Philosophers File Amicus Brief in Supreme Court Cases on Transgender Athletes
A group of 24 philosophers has submitted an amicus curiae brief for two US Supreme Court cases concerning laws about the participation of transgender athletes in sports.

The two cases are Bradley Little, Governor of Idaho, et al., Petitioners v. Lindsay Hecox, et al. and West Virginia, et al., Petitioners v. B. P. J., By Her Next Friend and Mother, Heather Jackson.
At issue in the cases is the question of whether the Equal Protection Clause of the Fourteenth Amendment prevents states from offering separate boys’ and girls’ sports teams based on biological sex assigned at birth. The latter case also raises the question in regard to Title IX.
The brief’s intervention consists mainly in metaphysical and normative arguments about natural properties*. Its authors argue that the states are justified in excluding trans women from women’s sports and trans men from men’s sports.
Here’s the summary of its argument:
On their face-value interpretation, the Idaho and West Virginia statutes enable female persons, and only female persons, to participate in certain spaces—namely, in certain sports teams, leagues, events and competitions. To achieve this aim, the Idaho and West Virginia statutes preclude male persons, and only male persons, from participating in those sports teams, leagues, events and competitions. On this face value interpretation, the statutes propose to organize sports in part around the sex categories: female (person) and male (person).
This brief contends that organizing sports around the sex categories is fully justified, given the officially uncontested fact that it is justified to organize sports approximately around the sex categories. Its argument leverages a general philosophical distinction between more and less natural categories. This distinction will be applied to reinforce the case for organizing sports around the sex categories, as well as against reorganizing sports around alternative categories to which vividly ad hoc exceptions have been built in. Finally, the argument will be extended to the disputed question of the intended function of the Idaho and West Virginia statutes, which it is concluded is, indeed, the face-value one: to enable female participation in sports by means of excluding male would-be competitors.
The group who submitted the brief was led by Daniel Kodsi, John Maier (George Mason University), and Robert P. George (Princeton University). Its other members are Tomás Bogardus (Pepperdine University), Peter Carruthers (University of Maryland), Adam Caulton (University of Oxford), Cora Diamond (University of Virginia), Rona Dinur, Paul Elbourne (University of Oxford), Gary Francione, (Rutgers University), Molly Gardner (University of Florida), Moti Gorin (Colorado State University), Joel David Hamkins (University of Notre Dame), Holly Lawford-Smith (University of Melbourne), Mary Leng (University of York), Jeff McMahan (University of Oxford), Kate Phelan (RMIT University), Jon Pike (The Open University), John Schwenkler (University of Illinois Urbana-Champaign), Bradford Skow (Massachusetts Institute of Technology), Scott Soames (University of Southern California), Roger Teichmann (University of Oxford), Timothy Williamson (University of Oxford), Crispin Wright (New York University/University of Stirling).
The brief is one of around twenty that were submitted for both cases. Its full text is below (and also here).
* This sentence originally referred to “natural kinds.” It has been changed to “natural properties” at the suggestion of Daniel Kodsi.
Huzzah for these philosophers, for standing up for women when it matters and is potentially costly.
This has nothing to do with “standing up for women” and everything to do with reinforcing patriarchal authority over all women. Patriarchy depends on reinforcing starkly binary and biologically essentialist conceptions of sex and gender, which transgender people threaten.
And when has it ever been costly to pile on the scapegoats of a burgeoning authoritarian movement?
…I’m afraid I can only feel a sense of shame on behalf of my discipline here, as I see no reason for philosophers to intervene, especially with arguments that seem to me ignorant and motivated. (And what exactly is that motive supposed to be? Just to clear things up?)
You seem to have it all figured out. Didn’t you answer your own question in your first sentence? Their motive, by your lights, is to reinforce patriarchal authority.
A person’s motives for defending x are not dispositive. That is, even if your motives for defending x are unsavory, it doesn’t follow that x is false. I would’ve thought this was obvious.
But I would’ve thought it was equally obvious that human beings haven’t yet attained the ability to read minds. How do you know these philosophers are motivated by a desire to reinforce patriarchal authority?
Oh, come on. I did not mean to imply that their subjective maxim of action, if you will, is to reinforce patriarchy. I do mean to suggest, however, that they may be deluding themselves that their ends are innocently philosophical (i.e., clarity, truth, dialogue, etc.).
Transgender people, particularly those who do not “pass” (usually not by choice), often generate strong negative reactions in those unaccustomed to violations of binary gender norms. These negative reactions may result in powerful incentives to act to limit transgender people’s freedom (as well as women’s freedom, when they step outside norms, or for that matter, men’s freedom, when they do). This much seems obvious, right?
None of these philosophers (I hope) believe that reinforcing rigidly binary gender norms is by itself a good reason to act to limit transgender rights. Yet they are highly motivated to find some reason, simply because of the strength of the incentives here. I agree that it is possible for someone engaged in such motivated reasoning to hit on a good point now and again. But it seems to me less likely that they will, especially when they seem to lack much insight on what the sources of their incentives really are.
I tried to express the same sentiment, including the sense of profound shame in my own profession, and that comment didn’t go through. I’m glad someone more eloquent than me managed to express that profound sentiment to the satisfaction of those moderating these comments.
Let me add that to witness the energies that vocal ‘philosophers’ pour into denoucning already subordinated groups of people has been more than sobering. Had I ever asked myself what it would feel, and be, like to witness Kant defending racial (ah pardon,
‘natural’) hierachies — well, depending on how you feel, pick your answer.
Yes, though Kant appears to have changed his views on race: https://philpapers.org/archive/KLEKST.pdf
I wonder if the philosophers on the brief are similarly capable of changing their views. Sapere Aude is a high ideal, but one terribly difficult to really practice.
Transgender people, you claim, “generate strong negative reactions in those unaccustomed to violations of binary gender norms,” and these negative reactions *may* incentivize them to act to limit transgender people’s freedom. Sure.
What’s troubling is your subsequent affirmation that the philosophers who participated in writing the brief were, indeed, motivated by such “incentives.” That doesn’t follow (I know you know it doesn’t, but I don’t know what else to say). What’s your evidence that they’re even “unaccustomed to violations of binary gender norms”?
If the arguments of the philosophers who participated in writing the brief are catastrophically wrongheaded, then let’s show that they are. I fail to see the wisdom of accusing them of “deluding themselves” or lacking insight into the “sources of their incentives.”
I’ve already examined these arguments myself and so do have opinions on their substantive merit. The motivation to intervene is what is most suspect here, and so that is the focus of my criticism. What could possibly motivate a philosopher to do this, at this time? There are many good comments below that criticize the arguments (see, e.g., this one).
Good point: who reinforces the patriarchy – or cui bono? Is it GC women or trans women? This issue came up in this review of “Gender Defenders of the Sport Binary: Mediating Discourses of Difference against Intersex and Transgender Female Athletes (2025)“. See here: https://idrottsforum.org/imbmir_bell-osborne250910/
Jones and Slater have an interesting paper that touches on this.
I share your concern about the political uses of binary categories, but I think your response conflates sex and gender in a way that muddies what is at issue in the brief.
The statutes and the philosophers’ arguments appeal explicitly to sex, understood in biological terms, not to gender identity. That distinction matters in sport because biological sex does make a difference: the performance gap between males and females is large enough that even the best female athletes would virtually never beat the top males in most sports. Sports have therefore long been organized around sex categories to preserve fair competition and meaningful opportunities for women.
Patriarchy certainly operates by enforcing gender norms, but that is distinct from the claim being made here: namely, that state law may legitimately organize sports according to sex categories assigned at birth.
If we collapse sex and gender into a single axis of “binary norms,” we risk missing (or conveniently avoiding) where the philosophical brief is actually intervening. The real question is whether biological sex is a relevant basis for classification in this context. That’s where I think the argument succeeds, and why the distinction between sex and gender should not be blurred.
I’m afraid these “realist” positions on sex and gender, even when set out by a Tenured Realist, are far too simple, if not simplistic. Gender is not merely an identity, and bodies do not appear in the world with sex labels. Moreover, transgender people make profound (and real) changes to their bodies and genders that confound binary categories. But these are matters to discuss in a philosophy seminar, not ones to litigate in an amicus brief to the Supreme Court.
My main complaint is with the intervention itself, which makes me feel ashamed to be a philoospher. There is some engagement with the substantive policy question itself in the comments below. My own basic take is that sports officials in various leagues and localities were doing fine handling these (extremely rare) cases, until the issue was identified as a political wedge to break up liberal alliances.
I know it’s not as if the APA is filing the brief, but the authoritative tone makes it seem as if they are informing the Court of a disciplinary consensus that obviously does not exist.
Your main complaint is with the intervention, but mine is with the analytical moves that underpin your critique. Rules in sport cannot be left to ad hoc judgments or political tides; they require clear, generalizable criteria. Sex provides that because male physiology confers enduring performance advantages that persist regardless of transition. Transgender people do make real and important changes to their bodies and genders, but those changes do not erase the broad differences that make sex indispensable for maintaining fair and meaningful female competition. The real simplification is collapsing sex and gender into one axis, a move that makes it easier to ignore the interests of female people. Whatever the complexities of sex and gender, without sex-based categories women as a class would lose fair competition and the very possibility of elite female athletics.
You’re just asserting these things, which seem obviously false or highly controversial to me but–even you must admit–at least subject to reasonable disagreement. And whatever “analytical moves” with respect to sex and gender I may be making do not underpin my critique of the intervention itself.
I do not mean to offend anyone, but I’m genuinely puzzled by your claim, “Patriarchy depends on reinforcing starkly binary and biologically essentialist conceptions of sex and gender, which transgender people threaten.” If transwomen are women, how are they a threat to the sex and gender binary reinforced by the patriarchy? (And why must a successful patriarchy depend on such binaries if all it needs is the supremacy of the male sex/gender?) But if transwomen are not women, why must they be eligible for women’s sports (rather than, say, transwomen’s sports)?
Your background assumption (required to get the first arm of your argument off the ground) that part of being a woman is not threatening the patriarchy-reinforced binary, is pretty much a non-starter.
If part of what it is to be a woman is to have your existence support the sex/gender binary then feminism wouldn’t have grounds for existing.
To your question: The existence of trans people threatens bio-essentialist notions of gender. This shouldn’t be controversial — look into the long term effects of HRT. The dominant hormone in ones endocrine system determines quite a lot about how a body functions, from how and where fat is stored, to disposition towards creating muscle tissue, to skin softness and sensitivity, to the experience of heart attack symptoms (anecdotally anyway, research on trans people is pretty scarce). After long enough on HRT a significant number of a trans woman’s biomarkers are closer to a cis woman’s than a cis man’s. Put another way, HRT changes a wide range of relevant sex characteristics which in turn undermines the immutability assumption of the bio-essentialist view.
No amount of HRT will ever change your chromosomes, it’s that simple. Also, gender-critical feminists do not have a bio-essentialist notion of gender to start with. They simply do not believe in genders. If you mean a bio-essentialist notion of sex, then I can’t see why trans people threaten this binary, as HRT does not change your chromosomes. Just like adding H2O2 to KMnO4 doesn’t make it water based on the fact that they are both colourless.
What do you think follows from that (i.e., from never “chang[ing] your chromosomes”)? Because I don’t think anything necessarily follows from it at all. As for the other claim, many of them certainly claim “not [to] believe in genders.” However, they seem to just substitute the word “sex” and then double-down on the “bio-essentialist notion.” Which trans people threaten. Hence the retreat to chromosomes.
It is widely accepted that moral facts are contingent on natural facts. True, nothing normative necessarily follows from anything natural, but we still decide that siblings should not marry and have kids based on the biological fact that they share similar genes. It is in fact a very common practice that we draw some implications from that, or most of our moral practices would be meaningless. Also what even is with the claim that they “substitute the word ‘sex'”? It has been ‘sex’ all the way, which is biological rather than social. Of course, people like Judith Butler would claim ‘sex is the gendering of the body’ and thus a social construct, but if we read it at a metasemantic level, then so are concepts such as homo sapien, atoms, numbers and so on. It is a trivial fact that words gain their meaning in their social practices, but I am more curious why trans people would like to hijack the concept of ‘sex’, then move it away from the plain definition based on biology and accuse those people of being bio-essentialists. Do they say the same thing to people who claim that adults cannot have sex with children because their brains are incapable of giving consent (“age is bio-essentialist!”), or that siblings should not have children (“consanguinity is bio-essentialist!”). Why the attack on sex?
Given what you have just said, are you claiming then that your invocation of chromosomes was intended to convey a moral fact? If so, what moral fact? That physiological characteristics and social categories should “match” chromosomes in a particular way? What is that, if not just more gender, the very thing that ostensibly has no significance and which gender-critical commenters claim “not [to] believe in”?
As to your question of “why the attack on sex?,” precisely because “sex,” in “GC” usage, is largely a teleological-normative concept intended to inveigh on certain forms of life. It’s not a particularly useful conception for scientific work, but that isn’t its purpose anyway; its purpose is largely to give scientific-sounding legitimacy to a biopolitical project. Naturally, examining that project will lead to analysing their conception (conceptions, really, as they tend to move between several) of sex.
My previous reply mysteriously did not go through, so here is the reply. Chromosomes matter because they determine how genes are expressed and therefore our physiological characteristics (genitals, bone structures, reproductive functions, puberties you go through, etc.), which are all morally significant in a way similar to why consanguinity is morally significant in determining marriage laws. Also, you seem to make the huge assumption that I am committed to the view that gender precedes sex. I’m not Judith Butler, so it does not. There is no such social category to start with, and sex is a biological category with moral significance (I’m also not Sally Haslanger, thankfully). I don’t see any point in suggesting that making biology relevant becomes ‘more gender’, as there is no such thing as gender apart from being a social kind.
There is indeed a normative component in GC’s usage of sex, but that is because it is drawn from the significance of sex as a biological category, the way I suggested above. And you seem to be digging your own grave here: if you think the emphasis on sex is to give scientific-sounding legitimacy to a biopolitical project, what about your emphasis on HRT? Is it not also a biopolitical project to allow men to invade women’s sports? And by suggesting HRT matters, you seem to suggest that trans identity is no longer subjective but a biological thing, and for that reason, you have excluded those who have only socially transitioned. Also, most sporting events where male athletes have participated in women’s sports did not conduct any kind of test for HRT and merely relied on self-report. Do you detect any kind of ‘bio-essentialism’ in your argument? (To clarify, I do not think HRT carries any moral significance in sex classification in sport).
That doesn’t really answer my question here because chromosomes don’t, on their own, determine any of those things you mentioned and how those things actually unfold in development need not “match” a particular chromosomal configuration. Your argument then would have to be that they ought to match that configuration; that developmental trajectories that deviate from it are, in some morally significant sense, lesser, and ought to be “fixed” so that they are brought into conformity with the “design” or “plan” for what they’re “supposed to be.”
That of course leads on to the biopolitical project mentioned earlier. It’s biopolitical precisely because it sees the existence of such bodies as a sign of societal brokenness, framed through the lens of gender.
The rest of your comment is difficult to parse, containing many ideas but none fully fleshed out. So I’m not sure how to go about addressing them. However, it looks like some of the points you’ve raised have been discussed in some detail in Maung’s paper here.
Actually, maybe I can tease apart a few of the ideas here and sketch out something resembling an answer to them.
Its significance there is with regard to reproduction, no? I don’t think GC commentators would be willing to restrict their usage of sex to only those circumstances relevant to reproduction or species propagation. That usage is far too narrow to accomplish the sorts of things they want to invoke sex for. As Queer Philosopher mentioned elsewhere in this thread, “Nothing really necessitates that we sort people into capacity-groups based on their reproductive capacities.” The only way the “GC” argument even gets off the ground here is if we are talking about more than just reproductive capacity or functioning; that is, if the categories are derived by invoking a larger conception of sex than one tethered solely to, say, gamete production.
But with that larger conception comes a trade-off; the categories become less straightforward, less convincingly “immutable.” Hence the need for the biopolitical project; to make them stay that way.
No.
You’re making assumptions about my views that go well beyond anything I’ve actually written here.
Okay. I guess I’ll take your word for it lol
This is a “And yet you participate in society—curious!” type of argument.
Thank you for not engaging with my critique of your position. If you think chromosomes is a biopolitical project then I can’t see why HRT is *not* a biopolitical project. You seem to have adopted the term from Amery’s recent paper, which traces all the way back to Foucault, where he states that ‘numerous and diverse techniques for achieving the subjugation of bodies and the control of populations’ (1978, p.140). And in that precise sense the emphasis on HRT is doing the same job, where taking HRT becomes a biopolitical project that dictates the role of hormones on classifying sex, which unjustly excludes people born with high prenatal opposite-sex hormones or simple irregularities. Of course, I find the biopolitical critique completely meaningless (biology is suddenly normative when it comes to exclude trans people from the opposite sex category? That’s quite telling.), but if you wish to stick to the critique then come and have a taste of your own soup. Plus, sports are full of classifications — weight, age, and so on. Maybe go and accuse them of conducting biopolitical projects as well (fat-shaming and ageism)?
I didn’t say that “chromosomes is a biopolitical project.” You can’t meaningfully critique my position by misrepresenting it like so.
This, again, goes well beyond anything I’ve actually written here. How does it exclude them? If they require access to such interventions, I would indeed want them to receive such interventions! No part of anything I’ve written here implies the view that only trans people should be allowed to receive such interventions. I have no idea how you even came to such a conclusion but it’s not based on anything I’ve written.
This is another conclusion that doesn’t follow from anything I’ve said here. No, the normative aspects aren’t solely evident in the case of how GC commenters treat trans people. Such elements are also evident in how intersex people are often mistreated, and in how sexual and gender minorities have often been pathologized broadly.
I don’t think there’s anything to be gained from further discussion with you, so I won’t be replying to you further. You’ve mentioned that you’re no Butler, no Haslanger. True enough. You’re also no Wittgenstein.
““sex,” in “GC” usage, is largely a teleological-normative concept… It’s not a particularly useful conception for scientific work.”
This captures a major point of difference between the two sides of the debate. Isn’t it the case that everything in biology is “teleological-normative” in the sense that biological concepts are functional concepts; and functional concepts are those with inherent goals or purposes (e.g. a heart is an organ that pumps blood). Some philosophers of biology use the term “teleonomical” to naturalize the concept and avoid Aristotelian and Thomistic baggage; the goals/purposes emerge from natural selection. Nonetheless, it’s very difficult to make sense of contemporary biology without functional-talk. So a functional definition of sex, as in GC usage, is not at all ignoring “actual objective materialities” as you say below. It is, however, avoiding a reductionism that makes biology obsolete. There’s more to the world than fermions and bosons!
I don’t think that sort of disagreement is necessarily intrinsic to either “side.” One might reject the picture of biology being proffered here. Maung appears to do so in this paper, for instance (see pp. 41–42 in particular). Or one might accept a teleological account, but modified to make it trans-inclusive, as ergo does here. (To be clear, I don’t think ergo is committed to that account; they present it with a view to arguing that, as they put it, such an account requires a conception of the person’s good to be made sense of). So it doesn’t seem to me that the “divide” can be cleanly cut along teleological-normative and materialist lines. For one thing, many GC commentators would strongly deny that they’re endorsing a view that’s teleological-normative in the first place.
One important caveat here is that it’s difficult to say because “GC usage” isn’t one thing; different commentators present different definitions. Sometimes the same commentator will present different definitions! I don’t think that’s necessarily a problem, but that’s because I don’t think we’re talking univocally here anyway. But many GC commentators will insist that we are; that there is one definition and it’s such and such. Depending on the definition given, different things will follow. And I suppose that’s why there is no actual consistent “GC usage” to be had, and possibly why the amicus brief does not attempt to give us a definition to work with, assuming that one of the many within the ambit of “GC usage” will do for its purposes.
I think this argument confuses conformity with resistance. If HRT is used to make the body approximate feminine traits (fat distribution, muscle mass, skin softness) the logic is still “to be a woman I must look like this.” That does not undermine essentialism; it reproduces it by making womanhood depend on matching gender norms. Being male does not depend on how well one embodies masculinity; it is simply about being male. Likewise, being a woman is about being female, not about conformity to femininity. This is precisely what grounds feminism: women are women whether or not they fit feminine norms.
The appeal to biomarkers does not change this. Hormones can shift traits like fat or skin, but they do not alter sex, no more than dyeing your hair alters your ancestry. These are contingent variations on top of the ontological ground of sex, which is the body’s organization around reproduction: large gametes in females, small gametes in males. That reality is not undone by medical interventions. Your argument appeals to the effects of HRT as if changes in biomarkers could validate womanhood. But this does not escape essentialism. It substitutes gender-norm essentialism for biological essentialism. Far from undermining the binary, it reinforces it.
I’m pretty sure my ancestry involves males and females, though I don’t know about you. It does seem bizarre though to say that dyeing your hair doesn’t change your hair, which would be the equivalent of the “GC” claim here—that your are still “organized around” producing a certain type of hair and that we ought to ignore the actual material reality to consider primarily what you “ought to be” producing. That this teleological and normative conception requires us to ignore actual objective materialities is pretty much in keeping with Passerby’s point about bio-essentialism—anyone deviating from the “plan” or “design” of the “organization” threatens it.
I also think there’s a level of cheek here that is simply never acknowledged by “GC” commenters. Because they will say that that’s not really changing sex because sex is this perfect plan for the design of bodies, for how they are supposed to be “organized.” Tampering with that “organization” does nothing!, they say. Okay, but we still can do that, can’t we? There’s no requirement that we stick to the plan? If you want to define sex as this mystical essence, so be it. It largely ceases to be relevant for any of the discussions we’re having here, where the actual objective materialities are much more pertinent than some ideal design you’ve imagined for how our bodies are “supposed” to be. And it just so happens that the way they’re “supposed” to be is strictly binary. Funny that!
Natural Law isn’t natural and it doesn’t make good law either. In re: sports The latest and best science does not support the idea that trans women have an unfair advantage. If you have not seen it, pls. consider this study from The British Journal of Sports Medicine published in 2024. https://bjsm.bmj.com/content/58/11/586 . It shows that by most metrics trans women have no advantage and by some metrics–jumping height relative to body weight, VO2 transfer–they have significant disadvantages. The way forward is reasonable HRT requirements, not blanket bans. Riley Gains and all the members of the Sore Losers’ Movement needed to work harder to win, not vilify their opponents.
This will definitely help… Oh wait. Wait.
The brief appeals neither to Natural Law nor naturalness in the sense relevant to that tradition. Instead, it appeals to the notion of naturalness familiar from contemporary analytic metaphysics (and its historical predecessors–but more like Plato and less like Aquinas). I say this for clarification, without comment on the argument of the brief itself or the relevance of your BJSM citation.
Your link to the BJSM doesn’t seem to work: “Page not found”???
https://bjsm.bmj.com/content/58/11/586
Except the study you’re linking to has been roundly criticized for comparing the athletic ability of sedentary/overweight “trans-identifying” males (“trans women”) with athletic females.
It’s notable that studies aren’t necessary to prove that “trans-identifying” females (“trans men”) don’t have an advantage over males.
To the casual reader: a reminder that gender-critical feminists came up with the terms “trans-identifying males” and “trans-identifying females” to hide insulting acronyms in their ostensibly clinical language.
TIM (a common man’s name) to refer to trans women, and TIF (like Tiffany, a common woman’s name) to refer to trans men.
I’ll note that you didn’t address the specifics of my comment. One cannot draw conclusions about advantage or lack of advantage from comparing unfit members of one group to fit members of another group.
To the casual reader: The medical profession, until the mid-1990s, used the term ‘transsexual males’ for today’s ‘trans women’. Once the idea took hold that being transgender is not a mental health issue, the terms ‘trans woman/transwoman’ and ‘trans
man/transman’ superseded the medical terms. In effect, the labels were switched. See here: https://books.google.com/ngrams/graph?content=transwoman&year_start=1800&year_end=2022&corpus=en&smoothing=3
Yes, the study is riddled with obvious methodological flaws that make the reported results meaningless and raise serious questions about the peer-review process that led to its publication – https://shura.shu.ac.uk/35717/1/Kirk%20et%20al%202025%20Comment%20on%20Alvares%20et%20al%202025%202ND%20VERSION.pdf
Of course it isn’t understood in that way. Because that would immediately reveal the absurdity, wouldn’t it? They know that if they defined it in that way they’d immediately have to engage in special pleading, because then the categories would not work as they want them to. So they have to say that it’s all of these things, somehow, even if you don’t have all of these things, because you should have them. Should have them? Oh how interesting… all of a sudden we’re no longer in the realm of “theoretical science” after all.
They should have consulted the Lancet’s new guidelines here. There’s also literature that could be cited here, but it sure as heck doesn’t say what they want it to say so I guess we gotta pretend that “theoretical science” is uniformly saying what it isn’t.
The “problem” of organizing sport has always seemed to me to have such an obvious answer, namely, organizing leagues entirely around ability regardless of sex (e.g. ‘elite’ and ‘non-elite’) that I hope someone here in the comments can explain why it’s not.
Many sports are organized by ability levels, especially for kids. My children and I regularly compete in Brazillian Jiu Jitsu tournaments, where it’s standard to separate competitors by belt level, or in no-gi jiu jitsu (where you don’t wear belts), to distinguish people as novice, intermediate, and advanced.
Is that an acceptable substitute for sex divisions? Pre-puberty, I think the answer is “yes”, and for what it’s worth, jiu jitsu tournaments–at least at the local level where we do them–tend to be pretty relaxed about sex categories in the youth divisions. My 8-year-old boy competed against a girl in his last tournament, and they had a perfectly competitive match.
But as you get to higher skill levels, and as you get past puberty, this strategy runs into a bunch of problems. First, even when you’re still dealing with not-super-serious competition (like we do), “novice” men will give “intermediate” women a pretty hard time. If you want a reasonably quick, reasonably easy way of dividing people into divisions in ways that will tend to make for competitive matches, sex is certainly up there with weight and belt level. Granted, maybe the legal issues in the brief don’t really come up at the low level I’m talking about; I’m sure the kinds of little local tournaments I’m discussing don’t do any sex testing; they don’t have the infrastructure.
But as we get into more serious, higher-level league based competition, where people are organizing their lives around sports–and testing (not just for sex, but for drugs) is feasible–then the question of how you operationalize ability levels becomes more pressing. Operationalizing weight is really easy; people just step on a scale. But at least in jiu jitsu, at the highest levels, everyone is a black belt. So how do you divide the black belts into ability groups? Correct me if I’m wrong, but while lots of olympic sports have weight divisions, and sex divisions, none of them have ability divisions; people are already presumed to be among the world’s elite. Also, if there is any fame or money associated with winning at anything but the top level, then there are problems of perverse incentives or “sandbagging” with people trying to get themselves classified as a lower level than they really are. Chess has mechanisms to deal with this–once your ELO has been above n*(100), it can never drop below (n-2)*(100)–but it’s generally a real problem whenever you try to match people by ability, and my guess is that it would become a lot worse if we tried to use ability divisions as a replacement for sex divisions across the board.
So you face a dilemma–either there’s no fame or money associated with wining at anything but the top level, so you don’t face perverse incentives problems, but de facto women never end up at the top levels of sports. If you think the creation of women’s divisions in the first place was a good thing, as a way of encouraging women and girls to participate in sports, then this seems like a step back. Or alternatively, there is fame and money associated with winning in lower divisions, but now the perverse incentives and operationalization problems are really really pressing.
Luckily for us, I am sure that many of those submitting this brief are not also advocating to restrict access to puberty blocking medication, hormone therapy, or other interventions that could meaningfully address this complaint.
On a more serious note, I think it’s fairly clear that concerns regarding fairness are hardly the driving force here. The differences that arise are contingent on processes that can be altered, but which many of the commentators submitting this brief insist must not be altered. Why? To preserve the very categories they are arguing for. That’s it. That’s all this is and ever was. We shouldn’t put the cart before the horse here.
Did you just concede that individuals who have undergone male puberty shouldn’t compete in female divisions?
I am sure that those submitting this brief would be entirely happy to support access to the sort of pharmaco-therapeutic interventions that would alleviate this concern of theirs. I am sure of it. They are famously consistent and wouldn’t dream of denying people access to the very thing needed to alleviate the purported concern this raises. They are definitely raising it in good faith.
Instead of continuing to cast ad hominems, could you answer the question?
“You have to undergo such and such processes. We will make you undergo these processes, even if it is detrimental to your health and wellbeing and will have consequences for you in the future.”
“Oh boo! Now you can’t compete; it wouldn’t be fair because you underwent such and such processes.”
“Interventions to mitigate that? To mitigate the harm we caused by insisting that you have to undergo such and such processes? Ha! No, we will deny you access to that too. Now you have to continue living the way we insisted you have to.”
I was responding to someone who advocated replacing sex divisions with ability divisions. I was explaining why I thought that was a bad idea.
As a response to my comment–which was a response to that comment–yours is a non sequitur.
In the context of the post overall though, it isn’t, is it? Because many of the commentators who have signed on to this brief would also hold that access to those sorts of interventions ought to be banned. Perhaps you wouldn’t. But I think raising puberty as a reason invites comment on how that might well be addressed. And how, even if it were addressed, it would make no difference to what these commentators want to see vis-à-vis banning transgender athletes. That’s germane to how we ought to regard the brief overall; not as a measure intended to ensure fairness in sports. Quite the contrary.
I think it makes sense to separate out different lines of response to the brief:
Those are two very different positions. This thread was about 1. It sounds like you aren’t interested in discussing it, and want to talk about 2 instead. Fine, but nothing I said in my original comment engages with 2. (Though of course the brief does.)
I wouldn’t mind seeing de facto women never ending up at the top level of sport, save for the fear that this would discourage women and girls from engaging in healthy activity. A key question, then, to which I don’t know the answer, is whether trans women are less likely to inspire women and girls in general to exercise.
Just to be clear, are you saying that you would not mind if all women’s professional sports leagues were shut down, and the female categories for NCAA and Olympic sports were eliminated?
That seems surprising, and extreme, so It would be useful to clarify.
I’m saying that as long as doing so doesn’t discourage woman and girls from engaging in healthful activity, I don’t mind if all women’s professional sports leagues were shut down and female categories eliminated. If it is encouraging women and girls to engage in healthy activity, then that’s trickier.
Don’t you think the existence of highly competitive sports only for females at the collegiate, professional and Olympic level very likely *does* encourage female “healthy activity,” both at those levels and at the less competitive levels? Certainly, it seems more likely that such sex-segregation encourages females more than would ability-only stratification or gender-identity stratification, given the obvious biological facts.
That’s plausible but I don’t know, and I don’t know what difference it makes if a competitor is trans.
I’m saying that unless they motivate women and girls to engage in healthy activity, I would not mind if all women’s professional sports leagues were shut down, and the female categories for NCAA and Olympic sports were eliminated. If they do motivate women and girls to engage in healthy activity, that’s trickier.
Now make the same argument for para sport and age categories.
Because the logic which supports the women’s categories is what supports those too.
Absolutely. If such categories inspire enough people to engage in healthy activity, then they are important. Otherwise, they don’t look very important.
The problem is sport-specific. Track and field/swimming have easy ways to measure and divide ability.
Besides, isn’t evaluation just a problem with fighting sports when there isn’t a knockout? I am not familiar but I do hear in the sports news it is hard to even assess winners. So predicting/assessing overall ‘fighting’ ability seems more difficult than assessing whether someone ran/swam a time or not.
You could certainly have ability grouping in track and field and swimming (and weightlifting, and other individual sports where performance can be precisely quantified), where people are grouped by their best past times. I think that would lead to the sort of scenario imagined in various of the comments, where you have no women at the highest levels, and at the not-highest levels you have the best women competing against and losing to men who are far from the best. I’d expect the less than top divisions would be dominated by quickly improving teenage boys whose best official past times dont reflect their current abilities. My guess is that would be a scenario where fewer women and girls decide to go into track and field.
And importantly, in grouping by ability competition, most trans women would be mediocre. I don’t know if people realize that this kind of inclusion would allow very few trans women to ever win competitions.
That is okay that some competitive categories will be extensionally equivalent, at least they are defined by ability relevant to the sport and not arbitrary-seeming characteristics like sex/gender.
Maybe you are saying sex/gender is more relevant in dividing combat sports – but the reasoning points to unfair bodily advantages that make up for lack of skill. If you had competitions with body-index + ability (weight class like wrestling + belt?), would that alleviate those worries?
Anecdotally, I don’t think this would lead to less people in track and field because it is standard, as I see it. I ran in high school and college and coach a bit. Teams practice together in high school and often in college.
Besides the most competitive meets, the top women will run in men’s heats. This is especially true if there is a gulf in women’s competition.
Most road races have ‘rabbits’ who set a pace and people are happy to compete with people searching for similar PRs. This is a very popular feature of road races and draws a lot of people.
But I don’t think they would be extensionally equivalent; hence my point about teenage boys. Those women running in men’s heats might still be hoping to win women’s divisoons at other races with a deeper competitive pool. That’s not a possibility in a world where there are no women’s divisions.
Though I do think the issues are worse in combat sports; even at a given weight class, men have substantial physical advantages. You can look up records in weight lifting and you’ll see that women’s records in a given weight class will be comparable to men’s records many way classes below. Of course combat sports aren’t *only* about strength, but they are in part about strength.
If you are really asking, please consider that this would effectively mean an end to elite female athletes. Even players as exceptional as Serena and Venus Williams cannot complete at the tippy-top levels with men. Women could play sports, but they would have to do so knowing that their physical limitations, in terms of size, strength, and speed, would render them B-level or worse players, no matter how good they are or how hard they worked.
Moreover, please also consider that in contact sports, men who suck at sports can also easily injure women who are very agile and athletic, simply because of superior strength and body mass. Imagine a 6’2, 220 pound athletic build, but clumsy male in fouling a 120 pound female in a basketball or soccer game. Women’s bodies generally can’t withstand that kind of force without serious injury, due to lower muscle mass.Obviously there are differences in size and strength among women, but they pale in comparison to the differences between men and women. Women would have to risk serious injury to play sports if they were not sex-segregated.
But if the reasons for applying this method of categorizing are to achieve a social aim (the inclusion of women in sports), then why is “include trans people in sports” an unworthy social aim?
If the reason for applying this method of categorization were merely competitive fairness (as is often argued), then the fact (if it is one) that categorizing according to Elo rating (or whatever) would result in the end of elite female athletes is neither here nor there.
“Imagine a 6’2, 220 pound athletic build, but clumsy male in fouling a 120 pound female in a basketball or soccer game.”
I’m not wise enough to call myself the Big Aristotle, nor am I sure of the Answer. But:
https://www.youtube.com/watch?v=a7uwM1wt2Jg
Why does this hypothetical man who sucks at sports have an athletic build? Why are we assuming he has “superior” strength? This thought experiment is muddled. If he sucks at sports perhaps he is merely large but not athletic? In this case, I don’t have to imagine the scenario, having actually witnessed it many times. In this scenario the 120 lb agile, athletic woman runs circles around him and does not get hurt. In the scenario where 2 athletic people are playing a sport and one is twice the weight of the other, then the smaller one might be at a disadvantage, regardless of gender, depending on the sport. It might also be fine, depending on the sport. Where size differences are a big deal, there tend to be weight categories, or mostly people with particular body types end up playing at the highest levels. Small men are also at a disadvantage in basketball (but not gymnastics). Life isn’t fair. Sometimes we play the sports we are built for. Sometimes we play sports we aren’t built for because we like them. Sometimes we lose at sports. This is fine.
I have actually been injured in such a scenario, in a pick up game. I am (well, was at the time) very athletic. A 200 pound muscular dude falling into me was a massive amount of force and I was completely slammed against the ground. I was better than him, but then he (unintentionally) REALLY hurt me. I was a three-sport athlete, played lots of contact sports and am no stranger to collisions, but this was completely unlike anything I had ever experienced. Athletes (good ones!) get injured all the time. You don’t have to be bad at sports to be taken down and injured badly by an opponent, especially one who has bad body control. Have you *actually* played sports? Watched sports?
My adolescent brother did the same thing once–play fighting, but badly broke my bone because he didn’t know his own strength (my own weakness?). I don’t know if you are male or female, but as an average-sized female, I can say with confidence that 95% of men could absolutely destroy me if they decided to. They are larger, bigger bones, more muscle, solid, almost as a rule. This is part of the reason violence against women is such a problem.
I can’t believe I have to say this …. Doesn’t everyone know this?
Research from World Rugby:
“Biomechanical modelling studies suggest that typical male players experience and create Head & neck forces 20% to 30% greater in men’s elite rugby than in women’s elite rugby as a result of mass differences alone. Scrum forces in men’s elite rugby and community rugby range from 40% to 120% higher than in women’s rugby.”
And then here is always the ‘matched for size’ myth circulating. Kataoka et al (2023): “ResultsOverall, 76%–88% of the strength assessments were greater in males than females with pair-matched muscle thickness, regardless of contraction types (i.e., isotonic, isometric, isokinetic). Additionally, males in the lightest weight division in the IPF largely outperformed females in heavier weight divisions.
ConclusionsOur results would suggest that segregation based on muscle mass or surrogates of muscle mass (e.g., lean body mass) might not be an appropriate classification to create fair competition within strength sports. This is not to refute the concept of the desegregation of the two-sex binary category but to present data that raises important concerns about the potential sex-based differences in strength performance.”
A scrum is not a great example, since 16 players are involved, most tightly bound to one another and pushing against the other team. The forces involved are not really due to the individuals. There’s nothing like a scrum in any other team sport I can think of. Given the average size of male vs. female rugby forwards, it’s no surprise that the forces are so much higher.
But also, rugby body types are quite variable across the team, depending on position. The wing looks nothing like a prop, and can often be quite small (what matters there is speed and agility, whereas props mainly need to be huge and strong).
(I was a moderately successful rugby player. )
I should add that it’s quite common for older teens to play for a city’s men’s club. You might be big for a 16 year-old, but not usually compared to the 25+ men. You can still play rugby, still tackle the juggernauts and be tackled by tthem, etc. It’s safe enough. (Though you probably won’t be a prop.)
I will also add one last thing, which is that scrum safety is primarily about form and technique.Because of how you’re bound, you’re not really subject to those forces in any threatening way unless the scrum collapses.
Sorry, you don’t actually play sports. Only that other person does.
You are right to point out these sex differences, which I think only those with some experience in competitive physical activities such as sports or martial arts may fully appreciate. But you may underestimate the extent to which transition changes the body, especially when it is undertaken at younger ages. (Here’s a good comment.)
The practical, material effects of physical sex transition are often overlooked or intentionally disregarded by both sides in this debate.
Briefly, if you organize sports into elite and non-elite categories without regard to sex, there will be no females in the elite category for almost every sport. (Potential exceptions would be things like equestrian and shooting sports, and possibly some sports with aesthetic/artistic components.) Using track and field as an example that provides objective comparisons, in any given year, there would be no female athletes who would be able to crack the top 500 worldwide in any given event.
Many people do not understand that the use of “elite” to describe current female athletes is predicated on the existence of a protected female category.
Ability measured by what? Just for contact fighting sports – A male weighting 90 kg is going to punch way harder (as in – life threatening harder) than a female weighting 90 kg. And this has nothing to do with T levels, and everything to do with muscle mass, bone and join density, size of hands, etc…
And as some others have pointed out, a sex-based division of leagues is already a de facto “physical capacity” division.
That is right, Stan. Here is a nice summary of research done by World Rugby: https://resources.world.rugby/worldrugby/document/2020/10/09/a67e3cc3-7dea-4f1e-b523-2cba1073729d/Transgender-Research_Summary-of-data_ENGLISH-09.10.2020.pdf
RFU reasearch: Taking cross-sex hormones results in a small performance loss (Rugby Football Union, 2022): ‘The reversal of performance advantages is thus only one-fifth of the initial advantage, which leaves a significant remaining advantage, particularly for attributes of strength and mass.’ But let’s keep in mind that many trans women do not opt for any medical interventions – and rightly so, because of the health implications.
It’s interesting how anti-trans writers want to have their cake and eat it too. On the one hand, these interventions are to be advised against, banned even, because their effects result in the weakening of certain attributes; on the other, even having had such interventions, trans folk are still Antifa super-soldiers, apparently capable of cracking your skull just by glancing in your direction. The enemy is both weak and strong, and the general consensus must keep them that way: Pitiful specimens, weaklings; and monstrous Goliaths, all at once.
Take average male athlete. Give intervention. Male athlete now weaker. Still too strong to compete with average woman athlete.
I don’t buy this. But it’s closer to what they actually say. And it’s not having and eating one’s cake.
I think the obvious answer is that policies should be left up to local sports leagues and officials. They are in the best position to determine whether the trans status of an athlete might lead to an unfair advantage or not. I don’t think sports organizations were really having that many issues organizing themselves until politicians got involved.
This is an important point.
These issues had been mostly resolved. The Olympics had a good, reasonable standard. The NCAA had a less strict standard. And youth sports had the least strict standard (which makes sense to me that inclusiveness should be the dispositive good when it involves kids’ sports).
This didn’t become an issue that needed a “solution” until right-wing forces proactively decided to use it as a culture war issue. We have seen this with their treatment of abortion starting a half century ago and then with their focus on gay marriage (especially in 2004). Now that those issues do not poll well for them anymore, they have found a new social issue to make a culture war out of.
The number of philosophers and other academics who have gotten taken hook, line, and sinker by this clearly bad-faith right-wing political move is honestly embarrassing.
In the context of this lawsuit, though, if that’s right then the court should rule in favor of the states who want to set policy for sports teams. The case against them doing so is (as I understand it) that it is constitutionally impermissible for those states to do so. But if so, it’s probably constitutionally impermissible for the local sports leagues and officials to do it too.
So if in fact the local leagues and officials *should* do it, the states’ decision to preempt them might be wrong, but the court would treat that as something to sort out inside democratic governance, not something to resolve legally. If someone should be setting policy but the state of Idaho has chosen the wrong someone, that’s not the court’s problem, it’s the Idaho electorate’s problem.
Happy to be corrected if this misunderstands the law – but I’ve felt that a lot of the discussion of the actual supreme court case elides ‘this is bad policy’ and ‘this is constitutionally impermissible policy’.
I am a (former) lawyer but have not read or followed these cases, so I’ll just riff on the basics of constitutional law here…
I do think you are roughly correct, but there still could be an Equal Protection violation if local (public) sports officials intentionally exclude someone simply because they are transgender, without any further rationale. A blunt “no trans girls” policy could be unconstitutionally discriminatory, as it may lack a rational basis (as the court in Romer held the anti-gay legislation there lacked a rational basis and so violated Equal Protection–that’s the case where Justice Kennedy famously remarks that the legislation seemed motivated by “animus”). Whereas a “no trans girls may participate in [specific sport, ages, etc.] who have not met the following criteria [hormone therapy for at least a year, etc.]” may not be discriminatory, depending on the criteria. So if local sports officials at various levels following rational rules set out by governing bodies such as the NCAA exercise their judgment to make rational decisions on these matters, then that likely would not violate Equal Protection. But if they just impose a blanket ban, then that could (and to my mind, should) violate it.
That being said, Rational Basis review is almost always a loser. But since this court has already held that transgender people are not a constitutionally protected class (in Skrmetti, a very bad recent ruling), that’s the only legal argument they have in these cases.
Regardless, I cannot imagine this highly politicized, activist conservative court ruling to protect transgender parties in cases like these. This connects with a larger crisis happening now in the teaching of constitutional law in law schools and in philosophy of law classes, but that’s a different topic. (That is, it appears the “crits” may be right.)
This is very poorly argued. Here are a few notes explaining why I think so.
Thank you for taking the time to write all that.
If you want to write up your critique of the brief more formally and are prepared to publish it under your own name, you are welcome to submit it to The Philosophers’ Magazine.
I second the thought that junior faculty work up this line of argument into an article. But I’d suggest they submit it to a journal with a high reputation, circulation, and run by folks of mixed political alliance (neither left-allied, as some explicitly Feminist Journals, nor right-wing allied, as Philosophers Magazine now is). Philosophers’ Imprint would be a good choice.
Who’ll front them the $50, I wonder? 🙂
Imagine thinking this is a good way to use your time, to leverage your scholarly reputation.
Meanwhile:
https://www.yahoo.com/news/articles/republican-lawmakers-nancy-mace-ronny-224031735.html
https://www.kenklippenstein.com/p/fbi-readies-new-war-on-trans-people
Philosophers live in the world; this is not just a puzzle to be worked on.
Since we are purportedly doing philosophy of science here, let me ask: how is the track record for projects in science that attempt to build human categories by finding natural kinds and carving nature at it’s joints, over the course of history? That’s rhetorical, so let me be more blunt: the track record of such projects is extremely poor from a scientific perspective. From a moral perspective, the track record includes most of the worst human atrocities in history. So, not great.
To put it pedantically, pessimistic induction arguments against this kind of project are very strong.
Sex is a fundamental biological category (esp. in evolutionary theory) and one the importance of which is not grounded in any distinctive concern with human beings.
Based on what? Gametes? Chromosomes? “Whatever”? The brief isn’t clear on which “elements” matter or why they matter.
See my earlier points in my other post about this.
As a trans woman studying philosophy, I am also not fond of the awkward policies and inclusive attempts to shift from sex to gender and create exceptions in otherwise simple sex-based codes to permit my participation in sports, or use of bathrooms, or do whatever else. It’s not pleasant or elegant, but apparently many of you have decided pleasant and elegant rules are correct, and my unwillingness to participate in sport as a man, or participate as a man otherwise in society, is my own problem and a self-imposed exclusion, so you don’t even need to argue for my exclusion being justified.
Transition has changed my physical sex in so many of the ways it is expressed beyond just innate reproductive function, but that innate function is all that matters to the narrowed definition of sex that gender critics who employ this natural kinds argument use (gametes). I am simply an “infertile man”, not a woman.
I don’t know if this is common to the position, but I’ve been told that by this measure of kinds, even if suddenly there was a new gene therapy that turned every cell in my body to XX, and caused me to grow a womb and ovaries, and shrunk my skeleton to whatever is most perfectly average for a woman, I still wouldn’t be categorically a “woman”. I would just be a man who had artificially changed chromosomes, and had artificially grown a womb and ovaries, and a shrunken skeleton; and society would be just as justified in organizing to discriminate me from female spaces.
And still, my social and physical experience in that world would be just as I exist in this one: as a woman.
Not by just by the dimension of experience gender critical feminists dismiss as stereotypes, but by how I am oppressed too. Most of my friends and I are poor, often estranged from our families, exploited as women through prostitution, discriminated as women in the workplace, and raped as women.
The only difference is I would be fertile as a woman in that hypothetical world, and therefore subject to an additional dimension of interest, but still of course, designated as something different, undesirable, and against nature.
I play a competitive sport with other women; a sport I have played since middle school, and even once won a club nationals in. I am not-particularly advantaged on my team, maybe just-slightly above average because of my height and experience. I lost most of my muscle after over 10 years on HRT, and have far more difficultly now building and maintaining muscle compared to most of the women on my team because my testosterone is even lower than theirs. I can weight train and drink protein, and my arms and legs remain sticks. My red blood cell count is also lower than average too, another commonly noted effect of HRT, reducing my cardio capacity even with a larger than average lung size for a woman of my height.
It’s humiliating having to satisfy this “virtue of weakness” imposed onto women’s sport, I think it’s atrocious and sexist, but I know it is demanded of me to satisfy everyone’s “concerns”.
Most teams outside of NCAA in my sport care most about getting enough players on their team for tournaments and having decent competition above anything else. No one cares that I play, they’re just happy to have a good teammate and good competition.
And still I’m constantly voluntarily excluding myself because we use high school and college facilities, so in red states locker room laws or laws applying to state-funded institutions, or any changes in the governing body’s rules can prohibit me from playing. Proposed laws in some states even want to criminally punish trans women who play women’s sport. And I’m constantly scared someone will try to dox me, because apparently even if my team usually loses our bracket, any place above last is stolen.
How anyone can pretend this still a respectful conversation on philosophy of science, and not transparent participation in the discrimination and humiliation of a powerless minority group is beyond me. This was a debate that polled as the most controversial and then was elevated to replace Gay Marriage to manufacture consent for discriminating against a new scapegoat. That is all it is.
We are at the point where the right-wing media apparatus and politicians have gone from construing my sisters as “rapist pedophiles” to “violent terrorists”. Where just yesterday the FBI announced that they are discussing labeling “trans-terrorism” as a subset of Nihilistic Violent Extremism. And then an even more specific designation (Trans-ideology Inspired Violent Extremists) was proposed the same day by the Heritage foundation.
I wish things weren’t like this.
Thank you so much for your thoughtful, vulnerable, and powerful share 💚🙏🏼💚
Thank you for sharing this, Justin. Just a couple comments, on process not content:
First, and obviously, no further commitments are to be imputed to the signatories than to the justifiability of organizing sports around the sex categories. This should “go without saying,” but I wanted to make it quite explicit.
Second, even among the small pool of philosophers (fewer than 100) to whom John and I reached out, at least a dozen more—including several of similar stature to those who did join the brief—responded on short notice to say that they agreed or sympathized with its conclusion, but for one reason or another were either unable or unwilling to sign it. In particular, some had reservations about the appeal to naturalness—unsurprisingly, since the brief is philosophically substantive—while others just didn’t have enough time to read it. Yet others honestly explained that they were concerned about social and career blowback. It will, I expect, still be some time before such blowback is no longer a danger. But given the calibre—and the diversity, both political and philosophical—of the brief’s signatories, it should be clear, to the extent it was not already, that the era of gaslighting about the reasonableness of making some at least discriminations on the basis of sex is over. A super-majority of the broader public support separating sports along the line of sex; unsurprisingly, so do many of the world’s best philosophers.
Philosophically substantive? Your “or whatever” on page 21 might suggest otherwise.
This is a bizarre thing to be concerned about. You have an authoritarian government on your side, one that has shown no qualms about attacking scholars who do not agree with its agenda. You agree with its agenda. You are the safest as safe could be. The same cannot be said of the people that government is targeting, with your support.
Quite a few of the commentators signing on have a long history of being involved in anti-trans politics. As for broad public support, one would hope that philosophers take an active stance against disinformation and misinformation, not for it. But if we’re going for RFK Jr.-calibre here, I suppose not.
I have to say, after carefully reading this, that I hope some of the signatories didn’t do so before signing. I would hope their signing on to this low quality work is a result of negligence, rather than an accurate sign of their current philosophical abilities. The work is very poor.
With that said, excellent philosophers of the past have a long track record of poor arguments for positions that support existing power structures. Kant comes to mind as a salient examples.
“You are the safest as safe could be” is a bizarre thing to say to a recent PhD without a permanent position in the discipline. I fully grant that nobody signing this brief should fear retaliation from the federal government. But the federal government doesn’t do the hiring in academic philosophy. Two things can be true at the same time:
I’m inclined to suspect that both 1 and 2 are true, and I lament both of them.
I don’t know, Daniel. If someone argued in favor of segregation on the basis that “Whites” is a natural category but “white or black” is a gerrymandered category due to the disjunction — how lamentable would it be if that person would not find favor with hiring committes.
Not even for moral reasons, but only due to the facileness of the argument and what it reveals about their qualities as a thinker.
I take it this is a response to my *lamenting* that 2 is true, rather than to my claim that it is true.
Rather than respond on the substance–it’s a big and fractious enough question that I’m not confident in my ability to advance the debate in a Daily Nous comment thread–I’ll just note that your reply to me is in pretty serious tension with Felix’s reply to Daniel Kodsi. (Which is no objection to you, or to Felix. But if you two think you agree with each other, then I suppose it is an objection to you two collectively.)
Daniel Kodsi related that some people he asked didn’t sign out of fear of professional consequences. Felix said that was ridiculous–signatories are aligning themselves with an authoritarian government, so they’re safe. I replied that they’re safe *from the government*–whose authoritarian nature I don’t dispute–but that the government doesn’t control academic hiring.
Your reply suggests that–at least if your attitude is common enough–it *is* reasonable for people to be concerned about social and career blowback. And I suspect your attitude is common enough for that concern to be reasonable–it’s a tight job market, and if you’ve got multiple excellent candidates, one or two people on a hiring committee who are dead set against you can be a serious obstacle.
That said, since I do *not* share your attitude, and I continue to lament a state of affairs where academic political speech is chilled on the left and the right, I hereby advertise that if I’m doing any academic hiring, I’m not going to hold signing a brief like this against you, nor would I hold it against you if you signed a brief defending the opposite position.
Thanks for your response. I agree it is a fraught enough topic. But the actual thrust of my question, one that you could perhaps respond to within the confines of the format, was whether you’d draw a line somewhere.
Is there *anything* someone could say in a public political discussion that would make you question their abilities as a philosopher so that it would be justified to let that inform a hiring decision?
I am asking because if there is a line, then we merely disagree about where it is. If there isn’t a line, we have a more substantial (but also more interesting) disagreement.
On the matter you raise: I can’t claim to speak for Felix, but I figure that Daniel K is decreasing his prospects in some ways, but increasing them in others.
I try not to impute intentions to anyone, but it seems to have become a viable career path to make a name for oneself as a right-wing thinker to then get hired at a think tank or at a donor-funded center at some institutions (or become a creature of the media).
In principle I can imagine public contributions that would make me question someone’s abilities as a philosopher, though if the contributions concern a matter on which there’s a lot of political polarization, my standard for how bad (in my judgment) the contribution would have to be goes up a lot. That’s because I thoroughly reject the thesis of the unity of the virtues, and I think people can be very bad at applying their cognitive tools to politics, even while they’re very good at applying them to other topics. Politics tends to bring out the worst in us.
For example, I can think of someone I regard as a brilliant philosopher of science–I won’t name names–whose occasional political contributions on social media strike me as facile, tendentious, and just not very thoughtful. If they were all I had to go on, I would think he was a bad philosopher. But they’re not; I can read his actual writing, and see that it’s fantastic. While I suppose I do sort of see occasional echoes of this person’s approach to politics in his professional philosophical writing–he can be a bit imperious with people with whom he disagrees–I still think he’s brilliant and deserves every accolade he gets.
And of course, there are plenty of historical examples of philosophers we think were excellent, who got some issues very very wrong.
So if somebody does bad philosophy in public, when writing about politics, I just don’t think that says all much about their ability to do an excellent job in their academic writing, at conferences, in the seminar room, etc.
Thanks for this. I respect this as a view and agree to the substance of it.
I do think that that longer political contributions (such a amicus briefs) are more informative than off-the-cuff social media posts. So it seems that we merely disagree on where the line is.
For what it’s worth, I’ve often seen academics even in quite long-form contexts produce disappointingly shallow analyses even when I know that their core work is excellent. (Academic self-governance is the main example.) I was initially very surprised by this but by now I’m used to it – I think what is going on is that applying one’s academic skills to another activity is a choice, is somewhat harder work, and many people don’t make that choice. So I tend to assess these things asymmetrically – if I’ve seen someone being actively philosophically sophisticated in a non-philosophical context that’s a good sign, but I don’t infer anything much from them failing to do so.
(This without prejudice to the specifics of this brief.)
I think your empirical claims are true as they go, but the recommendation to asymmetry does not apply in the case at hand. This is because this amicus brief (and others like it) is (a) explicitly philosophical and (b) drawing heavily on the reputation for clear thought of a few of its signatories.
If someone puts their name (and thereby their authority and reputation, in the case of some signatories here) to a brief like this, this is only meaningful if that reputation is then meaningfully at stake.
You can’t have cake and eat it. Either the authors’s expertise matters here (and then it can also matter negatively), or it does not (and then there is no reason to attend to this brief any more than any old substack post).
And the authors and signatories _very clearly_ want us to go on the first leg of the disjunction.
That might be right; as I said, I was intending to comment on the general question and not on anything specific to this.
That’s fair. But my point is easily generalized.
When someone in a political context makes a facile argument _with explicit or implicit appeal to their academic expertise_, we are entitled to draw negative conclusions about their expertise.
I think “entitled” is probably the right way to put it. If someone stands up in the faculty senate and says “as a philosopher, I can assure you that we need to proceed in way XYZ”, and XYZ is stupid, they can’t complain if you lower your assessment of them as a philosopher! But *epistemically* I think it would probably be a mistake.
It has long been clear that anti-trans commentators are capable of thriving in academia, the media, and government. One could argue that perhaps bigotry should result in professional consequences, but it’s clear that if someone like Trump can occupy high office, all bets are off. The same cannot be said for the targets of anti-trans commentators, who are much more vulnerable and much less visible in academic, media, and government.
The problem here is that 1 and 2 are not equivalent. It is good to be an outspoken critic of authoritarian governments and it is wrong to sign this brief, especially as it furthers the aims of an authoritarian government.
There’s a tendency among some philosophers, particularly in forums such as this, to try to “both sides” the matter, and it always ends up with them arguing (whether they mean to or not) that bigots should suffer no professional consequences for their bigotry, whereas their targets should have to simply weather the consequences. You can see this most clearly with “race science,” which the “both sides” view defends, at the expense of one side (the targets of those holding that view). This perverse approach suits itself to two places: certain academic venues and “debate me bro” culture, and it’s probably no coincidence that both those circles are dominated by people who are less likely to have to face the consequences of the bigotry they are (deliberately or not) defending, but who are damn sure concerned about any whiff of professional consequences for the bigots.
Two thoughts:
1) It’s dialectically odd to say that there are no professional consequences to signing a letter like this, and then, if challenged, respond that there should be professional consequences. (I guess the consistent position is that there should be professional consequences, but – alas – there won’t be.)
2) At the risk of doing exactly the ‘both-sides’-ing you lament, what I think is missing from your analysis is the importance of defending the second-order norms of enquiry in academia. Take abortion as an example (to pick something that isn’t the present issue but is also morally high-stakes). I’m pro-choice; I think being pro-choice is a fairly easy call ethically (at least from a secular starting point), and while I think a great many pro-life advocates are sincere and not motivated by bigotry, I do think there is a current of misogyny flowing through parts of the pro-life movement.
So: suppose a pro-life academic does something to advance the pro-life cause in the US.
Thank you for your thoughts, David. I just want to clarify: I stated that it was arguable whether there should be professional consequences. I didn’t commit to a position saying that there should be, much less take a stance on what those consequences ought to be. I only recognized that one could make such a case. Perhaps it would begin by drawing on the reasons Matthew gave, which is that signing this brief is a political act that renders the signers complicit in the authoritarian project to which this brief contributes. Then again, maybe the consequences there should simply be that the academics who have signed on to it are criticized for that complicity; those sorts of “professional consequences” (criticism) are ones that we’re actually pretty used to, aren’t we? It’s not as though there are ever no consequences to our work, unless our work is truly inconsequential. That being said, there’s a gray area here; I’m not sure whether signing on to this brief can be counted as part of one’s work anyway.
In any case, I am not advocating for any specific consequences for those who signed it, beyond the criticism that signing it warrants. And, in at least partial agreement with your point, I do not claim to be certain of the motives of every person who signed it. I am quite confident of the motives of some of the signers, though, being familiar with their commentary.
Beyond that, I think you may have missed the purpose of me mentioning this at all, which is that concern for “professional consequences” is frequently invoked when it comes to certain speech acts—ones that, despite the criticism they face (a consequence in itself), are nevertheless still tolerated and even, in some cases, elevated, in academia, media, and government. It’s difficult to reconcile this narrative about the purported “professional consequences” these speech acts incur with the reality that they are not only still occurring, despite supposed consequences, but are often amplified, greatly extending their reach.
Just as crucial to my point, however, is that while such speech acts are amplified, often alongside a narrative that they are being suppressed, the voices of those whom such speech is about, who are very likely to be critical of it, are rendered increasingly invisible. And, although I didn’t mention it initially I think it deserves to be spelled out, that process itself has consequences—in particular, consequences for those whose are made invisible by it but who nevertheless have to live by the consequences of a discourse they’ve been pushed out of. They have to, as I put it earlier, “weather the consequences” of decisions made about them but which do not treat them as equal participants in the proceedings that frame and set the decision.
I want to be clear that I am not accusing you, David, of doing this. I’ve found that, in the DN comment section, sometimes people can personalize a reply in a way that isn’t helpful. My replies here are intended as general comments, ones that I know some are likely to disagree with. And I also want to emphasize, again, that I’m not advocating for the signers to face any consequences beyond the ordinary criticism that their act of signing warrants. But I want to draw attention to how the purported fears regarding consequences are much more significant for the people the brief targets than for the signers of the brief—some of whom, due to their “stature” (a virtue Daniel emphasizes) are likely to enjoy institutional protection, especially in an environment where universities are reluctant to do anything that would draw the ire of a government determined to reshape higher education in its image.
Thanks for this. I appreciate the thoughtful response even if I don’t agree with all of it.
I wonder whether some of those commenting here might be talking at cross-purposes. There’s the discussion of academic hiring but also the conversation about the Trump administration’s crackdown on academia. These are arguably separate topics, but there are notable points of intersection.
For one, while you are right that those lending their name to the brief are “safe from the government,” I think it’s worth noting that the reason they’re safe from it, in a way that many of their colleagues aren’t, is because the brief is ultimately in line with the administration’s outlook and serves its desired ends.
For another, although you are correct on the point about academic hiring, various institutions have recently acted in ways seemingly intended to appease the administration, frequently at the expense of their own scholars. If this pattern continues, it’d be reasonable to consider that the subjects of the brief (trans people), rather than the signatories, are more likely to face adverse consequences. If it continues, as it seems likely to, then that would be a reason for professional communities to actively extend care and solidarity to trans folk—a position that may put them at odds, in various respects, with some of the brief’s signatories and even with their own institutions, where such institutions work to appease the administration.
You asked us to imagine a scenario in which “someone argued in favor of segregation on the basis that ‘Whites’ is a natural category but ‘white or black’ is a gerrymandered category due to the disjunction.”
I take it that you are not suggesting that this hypothetical argument is analogous to the argument in the amicus curiae brief, for as you know, the brief clearly states the following:
“This brief contends that organizing sports around the sex categories is fully justified, given the officially uncontested fact that it is justified to organize sports approximately around the sex categories.”
If we took your analogy with racial segregation at face value, it sounds like your view would be that there should be no segregation in sports at all. (Correct me if I’m wrong, but I take your actual view to be that the teams should be segregated by gender identification rather than sex.)
My example was only to elicit a judgment from Daniel G. I posted specific criticism of the brief downthread.
My actual view is that gendered categories in sports are a proxy for something, but a rather poor and arbitrary proxy. Consider that a genetic variation that culturally reads “sexed” (e.g. chromosomal or hormonal) is treated as exclusionary whereas any other genetic variation (e.g. related to height or wing span) is regarded as unproblematic.
That’s arbitrary, and philosophers interested in fairness should be interested in this. But that’s not what’s happening here, is it?
Do you believe that sports should be segregated by gender identification?
Maybe? Sometimes? Depends on what the purpose of segregating is. I don’t see what this has to do with anything I said.
You wrote, “Maybe? Sometimes? Depends on what the purpose of segregating is.” In the cases where your answer is “sometimes?” why do you think segregating sporting events on the basis of gender identification might be justified, given that, as your earlier example of racial segregation suggests, segregation on the basis of race would not be?
I said nothing at all about racial segregation. I said that one particular argument for it would be facile. Even if I believed that racial segregation is justified (I do not), I would reject the argument from naturalness.
You’re a philosopher, you must understand the difference between assessing an argument and assessing its conclusion.
Reasons of naturalness are plainly and obviously unsuitable to justify segregation (so plainly that it makes me think less of the philosophical abilities of those who think otherwise). That this is so is wholly independent of whether some segregations could be justified another way.
Why are you referring to “the argument from naturalness”? Do you think someone is actually making that argument? I thought you had agreed earlier that you do not take the amicus brief to be making that argument.
In the scenario I put to Greco, someone was making this argument. And you responded to this scenario by making all sorts of assumptions, and you still continue to do so. I don’t really know what you want from me.
I wrote my critique of the brief downthread. It is likewise sufficiently poor that I think substantially less of the signatories as philosophers. But if you want to discuss this, you need to stop imputing random things to me.
“My actual view is that gendered categories in sports are a proxy for something, but a rather poor and arbitrary proxy”.
Yes they are a proxy for physical capacity! People who say “we should abolish sex based leagues and institute skill/weight/capacity leagues instead” really don’t get this – sex based leagues already segregate people by capacity. It is really that simple.
Take a statistical distribution of /any/ physical capacity you think is relevant for any sport you want – you will basically almost always have a bimodal distribution, with the first weaker peak being the females and the second strongest peak being the males. So if you want to make leagues based on capacity, then biological sex is in fact an /excellent/ proxy for that.
Yes, but only on the assumption of typical, cisnormative development—something that does not apply in the same way to people who did not undergo typical, cisnormative development or who, by virtue of certain interventions, are no longer in the same ranges.
This may all be so, but shouldn’t we ask whether we can replace that proxy with a more precise description of what it is a proxy for?
We can ask. So here is the question, asked in complete good faith: what easily measurable, widespread, and statistically significant physical characteristic is more predictive of physical capacity other than biological sex? We know T level will not do (see one of the threads above). So what else?
Nothing really necessitates that we sort people into capacity-groups based on their reproductive capacities.
You can try to outline the specific (perhaps sport-specific) physical capacities that sex is a proxy _for_. Maybe it turns out that the vast majority of women go in one category and the vast majority of men go in another. I don’t know what these capacities would be, but this seems something worth studying.
The question of where trans or intersex athletes compete would then be easy: they compete where they meet the physical requirements.
How would that not be an improvement over the status quo? Or even if it is ultimately hopeless, how would that not be worth exploring?
Because of “naturalness”?
This problem (height, wingspan) has been addressed in the sports philosophical literature: https://www.tandfonline.com/doi/full/10.1080/00948705.2023.2167720
I don’t think the author (who is also a signer of the above-mentioned brief) can necessarily be considered representative of “the sports philosophical literature,” particularly as there are those writing in that literature who diverge significantly from his conclusions.
“Addressed in the lit” doesn’t mean “consensus in the lit.”
I tried responding to this but apparently it never appeared.
Just briefly, Pike’s argument is that although we tolerate non-sexed variation (height, wingspan) within sexed categories, we shouldn’t tolerate sexed differences within sexed categories. This is because segregating and tolerating the same dimension is incoherent.
This may be. But it is not my position or argument. My position is that we should try to find a less arbitrary separation than sexed categories.
Trump is not involved in hiring decisions of philosophy departments. And a number of comments of the opposing side, like that of Mark Lance in Insidehigher, do foster a climate of fear.
Bullshit. Trump’s lackeys are passing laws in red states that directly involve them in hiring decisions, in classroom content, in regulating the non-curricular speech of faculty, and Trump himself is explicitly going after high profile schools to try and financially threaten them into *his* having precisely that power.
How do Lance’s comments do this?
Mark Lance has never, to my knowledge, illegally arrested a Georgetown post doc, sent them to Louisiana, and attempted to deport them. So, even at his own institution, he seems significantly less influential than the Trump administration concerning personnel matters.
https://www.washingtonpost.com/education/2025/09/20/conservatives-target-teachers-free-speech/
I’m wondering whether real world legal practice requires natural, projectible properties and kinds that are made quite this precisely. I’m also wondering whether the organization of sports requires that as well. Is it reasonable to expect that sporting organizations carve nature at the joints as precisely as taxonomists?
A lot of this is out of my wheelhouse, but when I’ve read about some legal history in philosophy of law, it seemed like there were lots and lots of hard cases where decisions bottomed out in considered judgment, either because the law didn’t say enough to decide the case, or the black letter law got the intuitively wrong judgment. If we can all admit that (i) legal codes and practices don’t have to be ultra-precise in order to be useful, and (ii) legal judgments grounded in considered judgment don’t render the legal code’s categorizations ad hoc, then it seems like (iii) we can reasonably accept the same conclusion about how sports organizations decide who participates in what.
I don’t think that there’s any reason to suppose that law really needs natural categories, and I don’t think there’s any reason to suppose that there always are natural categories in the area relevant for the law.
What’s relevant is what sort of category does the work that the legislators were aiming for when they wrote the law, and phrased it (possibly poorly) in words.
One of my favorite examples here is that the Supreme Court held back in 1985 that Long Island is not an “island” in the relevant sense for a statute about boundary waters of states and state vs federal jurisdiction.
https://en.wikipedia.org/wiki/United_States_v._Maine
I can’t judge the legal efficacy, but as a work of philosophy this is rather poor. Embarrassingly so, for some of the names on the list.
Three tests for “naturalness” are adumbrated here: (a) that members of a natural category are more similar to each other than to non-members; (b) that a “natural” category does not involve easy-to-vary parameters; (c) that actions based on “natural” categorization are more successful.
Surprisingly little effort is made to show that “sex” (which is not defined) is such a natural category. I presume it is meant that “sex” is defined by something like reproductive type. But it is not at all clear that this fulfills the criteria.
(a) Trans men and trans women are often a lot more similar to cis men and cis women than to members of their assigned sex.
(b) Sex-assignment of intersex people turns on arbitrary parameters.
(c) one is probably more successful in one’s day-to-day actions when one does NOT base interactions with other people on their reproductive type (the utility of reproductive categorization seems to be confined to certain very specific interactions).
On balance, it seems that a trans-inclusive categorization will make more taxonomic sense.
But instead of arguing this (instead of applying the tests they give themselves!), the argument is that the alternative, trans-inclusive definitions will be parametrized or disjunctive (see around page 26).
But that’s a well-known fallacy. In The New Riddle of Induction, Goodman demonstrates that whether some definition looks “gerrymandered” (in that it includes a parameter or a disjunction) depends on the terms with which you start.
So the argument just begs the question in favor of the desired conclusion for “naturalness” by starting with a set of terms that presupposes a particular taxonomy.
There is a pretty good paper by Muhammad Ali Khalidi called “Are sexes natural kinds?” (2017). He’s actually a philosopher of science (unlike any of the 24 signatories). Khalid concludes that sexes in fact are natural kinds, but it is obvious from the argument that this “naturalness” has no consequences for lawmakers or regulators.
Adam Caulton is a philosopher of science if you care to read carefully.
It would be better if there were a philosopher of biology or social kinds. I’m not sure philosophy of physics is as relevant to thinking about sex.
I think it’s already a blessing that we can have at least one philosopher of science from only 21 academics. Afaik, Adam does work on the philosophy of language, so I think the problem of social kinds is relevant here. If you are seeking some philosophers of biology who support gender-critical view, Peter Godfrey-Smith comes to my mind, but given that he is Australian, it is understandable he did not make it to the list.
In addition, there’s the presupposition that “naturalness” has normative force. I take that to be merely controversial within philosophy, not outright fallacious. But this hand is overplayed at least twice here.
The argument of Section 1C seems to be that there is a moral prohibition against making non-natural distinctions. This is defended using a brief novel argument from some toy examples. But this is the subject of much discussion, notably John Rawls argues against it quite strongly.
The argument of Section III turns on lawmaking requiring natural categories. Again this is defended using toy examples. But it is simply false. Any regulation dealing with the natural world will make disjunctive, parametrized distinctions (such as contaminant thresholds in food and water).
Scientists, for the record, usually know that a categorization is “natural” only relative to a particular purpose and has no normative force outside that purpose (witness, e.g., the inner-biological debate on the definition of species).
I could not imagine spending my time or mental energy writing a brief that aligns myself with a wanna-be fascist dictator – a brief in support of a position that’s primary real-world effect (if it has any effect) would be to hurt an already horrifically-marginalized minority group.
And the authors can’t even fall back on the defense that this is a dispassionate pursuit of truth. This is not a journal article or a presentation at a philosophy conference. This is a legal brief attempting to bring real effects into the world.
Just want to heartily second this and thank you for posting it. (Though I suggest that we need to remove the “wanna-be”, unfortunately (or are well on our way to that).)
Thirding this. Filing an amicus brief in support of obvious attempts at bigotry and violence toward trans folks has to be impermissible because of its consequences, no matter what can be said about natural kinds.
Oh look, more cis people having their own little internal discussion about what’s to be done with the transes. Predictably, there isn’t a single trans philosopher on the brief.
Let’s see, we have:
Fundamental misconceptions of what sex even is. The only sense in which sex is binary is as a developmental pathway. And one deviates from a sexed pathway as soon as they begin a medical transition. The immutability view of sex is profoundly false, yet it is a running presupposition in this brief. This is why the gold analogy falls flat.Misconceptions about the relationship between sex and gender: if any of these philosophers had ever actually spoken to a trans person, they would know that these concepts are not as easy to pull apart as cis people (whether ally or antagonist) seem to think. The “identify as” language reveals the disconnect. Trans people don’t speak this way, especially the academics among us.A refusal to actually examine what little science has been done on trans athletes or attend to the important differences in ability that arise when trans children are actually allowed to transition before they undergo a natal puberty.A failure to even consider the possible legitimacy of transness as a condition with its own biological markers. There is literally no advantage a person could possibly gain that permanently disqualifies them from sports except transness. A cis woman can have any feature you like and it’s still considered fair, but let her be trans and suddenly we care about height and grip strength and so on. If we actually thought–as trans philosophers generally agree we should–that trans people are who we say we are, then these questions would not arise for us either.
Well done, philosophers. Well done. It’s not you or your children who will be further marginalized through the legitimization these poorly argued views gain from the support of professional philosophers filing a lawsuit. No, it’s all abstract for you. And when you turn out to be wrong, you can just shrug. Or double down like transphobes usually do.
And don’t @ me looking for a defense of my view. I’m not interested in a bad faith discussion. This comment already provides plenty of specific problems with the argument.
Other trans philosophers have been much more polite in their response to this. But I see nothing valuable here, so I’ll happily take the tone of Reviewer 2. These are trash arguments with an oppressive agenda. That is, they are malicious propaganda. These philosophers need to actually research their topic, rather than proclaim from the armchair. Didn’t we learn already this lesson as a community?
I understand your anger and agree with much of what you say, but I want to single out for rejection your implication that as cis people we have no stake in the issue. I have trans friends and family and that’s why I am still reading posts on this topic. You may well be right that it’s easy, and easier, for a person who has never met a trans person IRL to take the anti-trans position, but for all that their position might be right anyway.
I also agree with you that discussions about minority groups should include members of those groups (“nothing about us without us” is the slogan of an autistic advocacy organization), but I am bothered by the frequent implication on the part of these minority groups that their experiences have the epistemic status of axioms. I don’t doubt that occupying this viewpoint is an epistemic advantage, but it’s one advantage which can be outweighed by others, including credentials which many cis-people have.
At the extreme, you can imagine someone claiming that two cisgender Oxford philosophers (white men, even) should be prohibited from talking about trans issues unless in the presence of a trans arbiter to correct their inferior viewpoints. That claim is absurd, and I do not attribute that claim to you, or to anyone else. But I’d contrast that absurd claim with this one, which I think you might reject:
Cis white men should discuss these issues with the recognition that the interpersonal and objective facts they bring to bear on the issue have to be supplemented with the inside-view these groups offer.
As you point out, some of these discussions are conducted in with the wrong aims in mind–they’re often conducted between conservatives with the implicit aim of doing something with this annoying minority group. But that is a really uncharitable interpretation of the aims of the discussions I am having with my cisgender white male friends. At their best, these discussions are about how best to harmonize a wide range of incompatible perspectives and interests in a way that is respectful and fair to everyone.
I know that everyone here diligently read the comments policy before posting, as our kind host requested. And so I know that everyone read this:
I’m not an expert on decorum, and I do sometimes misread people. But it sure seems to me that there’s a lot of “_they_ are arguing in bad faith” and “how could anyone be so _foolish_?!” in the comments.
These issues are complicated to many of us, especially those of us who don’t think about these issue all the time. And people, including philosophers and including me, are imperfect. Sometimes people make mistakes. Sometimes people make arguments that they will later come to set aside. Sometimes people don’t realize all of the implications of their comments, and sometimes people don’t have all of the information. That’s what it is to have a conversation with people, even good people.
It might feel good to say “My opponents are fools, liars, and almost certainly both!”. But my guess is that it degrades the conversation, it makes it so that only the most partisan and contentious are willing to weigh it, and it pushes those of us trying to read in order to better understand things to close the thread. And the alienation caused by throwing daggers is especially regrettable because, despite my concerns here, there are a number of people in this thread who are really wrestling with things and who have offered comments helping me think through things.
So, as a tepid invitation, could you malicious fools simmer down?
Thank you for this comment, with which I agree.
Once more: here’s the comments policy.
I also love the selective application of criteria of philosophical rigor that is on display here.
People who are politically against the letter are horrified at the poor level of philosophy that this letter shows. But, apart from the fact that the supposed problems with the letter don’t seem that dramatic to me (but hey, I’m not a good philosopher myself), I’m convinced that a letter that supported their political stance would not be examined with a fraction of the criticism that is directed to this.
I’ve read some bits of this brief. I’m not interested in commenting, at least not right now, on the substance of its arguments, but I have a comment on the writing style.
Sup Ct justices and their clerks have a lot to read, and cases like these will probably attract a lot of amicus briefs. Thus the best writing strategy is probably to opt for short-ish sentences wherever possible. There are at least several sentences in this brief that I had to read twice to grasp; they wind around (for lack of a better description). That would be ok if this were, say, a journal article, but it’s not great in an amicus brief, IMO.
However, since this Supreme Court, given its ideological alignment, is likely to uphold the state statutes here anyway, the amicus briefs are probably not going to make much real difference in the end one way or the other.
There is so much sex segregation in the world. And it seems like most (all?) of it has its origins in nothing good, just historical discrimination. And we perpetuate it why, exactly? Mostly out of convention and inertia, or maybe sometimes in lieu of working to eliminate discrimination (e.g. in allocating awards).
When it comes to sports, then, I have to ask: what is the goal, here, and what is the problem it’s trying to solve? How many elite trans athletes are there in the whole of the US, exactly? What’s the worry here, that elite athletes will transition to win more titles and medals? Quite apart from that being clearly BS, AI fail to see why that’s a concern that requires ex segregation at all levels of sport. But also, it’s not a concern worth seriously considering.
Sports are stupid enough as it is, and chock full of performance-enhancing drugs. Let’s just enjoy watching them and leave the lone trans woman or two who might sometimes have the temerity to show up on our television screens alone. FFS.
Most sex segregation is not due to discrimination but from the moral (and I would add evolutionary) necessity to protect women from male violence.
And the debate is not just about elite sports – it concerns sport at all levels. Women competing in high school, local and amateur clubs also deserve a fair chance to win.
Sport is not ‘stupid’. For many people, being the best in their club or local team is a life project and a driving passion, a core part of their social identity. Maybe for you it is not worth seriously considering, but many female amateur athletes could feel angry and discouraged that the best they can hope for is a second place because their league started integrating biological males. In fact examples already abound.
There are more examples of cisgender women facing allegations that they aren’t actually cisgender (because of their high-level performance) than there are of trans women dominating sports. This too would lead to feelings of anger and discouragement, but it seems to be regarded as acceptable collateral damage, if the result is that the few trans athletes that there are, are prevented from competing.
A couple comments:
Stan writes, “many female amateur athletes could feel angry and discouraged that the best they can hope for is a second place.” Sure. If some pro female cyclist with a VO2 max of 75 were to enter the local turkey trot that Sarah had set her heart on winning, she might feel angry and discouraged. Surely Sarah’s emotional response is not sufficient reason to bar the cyclist from running. Anecdotally, it’s certainly not the case that any of the transgender women I’ve competed against (cycling, running) have dominated in the way you suggest they should. Where they’ve been great athletes, they’ve merely made the environment more competitive for everyone else, like any great athlete would.
In any case, it’s impossible to guarantee that on any given day within any category, every competitor will have a chance at winning, no matter how we coarse-grained the set of competitors. It seems to me like there are more and less harmful ways to create divisions, and the harms of coarse-graining by sex assigned at birth are cited throughout this comments section. Why not pursue less harmful approaches that actually suit each sport?
But sex has been shown, repeatedly, to be one of the most reliable ways of increasing or decreasing one’s chance of winning against an opponent, and the asymmetry that exists in sex seems to exist between the vast majority of members of the sexes, and it cannot be overcome by any natural means.
That’s why it is fair to segregate on the basis of sex, and is not fair to segregate on the basis of ”Sarah is upset”.
“… by any natural means.”
Thank goodness for nonnatural means then, hey?
Well, the idea that natural enhancements are permissible in sports, whereas nonnatural aren’t, is behind the universally accepted idea that doping should be prohibited.
Generally, the point of doping is to gain an unfair advantage. The point of the sorts of interventions most relevant here is different, as well as being more likely to reduce or mitigate that.
Interesting. What advantage are these interventions supposed to reduce or mitigate?
Felix said “as well as being more likely to reduce or mitigate that”. This makes it clear that reducing or mitigating advantages is not being claimed as “the point” of these interventions. So your question represents a, I assume perfectly innocent, misreading of Felix’s claim. There was no claim that these interventions are “supposed to” reduce or mitigate any advantages.
But trans women athletes want sex segregation! They wouldn’t compete against (and occasionally outcompete) other women if there weren’t segregated categories. They don’t want to compete with the males and many find nonbinary categories inadequate. No one is saying they shouldn’t participate in competitive sports at all.
No one is saying that gay people can’t get married; they just have to do it on the straight and narrow—emphasis on the straight. No one is saying that marriage should be denied to them; they just have to be in man–woman arrangements.
The argument that they are still, technically, allowed to participate in competitive sports has the same air of disingenuousness about it. It fundamentally misses the point; that their participation in society is being conditioned by heteronormative (in this case, cis-heteronormative) assumptions about their bodies that need not, and often do not, hold. And because they do not hold, concerns about structuring competition for fairness cannot proceed as though do they hold. Because that actually takes us farther away from the goal (fairness), rather than helping us to achieve it.
You missed the point (again). I’m responding to the bizarre implication that there should be no segregation based on sex or gender. My claim is that many trans women athletes specifically want inclusion in the good ole heteronormative category of females, so they won’t be content with the elimination of categories (which would reduce their chances of winning to nil).
What a silly thing to say. Their exclusion from the category is the result of constructing the category along strictly heteronormative lines. It’s not a “heteronormative category” in and of itself.
So please answer these two questions (do not deflect as you always do):
1) what should the categories be?
2) what actual categories do trans women athletes want to compete in?
With regard to (1), that is up to relevant sporting bodies to decide, in consideration of the factors relevant to ensuring competition is fair within a given sport. It is not something that can be decided upon by insisting on categories that can only be justified on assumptions that need not hold to those that they are crudely being applied to. With regard to (2), that depends, as with (1), on the sport, and how sporting bodies have decided to structure competition. You’d hope, given (1), that their decisions on how to structure competition are based principally on considerations having to do with fairness, not on the bare insistence that the categories have to be such and such because [insert the aforementioned assumptions here]. With regard to your “PS,” that wasn’t a claim I made (and I’m not even sure what you mean by “segregation” here), so I have no idea why you’d expect me to defend it.
Define fair.
PPS: See Michel’s OP. Why did you even choose to reply to me first if you didn’t bother to understand what I was responding to?
Because I was addressing (as I had hoped was clear from the reference to marriage equality as an example) this specific claim of yours: “No one is saying they shouldn’t participate in competitive sports at all.”
Trans people in sports want different things, as individuals, but if we’re going to ignore that and treat them like a monolithic category, the thing that most of them want, in my experience, is to have some place to play that is safe and welcoming. That’s it. And that is the thing that is under threat. That’s also the most basic thing that cis women want in sports: not being excluded, or forced to play under conditions that are threatening. (The major threat being not the bodies of cis men, but the attitudes of some of them.)
Sure. But do you think Lia Thomas just wanted to swim or did she also want her medal? My point is that we’ve reached the absurd position that we should get rid of any sex/gender division in the name of inclusion and that flies in the face of what many trans athletes have cherished about their inclusion—namely that they could win against other women.
You wrote, “the thing that most of them want, in my experience, is to have some place to play that is safe and welcoming.”
Why isn’t the obvious solution here to campaign to make men’s sports teams a more safe and welcoming place for all males to play sports?
Exactly. The straightforward solution is to make the male category fully inclusive, perhaps open to all genders, while maintaining a female-only category to preserve fairness and meaningful competition for female athletes. This arrangement maximizes inclusion without sacrificing the very rationale for women’s sport. It is striking that this option is almost never suggested, as if fairness for female athletes were the only principle up for compromise.
That is the goal, Molly: To make it so that all sports categories are constructed with a view to inclusivity, safety, and fairness for competition. Constructing those categories as you insist we have to, on the basis of a definition of sex that is never actually given (in the amicus brief) or which requires special pleading to work in any way that resembles the real world, does not achieve this. In fact, one might argue that it does the opposite: Female athletes are immediately the target for suspicion when their performance exceeds expectations, or they are judged on the basis of their appearance, or they drop-off as all the scrutinizing of them and their bodies adds up.
If the commentators advocating for blanket bans want to convince us that doing so comes from a place of genuine concern for inclusivity, safety, and fairness in competition—rather than the insistence on upholding a gender binary in all areas of life regardless of whether it makes sense to do so or not—then merely saying so won’t be enough. They need to demonstrate their proposed modes of organization meet those ends and can thus be justified on those grounds, rather than assuming that they do or will.
PS: I realize you’re still missing the point. You’re not addressing the claim that we shouldn’t have segregation at all (of whatever form).
That’s not Felix’s claim, it’s mine, as you acknowledge above. I’m not interested in a detailed discussion, so I’m just leaving it on the table: I don’t think sports should be sex-segregated.
But that’s admittedly beside the point. The real question we should be asking is what is the point of sex-segregating sports, and is that goal (1) justified in the first place, and (2) best served by one particularly narrow articulation of sex, and (3) best deployed at all levels of the sport.
As I think is clear, I don’t think the answers to those questions add up to banning trans people from sports.
Go tell trans women medalists that you don’t think they should have won their medals—an implication of refusing sex-segregation—and come back to tell us how ‘beside the point’ they think it was. This is was your supporting them with the position you expressed amounts to. I did not choose those words; you did, ‘as you acknowledge.’ By the way, I did not just acknowledge that this was your point, not Felix’s; I never implied otherwise, Felix just created this confusion.
‘This is what your…’
The binary classification argued for would entail that natal intersex individuals would be excluded from sports, and that’s absurd.
How so?
Intersex means non-binary, and if non-binary is excluded by definition of who should participate in sports as only binary, then then intersex would be excluded. I thought that was obvious.
First, intersex does not mean non-binary under what I believe to be their ordinary uses. In this context, non-binary is typically understood to refer to a range of social gender identities, while intersex is understood to refer to physical differences/disorders in the development of primary or secondary sex characteristics and functions.
Second, the issue in the current disputes around sports participation is whether a given individual qualifies to participate in the protected female category, not whether they can compete at all. Moreover, people with some male intersex conditions, e.g., Complete Androgen Insensitivity Syndrome, are permitted to compete in the female category (at least in track and field, which I know best) even under the recently tightened eligibility criteria.
Most individuals with that diagnosis are registered as female at birth and I believe most go on to develop congruent gender identity. Because the amicus brief never gets to explicating what it means by “biological,” it’s difficult to determine whether it advocates for excluding women who have such a diagnosis or not.
Look my point was that nature does not divide reproduction into clear binary categories that the OP uses in what seems to be biological ways. That’s all the point I made.
Intersex has a surprisingly clear definition. It is just not what you think it is.
https://pubmed.ncbi.nlm.nih.gov/12476264/
It’s also not what Sax thinks it is. At least not according to figures used by the UN.
The fact that the UN cites the bogus Fausto-Sterling number of 1.7% is reason enough to take it seriously.
If certain “hormonal patterns” are reason enough to be intersex, then cancer of the certain glands would cause an intersex condition. Fact is, that is not the case.
The number does not pass the smell test. Would it be true, there would be hundreds of million cases of intersex people. It would be an integral part of the med school curriculum, the public would also know about it.
As Sax points out, Fausto-Sterling got the 1.7% figure by defining “intersex” as any “individual who deviates from the Platonic ideal of physical dimorphism at the chromosomal, genital, gonadal, or hormonal levels.”
Hard to make sense of this, but if that’s the definition, 1.7% seems low.
I’m more inclined to take seriously the views of leading intersex advocacy organizations, the UN, the AMA, and, yes, Fausto-Sterling—who has actual relevant background here—than an opinion piece by a creationist psychologist.
Although, yes, it should be an integral part of the curriculum in many clinical courses, especially medicine. LGBTIQ healthcare in general should be integral.
I feel bad for the clerk that has to read this (highly doubt any Justice will do more than glance at it). Even if someone wants to agree with its conclusions, they not grounded in any legal principles or precedents—let alone any evidence (in the legal sense). The authors also don’t seem to know what dicta is in court opinions. Upshot: you can basically stop reading at the Table of Authorities.
I asked a few colleagues who are former SCOTUS clerks to take a look at the brief. One response I have permission to share: “GTFOH Is this really written by professional philosophers?”
Ok
For those who might be interested, Sheree Bekker and Stephen Mumford have a recent book (Open Play: The Case for Feminist Sport) that touches on many issues that would presumably be relevant here.
The function of anti-trans politics in the US is to facilitate the construction of reactionary power, not to protect women. Providing political support to anti-trans political action by submitting this amicus brief renders one complicit in the right wing authoritarian project sweeping the US (and the UK).
Submitting this brief is not the same as making an argument in a seminar room or publishing a journal article. It is an explicitly political act that can only be properly understood in the context of the role anti-trans politics plays in American society.
What other ‘natural categories’ should the State be involved in enforcing?
Your question is phrased in a biased way. A more neutral phrasing would be: What other ‘natural categories’ should legislatures have the right to base law on?
Here are some such categories for you to consider: life/non-life, human/non-human, juvenile/adult.
Thanks to Daniel Kodsi and John Maier for drafting this excellent brief, which I was happy to sign, and to the other signatories for their willingness to sign.
As Justin noted, many other briefs have been submitted in these cases. I draw your attention to one in particular, that of Reem Alsalem, the UN Special Rapporteur on violence against women and girls, whose brief in particular may be useful to those struggling to understand that the rights of women and girls are worth protecting even when Trump is the president.
https://www.supremecourt.gov/DocketPDF/24/24-38/375351/20250919172807967_Nos.%2024-38%20and%2024-43_Amica%20Brief.pdf
And here is an extremely illuminating recent paper by a well-known sociologist which describes the way “gender identity” came to be broadly institutionally embedded (medicine, education, law, data gathering, etc.) and then a matter of intense controversy, the sports issue being one example.
https://www.theoryandsocialinquiry.org/article/id/18211/
“…whose brief in particular may be useful to those struggling to understand that the rights of women and girls are worth protecting even when Trump is the president.”
What a blatantly uncharitable interpretation of the criticisms offered in this thread.
I don’t think I was uncharitable. Take one of the claims from above: “Providing political support to anti-trans political action by submitting this amicus brief renders one complicit in the right wing authoritarian project sweeping the US (and the UK).”
I interpret this claim to mean that actions intended to promote the interests of women and girls when these conflict with the interests of trans women amount to complicity with right-wing authoritarianism in the US and UK. If true, this would render advocacy of women’s sex-based rights impermissible, at least on the plausible assumption that complicity with authoritarianism is impermissible.
Hence my claim about those “struggling to understand that the rights of women and girls are worth protecting even when Trump is the president.”
One who thinks that this is (functionally, if not intentionally) supporting a right-wing project likely does not think that the rights of women and girls are being meaningfully violated in this case (nor that their interests are being minimised enough to even approach the great harms done to trans persons).
That is where you are being uncharitable. You are making it sound like your opponents are arguing that we should not protect the rights/interests of women and girls, when they are actually saying that their rights/interests are not being meaningfully violated.
And this is why I recommended the Alsalem brief.
Thanks, Moti! The Alsalem brief is helpful, and so is this additional brief:
chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.supremecourt.gov/DocketPDF/24/24-38/375297/20250919152036410_24-38%20and%2024-43%20Amici%20Brief.pdf
What you quote has what seems to me like a clear underlying assumption: this administration’s agenda of violence toward trans folks provides compelling reason to think that even measures that might otherwise appear to protect women and girls do not actually do so (and are not designed to do so). I assume Matthew Smith and Just a Thought share this assumption, as do I.
Let me put it another way: Right-wing reactionaries in the US want to eliminate trans folks from public life. One of their preferred tactics is by creating a panic around women’s sports. So allowing them to create a panic around women’s sports contributes to their goal of eliminating trans folks from public life. This argument is true regardless of any arguments about naturalness. There would have to be extreme evidence of danger to women and girls to overcome this argument, which of course there isn’t.
I am familiar with this narrative, which construes the issue in comforting and familiar terms requiring little reflection, just good guys and bad guys.
I again recommend the two pieces I linked to above, and the Brubaker article in particular. It speaks directly to some of your concerns regarding political exploitation but in less manichean terms, and in a manner far more sensitive to a wide range of relevant facts.
It’s interesting that you chose to single out the amicus brief by Alsalem and not, say, the various briefs submitted by conservative think tanks and lobby groups, like the One Nation Under God Foundation, the United States Conference of Catholic Bishops, the American Principles Project, Eagle Forum, and so on.
Maybe doing so would have complicated your narrative, just a bit, even as it contextualizes your role in proceedings with reference to relevant facts about who else is involved in your project “protecting the rights of women.”
What is your argument here, beyond a blatantly fallacious guilt by association argument?
Suppose that there was a legal case about providing pregnant women with an adequate level of healthcare. I support it with my own arguments and point to someone else’s supporting arguments that I endorse. It would not be a reasonable response for you to point out that various rightwing groups, with broad agendas that you and I may disapprove of, have given similar arguments in support of maternal healthcare. Nor would it be a reasonable response to point out that some of these rightwing groups have supported it with sexist arguments that we would strongly disapprove of such as the argument that the God-given nature of women is to make babies and that is why maternal health should be supported.
My point was just that anti-trans commentators’ narrativizing about their project being “protecting the rights of women” is no more convincing coming from them than it is from the various conservative lobby groups that likewise claim to be “protecting the rights of women,” or even the US Government, which issued executive orders claiming to do the same. We need not buy the narrative. As should be clear from many of the responses here, many of us don’t.
I should add that this narrative has been a consistent feature of organized anti-trans activism for the better part of a decade. And it’s successfully permeated a great deal of media output about trans people.
“Every cause supported by my political opponents is thereby evil, this cause is supported by my political opponents, etc.”, is a very bad argument. You might throw reason out the window when it comes to such things; to demand that others do so as well is pretty rich.
Also, it’s bizarre to call the USCCB a conservative think tank or lobby group.
I don’t follow your attempted reconstruction of my argument, Prof L, but it looks very strawmanny. The comment of mine you are replying to was about the rhetorical choices Moti is making here and the narrative those choices serve.
Contrary to what JTD seems to be implying above, I also don’t think it’s immaterial that these groups have organized using the same sloganeering. And this is also why the analogy to maternal healthcare does not work; many of the briefs filed echo the same transphobic arguments. These aren’t different arguments and “broad agendas”; they are well-rehearsed articulations of the same agenda, endorsed by different organizations and individuals—some of whom, like Moti, are apparently embarrassed by where their collaboration has taken them and who thus find themselves constantly needing to hold up and belabour their purported liberal or feminist credentials, lest people start wondering whether their project is really about what their sloganeering emptily gestures at.
I come back again to the point that what’s at stake in the Supreme Court case isn’t whether organizing women’s sport by biological sex is *good*, it’s whether it’s *constitutionally impermissible*. If SCOTUS finds that it does, activists on this issue would plausibly not be able to return to it later when the government was more to their liking; depending on the scope of the ruling, they could be in the same constitutional bind as pro-life activists were in after Roe v. Wade. And the ruling made would likely to have consequences well beyond the specific space of women’s sport.
(All that said, I think the chance of SCOTUS reaching that finding is extremely low. Were I advising those activists (I’m not), I would counsel complacency. Had I been advising ACLU when they brought this case (I wasn’t) I would have strongly advised against doing so given the likelihood of a fairly sweeping and damaging precedent.)
Again happy to be corrected if someone’s more informed on the jurisprudential aspects.
Even if one were to take the claim that the signatories are primarily motivated by support for “women’s sex-based rights” at face value, there are many ways this support could be (and is) shown without acting in service of right-wing state governments. This brief is collaboration with a fascist regime.
I’m not (to put it mildly) a fan of the state governments of Idaho and West Virginia, but they’re democratically elected governments who are defending in court legislation that they passed – with overwhelming support from their respective electorates – years ago, long before Trump’s reelection. I think “fascist” is overstated even as a description of the current federal government (it has taken very dangerous steps in that direction but there is still a long way to go), but I can’t see even the prima facie case for applying it to these state governments.
I’m not sure where you’re getting “overwhelming support” from–cursory research suggests (unsurprisingly) that in both Idaho and West Virginia these bans were contentious. And the “fascist regime” I refer to is made up of local, state, and federal entities of various sorts. For example, these particular state governments have enthusiastically welcomed increasingly cruel, and in many cases lawless, anti-immigration activities. That is just one way in which they are constituents of said regime. (Incidentally, Brad Little, the governor of Idaho, signed draconian abortion restrictions into law, triggered by the repeal of Roe–a real champion of “women’s sex-based rights”).
I suppose I should have been more clear in my comment above that I was responding to Moti Gorin’s statement that “the rights of women and girls are worth protecting even when Trump is the president,” and his further claims that the signatories’ complicity with the present regime is either not complicity, or is complicity but it’s OK because it’s for a good cause (I’m not sure which). I was suggesting that there are plenty of other ways to advocate for “women’s sex-based rights” (as odious as I might find that project as the signatories to this brief understand it) that do not involve unbidden collaboration with fascists. I don’t think the signatories should be able to get away with distancing themselves from or explaining away their complicity.
“I’m not sure where you’re getting “overwhelming support” from–cursory research suggests (unsurprisingly) that in both Idaho and West Virginia these bans were contentious.”
In 2021 (these bills passed in 2020 and 2022, I believe), 86% of Republicans, 63% of Independents, and 41% of Democrats opposed trans athletes playing on teams that matched their gender identity. Idaho went 67/31 for Trump in 2024 and West Virginia went 70/28 for Trump. Combine those and you’d predict 72% opposition in Idaho and 73% opposition in West Virginia. That passes my threshold for ‘overwhelming’.
(If you ask what percentage of the electorates you’d expect to support the bills now, you’d get even higher numbers, since opposition has hardened across the population.)
I don’t know any issue polling in Idaho and West Virginia specifically on these issues and it’s logically possible that they have a very idiosyncratic electorate, but I think it’s implausible.
Of course, this is all descriptive rather than normative, except insofar as it speaks to the democratic legitimacy of what Idaho and West Virginia are doing. But very bad legislation can be democratically legitimate. I absolutely abhor the anti-abortion bill that Brad Little signed, and I’m glad not to be raising my daughter in Idaho – but democratically enacted legislation that I abhor isn’t fascism.
I don’t think extrapolation from related stats without, as you note, any actual issue polling, justifies the claim that these bills had overwhelming support. And for that matter, fascism seems pretty popular right now–doesn’t make it not fascism. But that’s a side issue–since you don’t think fascism is appropriate to describe even the present actions of the federal government, I doubt we’ll agree on much here, but as I said above, I think the fascist regime operating in the US right now is not limited to the federal government (or even just the government) nor do its activities preclude democratically enacted legislation. As others have noted, a key element in the program of the hard right in the US is casting trans people (along with immigrants, etc) as polymorphous villains (as Felix says above: “The enemy is both weak and strong, and the general consensus must keep them that way: Pitiful specimens, weaklings; and monstrous Goliaths, all at once.”) This, at least, is continuous with historical fascist projects, and these court cases are a part of that program. That is certainly not the only continuity, but I’m less concerned with how perfectly US fascism fits with historical examples than the fact that it is quite evidently (to me) here. Call it fascism with democratic characteristics if you like–one lesson from history is that in both ideological and practical matters, fascists are adaptable.
I’m not quite sure if you’re joking. Do you seriously think that: even though Idaho and West Virginia are two of the reddest states in the country… even though Republican voters nationwide oppose trans women in women’s sports by 70-80 majorities in multiple polls (with even Democrats being evenly split… even though these two states were in fact the first two to pass legislation on the matter… and even though their governors and republican state legislators repeatedly campaign on the issue…
… even despite all that, Idaho and/or West Virginia through some extraordinary quirk of demographics have electorates who are not strongly opposed to trans women in women’s sports…
… and yet no-one has noticed this extraordinary quirk and discussed it in the press, despite the white heat of publicity this whole issue has had?
I mean, as I say, it’s logically possible given the data. Likewise, it’s logically possible given the data that the faculty of Princeton voted overwhelmingly for Donald Trump.
Just a brief comment on the piece you linked to, Moti, because I find it pretty bizarre. It gives a very uncritical look at key figures in the anti-trans movement, and seems to go out of its way to emphasize their “liberal” credentials. And this is a longstanding pattern here: The best way to launder bigotry to liberals appears to involve repeatedly emphasizing that there are nominally liberal figures who hold bigoted views. That’s why you get sentences like “Liberal journalist So and So’s work…” instead of just “Journalist So and So’s work…”
And this pattern recurs throughout the piece. For instance, there’s a paragraph where the author acknowledges that issues relating to trans rights have been “blatantly instrumentalized and cruelly exploited by the right.” But then he goes on to exonerate the “liberal” figures who helped in this and have done little or nothing to fight it as merely having raised “reasonable concerns.” Job done, I guess! Reasonable Concerns raised. The idea that maybe they should have reasonable concerns about where their concern-trolling about trans lives has led doesn’t seem to occur to the author.
In another example, very shortly after, he tries to dispel the charge of moral panic by gesturing at “several northern European countries” that have supposedly adopted a conservative approach in healthcare for trans folk. These are European countries! The subtext is that they are liberal. And if these liberal places are doing such things then surely it cannot be a moral panic, right? For some reason, Brubaker doesn’t mention those European countries that haven’t adopted that approach (e.g., France, Poland, Germanic language countries). (He could have looked closer to home, too, such as at the recent report from Utah. To be fair, though, there is of course the notorious HHS report too.)
After exonerating supposed liberals for their role in fomenting reactionary panic, he goes on wag his finger at trans folk and advocates for raising concerns of their own. As if we have no reason for raising them, especially in an environment of increasing public suspicion and hostility toward trans folk—an environment that the liberals Brubaker mentioned have helped create.
In short, this piece is extremely slanted. Although you’ve described it as having been written “n a manner far more sensitive to a wide range of relevant facts,” it’s clear that Brubaker has omitted a significant number of relevant facts.
The suggestion that what Brubaker is doing here is “launder[ing] bigotry” is, I think, absurd on its face. You can disagree with him and critique the article without using this language. (My dictionary gives one of the definitions for “bigot” as “a narrow-minded, prejudiced person.” “Bigotry” is defined as “the behavior, attitudes, or beliefs of a bigot; intolerance; prejudice.”)
You may think that every young person who declares a gender identity at variance with natal sex should be given medical intervention without further inquiry or discussion, but those, such as the legislators in Scandinavian countries mentioned in the article, who have taken a somewhat more cautious approach, at least in some cases, are not bigots, at least not as I understand the word “bigot.” (Whether they’ve made the right choice is a separate question, and one that I can’t answer without knowing more in detail about the issues.)
And btw for the record, if I were a philosopher (which I’m not) and had been asked to sign the amicus brief under discussion in this thread, I would have declined.
“Reasonable Concerns” and “Just Asking Questions” has been a fairly common tactic in the mainstreaming of transphobia. Even in Brubaker’s account, that’s exactly what supposedly liberal writers have done—offer up putatively reasonable concerns and merely ask questions. But that’s where his analysis stops: He doesn’t interrogate the consequences of that concern-trolling; whether the concerns, when spelled out, are reasonable; whether the questions are even good questions to ask, and if so, what answers might be given or have been given. Because of this, he fails to identify the pivotal role that the “liberal” commentators he is attempting to exonerate have had in sowing disinformation that was promptly “blatantly instrumentalized and cruelly exploited by the right” to attack trans people.
This is a rather serious failure in analysis, insofar as it requires us to overlook many of the relevant facts about how such positions entered into the mainstream for the right to be able to “cruelly exploit” them. Moreover, its omission of facts pertaining to reviews of healthcare is glaring: It only mentions those reviews that anti-trans “liberal” commentators constantly gesture at, seemingly to argue that their “concerns” were valid, and ignores altogether any reviews that would complicate that narrative. (To be fair, perhaps the author is not aware of such reviews; he wouldn’t be, if all he reads is the work of those commentators.) Therefore, given that sensitivity to relevant facts was presented as the very reason this piece was cited, it isn’t very good, in my opinion.
I wrote a reply to this comment, but for some reason DN blocked it as “awaiting approval,” and I’m not going to retype it.
It is interesting that Timothy Williamson both signed this amicus brief as well as a brief from last year by Yale philosophy professors against a ban on gender-affirming healthcare for transgender minors. It is wrong to portray everyone signing this brief as an opponent of trans people.
To launder the political persecution of a vulnerable minority, as though this is merely a philosophical exercise being conducted in normal times in some seminar room, is shockingly irresponsible. This is not bravely standing up for women–the political forces opposed to transpeople in the United States are not exactly fans of women’s autonomy and flourishing.
Sorry, but could you clarify? Is the idea here that because some of the people who support these laws are also pro-life, one ought to oppose these laws? Or if one supports these laws because of the unfairness/danger to women and girls posed by biological males in sports, one is being obviously inconsistent (and therefore disingenuous) if one is also pro-life?
Oh, come on. First of all, the issue w/re abortion is not being ‘pro-life’ it’s being anti-choice; not valuing the life of the woman (or, say, a 10 yr old girl who has been the victim of rape and has to cross state lines to get an abortion which, when she does, leads the Attorney General of that state to threaten the license of the doctor who performed the procedure). But you also know perfectly well, Prof. L, that if we’re talking about the statistically average anti-trans activist in the current Federal government, we’re talking about people who are not only anti-choice when it comes to reproductive choices of women, but who also openly avow that women should not be part of the paid work force, but rather commit themselves wholly (as is “God’s will”) to popping out babies like pea dispensers and spending their lives doing nothing but raising those children.
No, I don’t know “perfectly well” that the average person who supports sex-segregated sports wants women out of the workforce. I’d love to see some data that supports that.
That’s not the scope of the claim I made. The scope of my claim was “the statistically average anti-trans activist in the current Federal government”. A simple google search (or, e.g., the speeches at the Charlie Kirk memorial event) is enough to establish that.
It’s mathematically impossible for the average *person* to hold both those views, since a substantial majority of the population hold the first and a tiny minority hold the second. But to be fair, ‘tenured’ was talking about the average *anti-trans activist in the current Federal government*, not the average *person*.
That said, I very much doubt that the average person in the Trump administration who supports sex-segregated sports also wants women out of the workforce, since probably nearly all of them support the former and the latter is pretty fringe even in the administration (as one illustration, it’s nowhere in Project 2025 so far as I can see, and indeed Project 2025 is at pains to talk about the ‘men and women’ of the armed services, and to extol Trump 1.0’s (supposed) success at reducing unemployment among women).
I don’t recall any active member of the administration advocating that women should not be part of the paid workforce. I imagine there are some, since that view absolutely is present in the online and talk-radio right and the Trump administration’s vetting process is pretty minimal. I’d be surprised (but, unfortunately, not astonished) to find someone in a really prominent position advocating it; if ‘tenured’ has examples in mind, I’d be interested to see them.
I think tenured has in mind efforts (largely by conservatives) to advocate for policies that incentivize/don’t disincentivize (hard to draw the boundary there) single-income families with children, where one parent, typically the mother, stays home with young children. E.g., many conservatives would prefer to increase the CTC rather than subsidize or give tax breaks for daycare, and are in general for making stay-at-home-parenthood a more viable option for many. I don’t think it is a majority of republican lawmakers, as evinced by the final version of the “big beautiful bill”, so even on that capacious definition, I think “tenured” is wrong.
It’s of course uncharitable to say that such advocates think that women ought not be in the workforce but instead should be “popping out babies like pez dispensers” (lovely image–so kind to mothers. So feminist). To call these policy views “anti-woman” is begging the question a bit, and more to the point, it has nothing at all to do with the amicus brief philosophers named above.
It is worth reiterating that people who think that sports ought to be sex-segregated constitute 2/3 to 3/4 of the populace, including a sizable (I think I read somewhere ~45%) portion of democrats, who are, presumably, majority pro-choice, and many of whom would likely advocate for reasonable trans-inclusive policies in other domains. We just don’t want our fifteen year old daughters being bulldozed, injured, and outperformed by trans girls/biological males on their high school basketball team.
It’s not clear what even means though. The authors of the brief do not give us a definition; I guess assuming that it’s up to us to decide on one. Which, well, fine. But I doubt they’d be happy with the definitions we come up with if they are more inclusive. We’ve seen in the past how definitions based on birth-registered sex get cast aside rather quickly when they don’t do what these commentators want them to do.
The implication being that there are no reasonable trans-inclusive policies to be had here. Why think this? Or, even if one does think this with respect to certain sports, why think that it is generalizable into a universal truth across every sport and mode of participation? Because that’s what blanket bans amount to; foreclosing the idea of reasonable inclusive policy while not demonstrating that doing so is itself reasonable as a means toward the putative aims (safety, fairness, and so on).
JD Vance… (In spite of his own wife’s occupation)
[and Prof L– I take it tenured was quoting a now well known song with that line about pez dispensers https://www.youtube.com/watch?v=KsW-hRfpCSs ]
Well, quoting someone else’s gross sentiment mocking mothers is not much better … But I digress …
JD Vance has never said that women shouldn’t work. Just that feminism has made it so that women prioritize their careers to a degree that makes them miserable, and other such statements. I don’t love the sentiment directed at women in particular (although I agree that more people–men and women alike–would be better off prioritizing family over career, and many incentives push us in the other direction). But it’s not what tenured was saying, unless tenured was intentionally being hyperbolic.
didn’t even have to go looking– just showed up in my daily newspaper reading: https://www.wsj.com/us-news/douglas-wilson-wants-the-u-s-to-be-a-christian-republic-maga-is-listening-d4339e45?mod=hp_lead_pos7#comments_sector
This is a profile about a fringe lunatic. I’m not sure what you think it shows. It doesn’t even indicate that this weirdo thinks that women ought to be excluded from the workforce.
Project 2025 was “fringe” too, depending on who you asked. I don’t think it matters to say that this or that hard right position is “fringe” anymore. Nor does the Trump administration’s apparent disavowal or distancing matter either. (Trump famously distanced himself from Project 2025, and is now implementing it.) They’re in power. They’re not shy about using their power. The ground beneath your feet has shifted several times over and you are still pretending that you can count on the boulder over there to remain fixed in place and at a safe distance.
https://www.pbs.org/newshour/amp/nation/what-to-know-about-the-archconservative-church-defense-secretary-pete-hegseth-attends
in case we’re keeping track, hegseth is trying to send 200 national guard troops into portland: https://www.oregonlive.com/portland/2025/09/live-blog-portlanders-take-to-the-streets-as-trump-administration-mobilizes-national-guard-state-sues-to-block-troops.html
if you think these moves aren’t setting precedent for voter intimidation in the midterm elections, i’ve got a bridge in brooklyn you might be interested in buying.
i recommend the “there’s nothing to see here” crowd wake up.
The average DN post gets say 20 comments. We are now at 159. Not sure we are getting anywhere with this discussion. What’s the conclusion?
If I were to take the goal of these threads to be the settling of issues or the winning of hearts and minds, I’d probably be disappointed. If I were to take the goal to be an informal airing of (and, one would hope, a measure of appreciation for) various positions and of various ways of arguing for them, I’d be less disappointed.
I, for one, have learned a lot from these century threads about the details and nuances of positions with which I was previously unacquainted.
Well, I don’t know. I am not convinced. My point was not about the lack of consensus but how much more attention this issue draws – looks almost like tribal warfare to me – compared to other issues. But perhaps this is how it should be.
Perhaps we can do some of our thinking here — maybe even some imperfectly sublimated tribal warfare — and do our compromising where it actually matters, where the stakes are less symbolic: offline.
That’s one thing I miss – but I admit that I do not take part and largely do not follow this debate – the focus on practice. These are practical and also emancipatory matters. They won’t be solved by conceptual analysis and metaphysics. Philosophers will probably never agree about these matters and the courts won’t follow their advice anyway. In the meantime, in some countries, transpeople can’t go to the toilet or don’t know where to go to.
I have a theory: Those who are transgender, or those who love someone or have a close friend who is, feel as though they or their loved ones are under direct attack, and so feel forced to respond. That conflict drives more attention to those attacking them, who are then motivated to counter, and so on. And in today’s degraded, algorithmically-manipulated, social-media dominated “discussion” environment, attention, not substantive merit, is what drives debate.
About half the debaters are transgender people (who often may not be known publicly as such), or their friends or family, who are feeling truly afraid. Their pleas for compassion seem to me a sad subtext of this “debate.”
Yes, I agree. I think there is a further factor, though. What I call tribal warfare above. This is typically the kind of topic that people see black and white and choose sides accordingly.This is why Trump and co love to provoke controversy on such issues so much. They know that if they use the right call words, the tribe will come together. We are, as a profession, inadvertently playing into their hands: we get divided and as we know, divide et impera. (This is not to say that there is nothing here to discuss. There are lots of issues, conceptual, metaphysical, what not (although, as I say, the immediate practical concerns will not be settled by these discussions). But the debate here is only superficially about those issues. What is at stake is where one belongs. This is why I don’t take part in it.)
There are a couple of arguments in the brief that I don’t find convincing.
(1) I don’t get, at all, the assumption that if it’s right to sort athletes as male and female approximately, then it’s right to sort them that way exactly (p. 19). Suppose I believe that athletes should be sorted based on the sex on their original birth certificates or the beliefs of parents and medical staff when the child was born. This will be an approximate sorting because some of those original judgments were probably incorrect—the baby appeared female but is intersex, etc. I might say that’s the best sorting, all things considered. That could be because I don’t think athletes should be subjected to invasive tests that can overturn their deep-seated beliefs about their sex in a life-altering way (think Caster Semenya). So the approximate sorting, in my view, is morally better than the exact sorting. Whatever you think of this argument, it shows there is no automatic step from “approximate sorting is good” to “exact sorting is good.”
(2) I also don’t find the appeal to natural categories all that morally compelling, at least to the extent that so much of the argument in the brief rests on it. The people who are prohibited from having driver’s licenses in my state are people who are either under 16 or who didn’t pass a driver’s test. This isn’t a very natural category, but considering that each requirement is well motivated, the category thereby created is unobjectionable.
(3) Another issue is that there are actually lots of natural categories that could be used in sports. Skill categories are natural (aren’t they?) just as sex categories are natural (arguably). To explain why it’s important to organize sports based on sex categories instead of skill categories, it seems inevitable that you’re going to have to talk about athletes’ and spectators’ perceptions. I want there to be a marathon winner “like me” and it doesn’t do it for me that the “like me” category consists of people who run relatively slowly. I want there to be a fantastic runner who represents me. In taking such things into account, to defend sex as opposed to skill categories, we’re inevitably moving away from abstract issues about natural vs. gerrymandered categories.
I enjoyed reading this news. Thanks, Justin. It’s nice to see prominent members of our discipline wade into the national conversation like this, and I appreciate the stance they are taking. I think it’s important for academics to use their knowledge for good in socially valuable ways.
If only all the people whose comments plainly show that they have never actually played (or coached, or refereed, or otherwise participated in) competitive sports with women and/or trans people would be quiet, those of us who have the relevant background knowledge to say things that are even approximately true and relevant could have a more productive discussion here. Those of the authors I happen to know personally are also not particularly sporty types and their areas of expertise are very far indeed from topics like political philosophy or applied ethics. Why weigh in on a topic when you have no horse in the race and at best marginal relevant experience? Go do your armchair philosophy someplace where nobody is going to get hurt!
This is awfully presumptive. I think most people have played sports, even if they are not “sporty types” (whatever that means) now.
Given what you’ve said here, I’m guessing you’re a man, or at least a biological male, or someone who’s never played contact sports competitively, since you seem to have no clue what it would be like to be a female going up against males in a contact sport. Does that disqualify you from this discussion? No, I don’t think so. Everyone can contribute, people are making arguments sometimes based on their experience, but most of the time on other things (experiences are hard to generalize from in any case, so not a great argumentative strategy), and that’s fine.
I’ve played sports and continue to compete. I know several of the authors also do.
Setting aside the content of the brief, I think it is important to acknowledge that this particular Supreme Court (by which I mean its 6 conservative justices) is one that has abdicated its traditional source of legitimacy over the last several years. By this I mean that it has embraced its role as an advancer of a very specific political agenda. They are hardly pretending about this anymore. Whatever one thinks of that agenda, I am struck by the willingness of the authors of this brief to engage with a court like this at this particular moment. Further, I think that these political facts put pressure on the idea that one could engage with this court in a way that separates some particular issue from the larger political program which this court seeks to advance. And again, I’m remaining neutral on that particular issue here.
“I am struck by the willingness of the authors of this brief to engage with a court like this at this particular moment.”
Possibly they don’t agree with your analysis of the court. (I don’t, or not fully, though this isn’t a good place to elaborate.)
Indeed, yes, they may not agree. (I’d be curious to hear your reasons for not, though totally understand if you think this isn’t the place). In my comment I was interested in the decision to write an amicus brief if one did agree with this analysis (which I stand by, though admittedly I’m no scholar of the court). But you’re right: perhaps they don’t.
Are you worried about any engagement with the court, irrespective of the substance of that engagement? For example, were you similarly worried about the Yale philosophers’ brief in the Skrmetti case? Or are you worried only about engagement when it is more likely to find a sympathetic hearing from the conservative justices than from the liberals? Because if it’s the latter, then your worry seems less like a worry about engaging with this court, per se, and more about the first order issues. And that’s fine, of course, but it’s a different kind of objection (and plenty of people in this thread have raised some version of it).
The issue I’m raising is about engagement in a certain kind of political circumstance. I don’t think the right analogy, though, is with the Skrmetti case, because I don’t think that Kagan, Sotomayor, and Jackson are politically compromised in the way that the others (or at least some of them) are, independently of their substantive views. The analogy I’ve been wrestling with is one where the court is fully a political tool but it just so happens that their politics are mine (or, more specifically, that they are likely to rule on a particular case in a way that I think right). How would I feel about the submission of an amicus brief in such a case? Maybe I’d be more okay with it, but I at least think that in doing so I wouldn’t try to claim that I wasn’t in some way being caught up in the larger ideological program of the court. I’d try to be honest about the political analysis and would wrestle with it.
I guess one simple response is just to say: one ought to do what one can to win the best particular outcomes, regardless of the nature of the court and what it’s up to. And I guess what I’m saying is if that’s what is happening, let’s just be clear about it, and about the risks involved.
There may be cases where a decision is in a sense overdetermined. Maybe the court is “compromised”, as you put it, or clearly ideologically motivated or whatever, but also the decision really is the right decision, legally speaking, and one that different courts with a range of different political distributions could arrive at. Perhaps in such cases it is especially important to offer, when one can, good reasons in support of some position, so that it is clear to others that, while the decision may have been motivated by bad reasons in this instance, it is nevertheless justified by good ones.
I don’t think this is what’s happening in this particular case, but I wanted to point out that the implications of a court’s being “politically compromised” or overly ideological or whatever aren’t straightforward (at least not to me).
Yes, I think something like this would be the best kind of case to make in such circumstances. I’m just not sure how good it is.
At any rate, I agree that the implications of such a situation aren’t necessarily straightforward, but I think there are interesting questions here that are relevant for this case (though I understand that they depend on a political analysis that others may disagree with).
Moti, since I think it will probably (legitimately) influence how people interpret your arguments about the appropriateness of working with this Supreme Court on these issues in the current moment, can you indicate whether you were one of the authors of the HHS report on pediatric gender care?
And while you’re at it, Moti, just so we’re all fully informed about your current and previous associations: Are you, or have you ever been, a member of the Communist Party of the United States?
I think this is a false equivalence; if one has to draw a parallel, perhaps it would be more appropriate to compare it to asking if he had ever been an unnamed participant on the side of HUAC subsequently making the case to other screenwriters that collaborating with the government that enabled the blacklists wasn’t such a bad idea.
However, comparisons aside, I simply think it is appropriate to ask him about his own previous engagements with this administration on these topics to achieve goals he independently values.
Why?
My comparison was more apt because McCarthyism was a tactic of discrediting those who were out of power led by representatives of the ruling party at the time, and portraying someone as the victim of a McCarthyist interrogation because I asked them whether they can disclose if they were an author of a policy document for the current Administration’s department of HHS is a mockery of that of concept. While not everyone who authored the document is going to write an essay about their role, like Byrne did, it’s laughable to suggest that asking someone if they were involved in writing it is McCarthyist.
It’s bizarre how, even with an increasingly authoritarian administration that’s amenable to their thinking, a court that’s very likely to be sympathetic to their conclusions, a congress that will do nothing to intervene to oppose their larger political project, and more than a couple of billionaires with algorithmic megaphones, they still want to play it like they’re UwU small beans. Just a little guy!
“They”?
No, I meant why is it appropriate to ask this?
As I said, it may justifiably influence how people understand the claims being made about how/whether to engage with this administration under these circumstances to understand the extent of his prior engagements with this administration.
I agree that it may influence people in this way. So I guess the real question is whether it may do so justifiably. I suppose that’s ultimately what I’m asking about. But I see your point, I think.
Was it really a question? It might always be possible to divorce the words we say from what they do, but the rubber always meets the road at some point.
If the authors of the brief did not believe their names mattered, they should not have signed it. Yesterday, the reputation behind these names were all that mattered. Which is all good, as the exercise was theater for the most part: there was no legal argument to speak of, and few signatories really worked on natural “properties” anyway.
Yes, it was really a question.
That’s not really a response to what I just said either.
You asked, I answered. I continue to question whether the influence such knowledge may produce is justified. You’ve sort of just said “it is” (the rubber always meets the road somewhere—fine, why here?). I’d personally just prefer to hear Moti’s reasoning about working with the courts rather than draw a conclusion based on how he might have interacted with them. But, like I said, I get the point I guess.
I didn’t really asked, but I responded as if you did ask a real question.
Your “sort of”, “fine”, and “I guess” tell me I shouldn’t have taken the bait.
Sorry about that.
I’m not quite sure what you’re saying in that first sentence, sorry.
I’ll probably continue to just hear Moti out. He’s a reasonable, decent guy, and I still don’t know why I should agree about the whole road and rubber thing.
Anyway, apology accepted.
I’m not sure how you hearing anyone out would be conditional on agreeing on that whole road and rubber thing. Just as I’m not sure why you accept that apology, which wasn’t directed at you.
I’m not sure about this “I’m not sure” stance. It never seems to quench any thirst, does it?
Not with responses like this, no. But when it’s actually addressed? Sure, all the time.
Since that whole road and rubber thing already addressed it, I’m afraid you’ll have to stay thirsty.
It did not.
You seem less unsure out of a sudden.
Why?
What I’m unsure of: whether influence is justified.
What I’ve been sure of the whole time: you haven’t given a reason to assuage the uncertainty above.
I thought you were asking if the “influence” may be justifiable, a more general question. Which I indeed addressed: remove the names, see how that works for you. There’s nothing very mysterious about people signing briefs, and people like Tucker Carlson only advertising who signed it. The proof is in the pudding, not in some abstract realm where that brief doesn’t really matter.
If memory serves well, that’s not the only source of uncertainty, e.g. “why here”? Here is like everywhere else online: people undersign their comments. Including you, unless you appear under different names.
You know, if you only want to say that you don’t believe people should assign any credence to klout and authority, you could say it directly.
I don’t know if these are David Wallace’s reasons, but here’s a recent post from Steve Vladeck, a law professor at Georgetown, laying out some reasons to be less despondent about the state of our system of checks and balances–specifically, the judiciary checking the executive–than many people I’m seeing.
Here’s the big picture claim:
The birthright citizenship executive order–the issue the post focuses on–is basically dead in the water right now; it’s not being put into effect. The picture Vladek paints is that the solicitor general is being strategic, and focusing on speedily appealing cases where he thinks he has the best chance of winning, if not ultimately on the merits, then at least on interim procedural questions about whether lower court orders can be stayed.
So if you see the administration winning a lot at SCOTUS, that doesn’t tell you SCOTUS is determined to give them whatever they want. It may just tell you that the solicitor general is good at picking his battles. If he thought SCOTUS would give the administration whatever they wanted, then we probably would see the birthright citizenship EO being implemented. (He has other examples too.)
I, for one, will be a lot more despondent if I see the administration win on the merits concerning birthright citizenship, or the EOs targeting law firms, or various other examples where I’m still counting (call me naive) on courts being a genuine check on executive lawlessness. Feel free to say “I told you so” if that happens and we’re discussing this in a gulag next year.
Vladeck put it much more sophisticatedly than I would have been able to: but yes, these are basically my reasons.
(As someone born in the US to non-immigrant parents, I have been paying fairly close attention to the birthright citizenship cases.)
Thanks Daniel (and David). To make a long story short, I am less optimistic about the situation than you are. But I appreciate your point and will think about it more.
(I don’t think this is the place to hash this out, but I’ll just mention a few things I have in mind: the usage of the shadow docket to advance the president’s agenda, and particularly its authoritarian elements, their waffling between seemingly accepting that this is precisely what they’re up to, while on the other hand consistently downplaying or outright lying about the implications of their decisions–to be clear, neither is good–the blatant ethics violations of Alito and Thomas and the failure of their colleagues to do anything meaningful about it, etc.)
As the author of a widely discussed book on the so-called shadow docket, Vladeck is probably in a better position than anyone to appreciate how irresponsible and unprecedented the current Sup Ct’s use of the shadow docket is.
This Sup Ct has been using the shadow docket to pause (“stay”) various lower court orders adverse to the Trump admin, thereby allowing the Trump admin in those cases to continue its (generally illegal) activity. And the Sup Ct is issuing these stays with almost no legal analysis or reasoning. (Kavanaugh’s recent concurrence in the Los Angeles/ICE shadow-docket case was an exception, though not a persuasive one, and it was not joined by any of the other Justices who agreed with him on the result.)
This is not how the shadow docket, whose formal name is the emergency docket, is supposed to be used. It’s supposed to be used for actual emergencies, the typical one being an appeal by a death-row inmate who is scheduled to be executed within hours and is pursuing a last-resort challenge.
It’s good that the birthright citizenship order has stalled and that there are some lower court rulings that the Trump admin is complying with — in addition to others that it is doubtless simply ignoring. But while some lower courts have been doing good work in fulfilling the role that the judiciary is supposed to play, as far as I can tell the current Supreme Court has shown very little willingness, apart from a few isolated cases, to do much of anything to check the admin’s numerous excesses.
That’s not necessarily a reason not to engage with the Sup Ct at all — people who want to submit amicus briefs probably should submit them — but I think it’s clear that so far the Sup Ct has mostly enabled the Trump admin rather than checked it. A new Sup Ct term is starting soon, so I guess we’ll see to what extent this continues.
I don’t know if you’ve had a chance to read the article Daniel links to, but Vladeck agrees with you that the court is using the shadow docket irresponsibly – but also makes a good case that the court system is doing better than people think, because we only see the comparatively few cases where the Solicitor General likes his chances with SCOTUS.
Thanks, am planning to read it.
What with Gorsuch being the author of the Bostock decision, I should think even among the conservative justices there’s at least a degree of receptiveness to trans rights.
The authors write, “To a good first approximation, any kind of sporting event in which males can compete is a sporting event that males will win. In all the most popular sports, many non-professional male athletes can outperform even the best professional female athletes” (17), and later, “being male is correlated both with the target physical trait and with superior performance at sport” (20).
It’s disappointing that the authors made the above claims without acknowledging the following: the rules of each sport are designed such that the athlete (or team) that best embodies the relevant set of excellences are more likely to win (see Devine, 2022). It should come as no surprise that in a sexist society, those sports that are most lucrative are (generally) those that privilege the male body. Climbing does not universally privilege the male body, as different bodies are be advantaged in different contexts; ultra-distance running does not privilege the male body; long-distance swimming, especially in cold water, privileges the female body; sports that privilege balance and flexibility privilege the female body. I don’t think the claim that “any kind of sporting event in which males can compete is a sporting event that males will win” is a remotely adequate first-order approximation.
Barring transgender men from men’s sports and transgender women from women’s sports will not improve the state of affairs for women athletes. As others have pointed out in the comments, it will explicitly exclude intersex athletes and transgender athletes who seek gender-affirming medical care from sport. The briefing notes that all athletes should have access to the good that is athletic competition. It seems to me that if this is a primary goal, the brief is self-undermining.
In any case where being male is not an advantage, why have different leagues for men and women?
See equestrian sports, shooting sports, croquet, sailing…
phil phys says, “Barring transgender men from men’s sports and transgender women from women’s sports will not improve the state of affairs for women athletes. As others have pointed out in the comments, it will explicitly exclude intersex athletes and transgender athletes who seek gender-affirming medical care from sport.”
First, as pointed out previously in response those comments, it is false to say without qualification that intersex athletes and transgender athletes will be excluded from sport. Trans folk can still participate according to their sex (as opposed to gender) and even some male intersex athletes are still permitted to participate in women’s sports due to the specifics of their conditions.
Second, and more interestingly, the implied argument here is that some trans and intersex athletes should be permitted to compete against other athletes with whom the intersex/trans athletes understand themselves to share a gender identity. Looked at this way, however, we can see that we have a clash of rights. In order to satisfy the implicit “right” of trans/intersex folks to identify the correct group for them to compete against, their perspective on who they share a gender identity with must override any contrary view of non-trans/non-intersex athletes. What’s the justification for that?
A version of this was addressed here.
No, your prior post misses the point.
A person with a homosexual orientation frequently desires to marry a person of the same sex who (crucially!) also desired a same-sex spouse. The successful argument for gay marriage held that we should not frustrate such voluntary arrangements and that it was immaterial that a gay person could enter in a marriage that they did not desire.
Gay marriage allowed gay people to marry voluntarily. It decidedly does not mean that people who don’t share a sexual orientation with someone who desires them should marry (or, to use an appropriate archaism, “sport with”) those they aren’t attracted to in order to “respect” someone else’s orientation.
The situation of transidentified males in female sport is materially different. Transidentified males frequently desire to compete against women even in situations where many women don’t want to compete against trans-identified males.
So, in sports, we are not talking about whether male and female athletes may agree to compete against each other. Instead, the dispute is whether sex-segregated leagues may exist, which functionally means whether protected women’s categories can exist: Will we permit and respect the choice of some women not to compete against men even when those men desire to compete against women?
Isn’t this just a specific case of the general question: Can women say no to relationships desired by men?
No, the argument against marriage equality was a great deal more than that. A lot of the argument turned on invocations of biology, the notion that it infringes on the freedoms of others, and that it would be bad for families and children. In fact, one of the people who submitted an amicus brief for this case authored work (coincidentally, also funded in part by the Witherspoon Institute) that was critical to arguing that the voluntary nature of marriage equality was irrelevant; that the consequences for children were reason enough to disallow it. So I don’t think it’s accurate to say that the situation was entirely materially different.
In any case, you’ve missed the point of why I brought it up, which was to address the claim that trans people are still, technically, allowed to compete; they simply must, on your account, compete in the categories you’ve designated them. But that designation is the very thing under question here. Invoking it to justify your choice of designation seems to me like begging the question (or at least sidestepping it). As before, it is no more meaningful than saying that, technically, gay people are allowed to marry, when the very thing under question is why the marriage they’re actually asking for is disallowed.
Those aren’t necessarily understood to be different or sharply distinct; the terms are often used interchangeably, even in legally relevant contexts. So that doesn’t really resolve anything, imo. And “the specifics of their conditions” might include that they are trans and meet the relevant eligibility criteria for the participation of those who are trans? So I don’t see how that on its own could function as a sufficient argument.
Worth mentioning:
“The Witherspoon Institute made a monetary contribution to the preparation or submission of this brief.”
For more information on Bob’s gig, see:
https://en.wikipedia.org/wiki/Witherspoon_Institute
The same organization provided funding to Regnerus a while back. Some will be familiar with that name because of the New Family Structures Study, which he conducted and which was used to argue against marriage equality. Regnerus also submitted an amicus brief for this case.
You’re here!
Since the founder of the Witherspoon Institute is one of the lead signatories of the brief, I’m not sure their providing support conveys any new information.
Perhaps the authors of the brief did not want to convey much information when they wrote “The Witherspoon Institute made a monetary contribution to the preparation or submission of this brief”. Perhaps they did too.
Perhaps also sentences are written for something else than conveying information, whatever that might mean.
Straightforwardly, it provides the information that the institute provided funds, and that this was deemed an appropriate use of Witherspoon institute funds by whatever process they use to allocate and spend funds, rather than him just using his own funds to do this?
Like, I assume he can’t just use Witherspoon Institute funds to buy movie tickets or to pay for lunch on a whim, because, even if he founded the institute, it has a separate President and org structure and budget process and isn’t just his personal piggy bank.
Also worth mentioning: FIRE regularly sponsors amicus curiae briefs for cases in which free speech is an issue.
Why don’t these supposed amici curiae spend their own funds? Why are they treating FIRE as their own personal piggy bank?
I said it wasn’t being used as his personal piggy bank, so I am not entirely sure what your concern is, other than that you disagree with me, and saw the phrase “piggy bank” being used, but don’t really understand what I meant, so you’re just throwing spaghetti at the wall with an objection to see if anything sticks.
I’m not objecting to anything at all.
It is unsurprising that Witherspoon Institute would fund an initiative like this. They are not shy about their allegiances. It’s about as noteworthy as FIRE using their funds to fight legal battles on behalf of free speech.
Surprise might be easier to find when looking at who decided to associate themselves with the Witherspoon Institute. For instance, a few of them don’t seem to be working in the US of A or even be American citizens.
Well, now I am surprised, because anyone can read the mission statement, where Witherspoon Institute voices its support for:
So … Sure, if one is so beholden to American tribalism in your modes of thought that you can’t countenance the possibility of a pro-immigrant organization that also advocates for traditional understandings of sexuality … then perhaps this would be surprising for you.
To find “Giving the Natural Law View of Marriage and Sexuality a Voice” on that page isn’t surprising at all. If one is to cheerlead for our Oxonian Globetrotters, one might as well choose a good song.
How about Gold, by Spandau Ballet:
Always believe in your soul, Professor.
Perhaps one should be reassured by Daniel Kodsi’s remark:
‘First, and obviously, no further commitments are to be imputed to the signatories than to the justifiability of organizing sports around the sex categories. This should “go without saying,” but I wanted to make it quite explicit.’
That it needs to be said is telling. After all, the For Women Scotland case before the UK Supreme Court started over quotas for representation of women on public boards. By all accounts it will conclude shortly in EHRC guidance applying across the whole of the public and private sectors that trans people are to be barred from all single-sex spaces other than those of their birth sex; and those as well, if we look too much like the “other” sex. Daniel’s remark is reminiscent of Lord Hodge’s comment that the court’s view should not be seen as a victory for one side over the other. Because that is exactly what it has become.
The thing is, we have here two hard-edged, uncompromising positions, that doubtless make excellent debate in the seminar room. On the one hand, the gender ideologues, on the other, the gender-critical feminists. The difficulty is that when this leaches out of the seminar room the consequences for trans people like me are, frankly, brutal. There is already provision in the 2004 Gender Recognition Act for excluding trans people if there is a proportionate reason. So in sport, in the UK, at least, all one has to do is make the case for a proportionate reason. But now I’m told, after living in my acquired gender since before the GRA, that I have to be excluded from the toilets that I’ve used for decades because I am a threat to women. I know, we started with sport, but as is all too often the case with court cases, you can never be sure, when you begin, where they will end.
In the midst of this deeply ideological debate there are people like me who are, as far as possible, silent (usually) and invisible. But now we’re just collateral damage. People say, what rights have you lost? Well, ok. I am no longer safe from the state. If I use the same female public loos that I’ve been using for decades, I am at risk from male vigilatism, because nobody has worked out, yet, how these laws are to be enforced. If I get arrested I can get strip-searched by a male police officer and locked up in a male prison. If I get sick, I can be placed on a male ward. I’m told well, it’s ok, you’re a man, so you can fight back. Great.
I could of course explain, but that would involve nuance and good will. And that’s gone. As far as I’m concerned, the biology argument is a straw man. Nobody in their right mind thinks you can change biological sex. It was always about legal and social recognition, and that’s built into the 2004 GRA. But then I also think that being accepted means being acceptable, so I don’t think trans women should compete in women’s sports and there are some female spaces that I wouldn’t go into. But then, I’m nobody’s activist and I don’t even know any other trans people.
But hey, why would I care. The British state has made it very clear to me that I am no longer safe. So next year, if all goes to plan, I’m emigrating. I can’t tell you how much of a relief it is to go to a public loo on the continent without having to worry that something as quotidian as going for a wee might morph into a life-changing experience, not of the good kind, or a criminal record.
Some people in these comments have expressed the view that if you oppose letting males compete on female sports teams, you are a fascist collaborator. Given that Gavin Newsom and Kamala Harris have both now expressed reservations about letting males compete against females, would you say that they, too, are fascist collaborators?
Yes?
I’m not sure that this is the own you think it is, Molly. Newsom especially is reviled by the left, for his position here and much else besides. I don’t know that I’d call him a collaborator as such, but he certainly isn’t any sort of ally or comrade.
Ah, the marvellous conceptual engineering project of philosophy, ‘fascists’ now refers to whoever is opposed to males competing in female sports, analytically so.
Fascists do tend to have a very negative view of sexual and gender minorities, yes, Scott Lively’s ahistorical narrative to the contrary notwithstanding.
And fascists also tend to believe that not eating breakfast is not good for your health and that 1+1=2. Do you also believe these? Does that make you a fascist by definition?
Everything is cake/fascism.
On the contrary. It’s only fascist collaboration if it’s in Vichy. Everywhere else it’s sparkling co-signing.
More sparkles:
https://www.supremecourt.gov/DocketPDF/24/24-38/375225/20250919133444530_24-38-24-43acTheChurchOfJesusChristOfLatter-DaySaints.pdf
As not so easily confused explained below, we need not accept your (or Molly’s) framing to begin with. So once that’s dispensed with, the rest of it becomes a matter of figuring out whether there is a substantive agreement with the hard right on a matter of hard right politics. There clearly is a substantive agreement here, so far as sexual and gender minorities are concerned, and there clearly is also collaboration, as many of the briefs filed in this case attest to (e.g., UK organization Sex Matters is among them). I’m not sure why you or Molly or others here would pretend to be mystified at others seeing what’s very obvious here.
Regarding the more flippant point you’re making here, look, I don’t think we’d consider it credible for someone to say that they’re only writing love letters to Mr Hitler because they’re after some delicious vegetarian recipes and share a love for German Shepards with the Führer. It’s all an innocent affair of no political import and if anyone says otherwise, well, I’m sure they share something in common with the Führer too, which also implicates them just as much as the letter-writer. This all looks very clever only if you’re desperate to convince yourself that people can’t see what they very obviously can see.
Interesting prose but I’m afraid this is not philosophically substantive at all. Tell me, what is your definition of ‘fascist’? Does opposing to males in female sport qualify you as a fascist? Also a gentle reminder that ‘fascism’ is not a perfect synonym for ‘far right’.
I just said above that we need not accept that framing??
It would be nice if people could be kinder. It isn’t a straightforward matter of letting males compete in female sports, as if some top male athlete can decide tomorrow, I’m going to claim to be a woman and scoop all the prizes. Of course that shouldn’t be allowed. But being trans simply isn’t like that, as any trans person can explain, given time and goodwill. Trans women come in all shapes and sizes, and some are good at sports, and some aren’t. So participation could be decided case by case. The difficulty is with competing and finishing in the rankings (and if you are 6’4″ and weigh 220lbs then you shouldn’t be playing women’s rugby whatever, but that’s just good manners).
Pragmatically it seems to me that trans women shouldn’t compete, in women’s sports, for prizes. For the simple reason that when a trans girl in California scoops the prizes, the backlash against trans women generally is totally disproportionate. The right-wing press has a melt down and certain right-wing fanatics start demanding that trans people be rounded up and incarcerated in mental asylums, in straight jackets fitted with hard steel locks (I know, that followed on the assassination of Charlie Kirk by a white man, but these days any excuse will do).
If one argues that being trans results in a loss of any competitive advantage accruing from going through male puberty, the difficulty is that there is no possibility of setting up a trial to assess this, as there’s no control group. So if a trans woman wins, there’s no way of showing conclusively that it was a fair competition.
Does this make me a fascist collaborator? I hope not. But the actions of individuals are being used to demonise and vilify a tiny segment of the population. A white man shoots people, no other white man gets vilified. A woman kills her children, no other woman gets vilified. A trans girl wins sporting events, and trans women everywhere get vilified. It’s the collective punishment aspect of this that should make anyone queasy. The problem over and over is that what starts as a tidy-looking argument ramifies in unexpected ways.
You’re confused.
People have expressed the view that (a) it is morally abhorrent to mobilize and advocate for the exclusion of trans people from society, and that (b) it is morally abhorrent to collaborate with a fascist government. It just so happens, that in the case of this amicus brief, both (a) and (b) give such people (people who hold this conjunctive view) reason to express their rejection of this brief and its signatories.
As for Newsom and Harris, it is a fully consistent position to think that they are too quick to exclude trans people (thus falling short with regard to stance (a), above) while not needing to view them as themselves collaborating with the current government (and thus not falling short of stance (b)).
Does that help to clarify things?
Some people have expressed the view that if you express reservations letting males compete on female sports teams, you basically cosigned an amicus brief on a case that would forbid it by state law. That brief was organized by the leader of a conservative think tank that fights against same-sex marriage and for natural law, say as opposed to a “gerrymandered” one. {1}
What if I told you these people may have cosigned the brief themselves?
{1} Possible conflicts between a very technical meaning of “gerrymandered” and the one we usually assign in political situations such as this one is only fortuitous. The same applies to “natural” in our comment. If anyone has been misled by this, please be assured that I’m only seeking ideas clear and distinct (TM – patent pending). I deplore the rhetorical force words and thought experiments may have. No life will ever be impacted by what I say anyway.