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Legal Commentary

: Althouse

"The only dependable test for gender is the truth of a person?s life, the lives we live each day."

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"Surely the best judge of a person?s gender is not a degrading, questionable examination. The best judge of a person?s gender is what lies within her, or his, heart."

When we need to categorize people by sex/gender ? for the Olympics, for example ? what is the right way to do it? The quote above is from an op-ed by Jennifer Finney Boylan.The quote struck me because what's in someone's heart seems to me to be a terrible test, because it demands another test ? the test of what is in a person's heart ? and people lie. Certainly, some athletes will lie.

But even if we could accurately see the contents of your heart the way we can see the contents of your pants and your chromosomes, would we want your subjective beliefs to determine who you get to compete against? It's one thing to leave people alone as they live their private lives, quite another to set up an athletic competition where there will be winners and losers.

How does Boylan propose to look into hearts?

A quick look at the reality of an athlete?s life ought to settle the question.
Absurd! Where is this picture of "the reality of an athlete's life" for us to take a "quick look" at? And even if there was such a picture and it could not be faked, what aspects of life are female and what are male? You can't answer the question without using sexist stereotypes that are not only offensive but have very little application to high-level athletes. Obsession with sports and competition is stereotypically male. If we took Boylan's laughable test seriously, there'd be no athlete left in the female category.

Boylan has an alternate conclusion:

Maybe ... Olympic officials have to learn to live with ambiguity, and make peace with a world in which things are not always quantifiable and clear.

That, if you ask me, would be a good thing, not just for Olympians, but for us all.

It's fine to recommend that we appreciate ambiguity, but athletic contests need rules and those who enforce them have to make decisions. It's funny how Boylan wants us to believe in her "quick look" at lifestyle test but wants us to accept that biology is endlessly ambiguous.

There may be some difficult cases at the biological level, but rules should be devised to deal with those cases fairly. As Boylan notes, the Olympic rules permit individuals who have gone through sex reassignment surgery to compete as the sex the surgery has modeled them after. Whether that rule was a good idea is another question. It seems to be accepted because the treatment degrades athletic ability, so the former man does not have the usual advantage a man would have competing with women. But there is no reason to devise a rule that allows men to compete with women because they feel like women.

***

Boylan is the author of ?She?s Not There: A Life in Two Genders,? described by Booklist here:
In this autobiography, she details her lifelong struggle with her burgeoning femaleness and the path she followed to become a female, both physically and mentally. For 40 years, the author lived as a man, seemingly happy and even marrying a woman and fathering two children. At a certain point, though, she realized that she couldn't suppress her desire to live as a female and so eventually went through all the steps to become female, including sexual reassignment surgery. There is something troubling about Boylan's lighthearted tone, and while she hints at it, there is no really clear depiction of the havoc this transition must have wreaked on her married life (Boylan's wife was clearly devastated) and on her children (who at times refer to her as boygirl or maddy).

Full post as published by Althouse on August 03, 2008 (boomark / email).

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