Diabloggers responding to Diabloggers, Philosophy and Current Issues

Defending the ACLU on trans athletes: A reply to Mr. Jacko

Photo by REUTERS/Brendan McDermid

In an earlier post, Mr. Jacko argued that if there is really no difference between men and women in terms of their potential for athletic performance, then we ought to do away with the divide between men’s and women’s athletics altogether. While I know this read to some as a snarky reductio of an empirical claim that is pretty dubious on its face, I found it an interesting exercise in arguing in the alternative. Everyone gets so caught up on disuputing the descriptive premise here. But if it were true, what would follow? That question deserves more attention.

Nonetheless, after more thought, I think Mr. Jacko’s argument contains a substantial flaw. The descriptive view in question is that there are no differences in athletic ability between trans women and cis women. But there are two different versions of that view:

Radical No Difference: Trans women who have undergone no medical interventions but merely identify as women have no competitive advantage over cis women.
Modest No Difference: Trans women who have undergone medical interventions, including at least one year of hormone replacement therapy (HRT), have no competitive advantage over cis women.

Let’s consider the Radical No Difference view first. If that were true, then it would seemingly have to be because there are no differences between men and women at all in respect to athletic ability. Self-ID has no effect on muscle mass or bone structure. And if there are no differences between men and women at all with respect to athletic ability, then it’s quite plausible that we should do away with men’s and women’s sports as distinct enterprises. On this point I agree with Mr. Jacko.

Now let’s consider the Modest No Difference View. If this were true, it would not imply that there is no difference between men and women at all in respect to athletic ability. It would instead imply that HRT is successful enough at reshaping the human body that it eliminates the competitive advantage one gains by going through male puberty. This is a much more plausible descriptive claim than Radical No Difference. And Modest No Difference does not imply that we should do away with men’s and women’s sports as distinct. Cis women and trans women who have undergone HRT will be at a distinct competitive disadvantage, and this is the justification for separate athletic competitions.

This is all relevant because Mr. Jacko cites the ACLU as an organization that has lined up behind the view that there are no differences between cis women and trans women in athletics. But the ACLU does not accept Radical No Difference. They instead accept Modest No Difference. So as a criticism of the ACLU, Mr. Jacko’s argument fails.

As a more general point, the Radical No Difference View is much more radical and fringe than the Modest No Difference View. It’s still worth thinking through the normative implications of Radical No Difference. But since that is the more fringe view, it’s less relevant to the state of the debate over trans athletics as a whole.


  1. Mister Jacko

    Dear Obtuse Angle:

    Thank you for this critical engagement. I hadn’t considered that we Diabloggers might blog against one another, but I like the idea. It helps show that we all have quite different views and do not blog in one voice, just as our logo is meant to suggest.

    I’m not sure yet, though, that your attack has hit its target. Let’s discuss.

    You say: “as a criticism of the ACLU, Mr. Jacko’s argument fails.” I did mention the ACLU in passing, but it was not my aim to criticize it for what I took to be its position. What I wrote was, “But a growing majority, it seems, including the ACLU, dismiss these concerns as illegitimate or at least outweighed by the moral need to accommodate trans athletes in their chosen gender.” I linked to an ACLU webpage there. I read that ACLU page as supporting what you call here the Radical No Difference view. What I went on to say was not a criticism of what they said, but a question I thought it would be interesting to explore: should they not have good reason to accept the elimination of sex categories in athletics? And if not, why not?

    But you stop me before that because, you say, the ACLU supports your ‘Modest No Difference View’, not your ‘Radical No Difference View’. You don’t mention or link to any source for your claim. Has the ACLU, in fact, made clear that it will not support self-identified trans athletes who choose not to undergo any medical transitioning? If so, could you please provide a source that shows that it would refuse to take up the case of such trans athletes?

    My basis in making that incidental comment about the ACLU was the webpage I linked to: https://www.aclu.org/news/lgbt-rights/four-myths-about-trans-athletes-debunked/

    That webpage does, it’s true, quote one Dr. Joshua Safer, who suggests that trans women who meet the NCAA standards have no clear athletic advantage. Incidentally, I understand that that claim is, at least, controversial. But more important, I see no indication on the webpage that the ACLU commits itself to the NCAA standards mentioned by Safer, or even that it commits itself to any limitation on the trans athletes it supports in their wish to compete in women’s divisions.

    The ACLU’s webpage instead discusses a number of reasons for treating trans athletes, tout court, as their self-identified gender in assigning them to the men’s or women’s category. Among those reasons:

    – ‘Gender policing’ is bad because it involves invasive tests and accusations of being ‘too male’, which can be hurtful to transgender athletes;

    – Keeping trans athletes out of women’s competitions will reinforce stereotypes that women are “weak and in need of protection”;

    – Including trans athletes as members of the gender they identify with will “promote values of non-discrimination and inclusion among all student athletes”, while excluding them will “encourage divisiveness by policing who is ‘really’ a girl;”

    – Trans women already face so many disadvantages in life that it makes little sense to worry about their having an advantage in sports;

    – The psychological health of trans people often depends on the viability of successful transitioning, but this can be threatened by being made to compete in a category that does not match the gender identity one affirms.

    All these reasons seem to apply just well to trans athletes who have not chosen to undergo medical transitioning as they do to those who have. The ACLU webpage I linked to makes it quite clear that the view of gender it endorses is a function of the convictions and affirmations of the person in question, and does not at all depend on testosterone levels or any other biological factor: “Girls who are trans are told repeatedly that they are not “real” girls and boys who are trans are told they are not “real” boys. Non-binary people are told that their gender is not real and that they must be either boys or girls. None of these statements are true. Trans people are exactly who we say we are.”

    To conclude: nothing I see on the ACLU webpage I linked to suggests that the ACLU maintains what you call the Modest No Difference View, and many things there suggest instead that the ACLU is apt to support the Radical No Difference View.

    If the ACLU does turn out to maintain your Modest No Difference View, and has a policy of not standing up for trans athletes who have chosen to refrain from medical transitioning, then I will be happy to stand corrected. But then a further question would present itself: why *shouldn’t* the ACLU support non-medically-transitioning trans athletes, given the reasons it presents on this webpage? Don’t all the same considerations apply? Why should trans people who don’t feel comfortable undergoing medical transitioning have to refrain from athletic competition in order to avoid being thrown into a sex category they explicitly reject?

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