing reinforces stereotypes of femininity instead of promoting acceptance of all body types and talents.

"When you’ve had people tell you that your body is too muscular or you’re not feminine enough (as I have), a system that makes it OK to enforce a particular kind of female body feels vindictive." (Christie Aschwanden, FiveThirtyEight)

We have a system of competitive athletics that forces us to treat sex as if it were binary even though we know sex is not binary. Sex expresses on a continuum. Some have proposed that athletic competitions should offer three categories for competitions: men, women, and intersex. But that would merely replace the task of policing one dividing line (between "men" and "women") with two dividing lines (one between "women" and "intersex" and one between "intersex" and "men"). Sex is no more trinary than it is binary. (If three, why not four? Or five? Or seventeen?) Unless we are willing to make athletic competition unary -- which would be the end of women's athletics -- athletics is probably stuck with the Procrustean task of fitting the sex continuum into a binary.

One might conclude that Semenya should be allowed to compete as a woman but still have doubts about how much further along the intersex continuum a person can be and still be woman. And under what standards or conditions should transwomen be allowed to compete as women?

The suggestion that people like me (men) have no place in the conversation now looks much more reasonable than it did in the initial example. When it comes to regulating women's reproductive choices, no one -- not men, and not other women, either -- should get to override the individual woman's choice. When it comes to who counts as a "woman" for purposes of athletic competition, some decision-making body is unavoidable. It is only women's interests that such a body must weigh -- the interests of all women, whether hypoandrogenic, hyperandrogenic, or mesoandrogenic. Let an autonomous sports authority consisting exclusively of current and former women athletes and coaches oversee the determinations of eligibility for women's athletics. Include transwomen, and some intersex woman-identified people -- even some who probably wouldn't themselves be found eligible to compete as a woman -- on the eligibility board.

It's not that the decisions of an all-woman board would be beyond criticism. They wouldn't be. But the meddling of men in the question of who counts as a woman has a sordid history and can add nothing positive at this point. Our job is to get out the way and support empowering women themselves to rule on this one.

On the question of eligibility to compete in women's sports, my opinion is that I have no business having an opinion.