The debate over whether transgender Women should be allowed to compete against cisgender women in individual sports is only the opening salvo in what promises to be a much broader policy discussion.

The larger issue concerns the discretion that individuals should be granted to strategically self-identify with respect to their gender (and possibly race) in order to “game” the system and thereby secure an unnatural advantage. The overarching concern with strategic self-identification is that it undercuts the remedies that society has devised to atone for its past transgressions in discriminating against women and race-based minorities.

Gender inclusion vs. fair competition

The protracted debate over whether transgender women should be allowed to compete against cisgender women in individual athletic competition shows no sign of abating. Proponents of this type of competition contend that athletes should be able to compete against the gender that they identify with, rather than the gender that reflects their biological sex.

Those opposed to this type of competition believe that “co-mingling” of the sexes in athletic contests is a direct assault on Title IX (prohibiting sex-based discrimination in any school or educational program receiving funding from the federal government) and marks the beginning of the end of women’s sports as we know it. [A separate debate has emerged that concerns whether biological sex is a legitimate basis on which to foreclose participation in team sports.]

There are tradeoffs between gender inclusion (allowing transgender women to compete against cisgender women) and fair competition (ensuring transgender women do not have an unnatural advantage) that must be balanced in the search for a policy equilibrium. The central question that has sharply divided the sports world is whether those that support cisgender-transgender competition can legitimately claim to be advocates for women. As a society, we have seemingly come full-circle in that men, albeit men who identify as women, are once again permitted to leverage an unfair advantage over cisgender women.

Partitioning individual sports competitions into biological sex and chronological age categories is a common practice. The rationale is based on the belief that nature alone should not determine who wins the athletic competition. While admittedly imperfect, the partitioning of competitors into these categories attempts to control for biological differences and thereby increases the likelihood that individual effort, rather than nature, is the deciding factor in the contest. To do otherwise would seemingly violate society’s sense of what constitutes fair competition.

At the high school level, cisgender women, as athletes, are paying dearly for rule changes that now force them to compete against transgender women. The rewards in the form of school records, scholar-athlete designations and college scholarships they had worked towards with many years of self-sacrifice, restricted diets and rigorous training regimens are now far more uncertain—and, in many cases, beyond their reach.

The rules of this new competitive landscape may have unwittingly created its own dynamic. In their quest to win and establish reputations for success, athletic coaches and club sponsors will now have strong incentives to actively recruit transgender women. This raises the troubling prospect that cisgender women will increasingly find themselves “crowded out” of women’s sports.

To address these growing concerns about fair competition, 18 states have now banned transgender women from competing against cisgender women in publicly funded sports. A map of those states that have (not) passed such legislation closely tracks America’s red-state, blue-state divide. Developing a compromise solution is likely to prove difficult, given the politically charged nature of this debate.

The International Olympic Committee (IOC) guidelines previously required that a transgender female have a total serum testosterone level below 10 nanomoles of cortisol per one litre of blood (nmol/L) for at least 12 months prior to competition, and maintain this standard for the duration of eligibility for competition as a female.

This level of testosterone is widely recognized to be at the lower limit of normal in men. Critics claim that this threshold is too high and constitutes an “intolerable unfairness” because the normal, healthy female testosterone range is 0 to 1.7nmol/L. To complicate matters further, medical science has yet to establish a clear line of demarcation that is universally accepted as a fair standard for who is female for the purposes of equity in competition.

In November of last year, the IOC changed its guidelines and now leaves the determination of athlete eligibility to the governing bodies for each individual sport. These new guidelines state that “athletes should not be deemed to have an unfair or disproportionate competitive advantage due to their sex variations, physical appearance and/or transgender status.” In addition, transgender women are no longer required to reduce their testosterone levels to compete.

The outstanding question is whether these rule changes signify the triumph of gender inclusion over fair competition in Olympic sports.

Beyond the transgender athlete debate

There are far-reaching implications of this debate that transcend athletic competition and will require the judicious crafting of public policy. The larger issue pertains to whether individuals should be allowed to strategically self-identify with respect to gender for the purpose of securing an unnatural advantage. This issue is further complicated by the fact that actual cases of gender dysphoria are quite rare: approximately 1 in 12,000 men and 1 in every 30,000 women.

What are the public policy implications of permitting self-identification in terms of gender equity? In the absence of any objective (and readily applied) criteria for determining gender, how do we ensure such programs are not gamed? It is axiomatic in economics that factors flow to their highest rates of return. This axiom applies with equal force to gender self-identification and possibly beyond.

The legal complexity of this issue was foreshadowed in the confirmation hearing for Supreme Court Justice Ketanji Brown Jackson, during which she stated “I’m not a biologist” and therefore could not provide the definition of a woman. A formally trained biologist can certainly speak to the chromosomal composition of a female, but in the new paradigm, this may have precious little to do with defining a woman.

Suppose that a court finds that a corporation has a history of discrimination in hiring and promoting women. In order to provide the necessary compensation, the remedy ordered by the court requires the corporation to hire and promote women at a faster rate than men over the next decade. A biological male employed by this corporation subsequently self-identifies as a woman and therefore qualifies for this remedy. In doing so, she has essentially hijacked the compensation that was earmarked for cisgender women who had actually suffered employment discrimination.

But there is no reason to believe that this strategic self-identification would necessarily end there. If individuals can self-identify with respect to gender, it is conceivable they could also do so with respect to race. To wit, if a white male identifies as a female Native American, Black or Hispanic, should he be entitled to the benefits conferred upon these protected classes (which, heretofore, were based on genetics) in competing for elite college admissions and employment opportunities, and qualifying for various “set-aside” programs in the public and private sectors?

Sanctioning this behaviour would appear to work at cross-purposes with the original intent of these programs, which was to correct for past discrimination and promote diversity. Someone who identifies with a group that has previously been subjected to discrimination does not, by a process of social osmosis, share in the suffering of that group nor would they be entitled to compensation for a “wrong” that they never experienced.

To state this proposition more generally, when discrimination is historically based on nature (for example, biological sex/race), it would be unjust if the compensation for that discrimination were to be determined on the basis of self-identification.

Should policymakers subsequently decide that blacks are entitled to reparations for slavery, would a white who identifies as a black be entitled to reparations? Would a white who identifies as a Native American be entitled to compensation for land taken from these indigenous people, even though his ancestors suffered no unjust confiscation of property?

These examples underscore the difficulties that can arise when individuals are able to self-identify into groups that differ from the biological groups they were born into. It is important to recognize that the main problem identified through these examples is not with the remedies, per se, but with the fact that they target the groups that suffered discrimination rather than the individuals that suffered discrimination. This practice of group compensation is what provides the incentives for strategic self-identification—what economists would refer to as the pursuit of gender and race rents.

Remedying past transgressions

The overarching concern with strategic self-identification is that it undercuts the remedies that society has devised to make amends for its past transgressions in systematically discriminating against minorities.

It is simply not possible to advocate for women and race-based minorities (or at least not discriminate against them) if anyone is able to self-identify as a woman or a race-based minority and be treated as such. We ignore this fact at our own peril because, under these conditions, any remedy that is designed to address a history of discrimination and a lack of diversity is virtually guaranteed to fall short of achieving its objectives.

We have only just begun to scratch the surface in terms of understanding the myriad complexities that gender fluidity and racial fluidity pose for society. This is uncharted and difficult terrain that will pit various interest groups against one another in policy clashes that will play out in the courts and legislatures across the United States and the rest of the world.

The accompanying discourse in the public square promises to be protracted, polarizing, and (all too often) lacking in civility. Given the political climate we live in, it could hardly be any other way.

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image 1 Gerd Altmann from Pixabay 2 Photo by form PxHere 3 image by Ohmydearlife from Pixabay 

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