Gender Indiscrimination

Steve Phillips has recently written in this blog about gender dysphoria and our culture’s struggle to respond consistently to it. Please see here for that discussion. North Carolina recently passed a law requiring individuals to use the bathroom of their biologic sex rather than their self-identified gender. This has resulted in claims of gender discrimination and gender phobia against those who do not wish to be in the same shower or bathroom with someone of the opposite biological sex, regardless of how that someone chooses to self-identify his or her gender.

In early June, a young high school student in Alaska, whose biological sex is male but who identifies as a female, recently placed 5th and 3rd place in the girls 100 meter and 200 meter state high school track meet. Interestingly, the cries of discrimination focused almost exclusively on the claim that this was unfair to the other women running in the same race. Said differently, there have been extremely few claims of gender discrimination or gender phobia against those who do not want to be in the same sporting event with someone of the opposite sex, regardless of how that someone chooses to self-identify his sex.

Why is there a difference?

Notice that in both cases, opposing sides agree that males and females are different, deserving different bathrooms and different sporting competitions, the latter a successful result of Title IX federal regulations beginning in the 1970’s. Both sides seem to agree that the issue is how to discriminate who belongs in which group. In both examples, one side argues that subjective self-identification is a sufficient claim to gender group membership while the other side demands objective biological criteria. So who is right?

And why is the girl who finished 6th in the 100 meter Alaska High School Track meet less likely to be called bigoted if she complains about having to race against the boy who identifies as a girl as when she complains about having to share the shower with him after the race? If the difference is one of fairness/justice in public sports competition, it is unclear why we should elevate public sports competition above private social interpersonal contact in terms of our bigotry tolerance.

But let’s say we do. Both the IOC and the Women’s Sports Foundation have position statements that effectively argue that the issue comes down to objective biological criteria, namely testosterone levels. At least in competitive sports, subjective self-indentification is not a sufficient claim to gender group membership.

But what about public bathrooms? Curiously, the Justice Department is using Title IX, that landmark federal regulation banning sex discrimination by schools that receive federal funds, to effectively require schools to be rather gender indiscriminate. Effectively, they are requiring schools to allow students to use sex-segregated bathrooms based on their self-identified gender or move away from sex segregated bathrooms altogether. As Jeannie Suk recently stated in The New Yorker: “The discomfort that some people, some sexual-assault survivors, in particular, feel at the idea of being in rest rooms with people with male sex organs, whatever their gender, is not easy to brush aside as bigotry. But having, in the past several years, directed the public toward heightened anxiety about campus sexual assault, the federal government now says that to carry that discomfort into bathrooms is illegitimate because it is discrimination. [emphasis mine]”

It seems that our culture’s response to this issue remains incoherent.

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