Legislating Nature

The recursive gender politics of transgender sports and restrooms bans

Photo by John Arano on Unsplash

If the stakes weren’t so high and the potential consequences not so dire, I would laugh at the most recent efforts to exclude transgender athletes from school athletics. In at least seven states, reactionary legislators have introduced bills to bar transgender athletes from participating on school sports teams that match their gender identity (rather that the sex the were labeled at birth). As with the notorious “bathroom bills” of 2017, these latest efforts are aimed at mollifying a conservative political base during a presidential election year.

From Nixon’s “southern strategy” to George W. Bush’s call for a constitutional amendment banning same-sex marriage, conservative politicians haven’t hesitated to target racial, gender, and sexual minorities to gin up their base and divide the electorate in big election years. But also similar to earlier legislation, the current bills aim to legislate the very sex differences proponents claim are the “natural” basis and justification for sex-segregated restrooms and school athletics.

Perhaps most surprising: some female athletes are at the forefront of attempts to ban transgender athletes from the very sports that structurally discriminate against women.

Finnish outhouse. Photo by Chandana Ban on Unsplash

The performative ‘concerns’ of conservative arguments against transfolk using the bathrooms consistent with their gender identity are easily refuted with data and common sense. After all, restrooms and indoor plumbing are relatively modern amenities, and still not the norm in many parts of the world. But even in countries with industrial economies, prior to their standardization over the twentieth century, everyone used gender-neutral outhouses or similar ‘conveniences’ to relieve nature’s call.

Nevertheless, what then passed for civilization didn’t seem to crumble and fall.

Similarly, today most everyone living in a developed society has at least one gender-neutral restroom in their home and seems to manage just fine.

Arguments that women would be at risk of sexual violence from “men in dresses” using the ladies room have no basis in fact. On the contrary, transgender people are much more likely to be the victims of violence in restrooms when they’re forced to use restrooms inconsistent with their gender identity and gender presentation.

Most everyone’s activities in a restroom are basically the same: urination, defecation, and (hopefully!) sanitation. Changing diapers and changing clothes also seem like frequent restroom activities. Primping is probably also a gender-neutral restroom activity, though may be hard for some men to admit. Maybe some other, occasional activities like vomiting or sex, but hardly anything that would seem to require separate facilities for different sexes or genders. At least they didn’t until about 100 years ago.

Gender-neutral/unisex restrooms with accessible, lockable stalls would provide all the services, security, and privacy critics use to justify current sex-segregated restrooms.

When carefully considered, single-sex restrooms are revealed as a wasteful and completely unnecessary reification of outdated beliefs about sex and gender — the idea that females and males are essentially different — rather than a reflection of real biological differences between “the sexes.” Rather than responding to any real sex differences, sex-segregated restrooms perpetuate the fiction that humans are sexually dimorphic, contribute to differences in social status between women and men, and mystify “the other sex” by obscuring its restroom customs and habits.

But the hysteria that surrounds this issue, and the violence that greets those deemed ‘out of place,’ speaks to the importance society places on the requirement that everyone possess a clearly-identifiable, immutable gender consistent with their biological sex, even if the very existence of transgender people prove that such a thing does not exist.

Photo by Chris Leipelt on Unsplash

Similar rhetorical gymnastics seem at work in legislation banning transgender athletes from school sports. Such efforts are grounded in the idea that sex-segregated sports teams are merely a logical response to physical differences between female and male athletes. (Note that an unquestioned and unexamined belief that human sex is binary is foundational to any justification for sex-segregated athletics.)

Usually this claim narrows to arguments about the hormone testosterone and the (supposed) advantages it confers on male athletes. Because transgender women are presumed to have been exposed to greater quantities of testosterone during puberty and may continue to possess organs able to produce testosterone even if they’ve transitioned to a different gender, their bodies supposedly give them an unfair advantage when they compete against other women athletes.

But there are several problems with this argument.

First, both female- and male-typical bodies contain some amount of testosterone and in different quantities at different times over the life course. Testosterone is not the “male” hormone.

Second, there is no unidirectional relationship between testosterone and athleticism. Though its connection to increased muscle mass and strength seem pretty clear — just ask any anabolic steroid-using bodybuilder — endocrinologists have found in animal studies that competitive environments increase amounts of testosterone in the body which in turn affects aggressive and confrontational social behavior. There’s a reciprocal (not unidirectional) relationship between testosterone and the physical and mental qualities we associate with athletic competitiveness.

Though males’ supposed greater amounts of testosterone, with its effects on physical athleticism, is used to justify single-sex athletics, it’s also likely a lifetime of competitive sports activity (as is much more common with males than females) and male sports cultures contribute to higher levels of testosterone that in turn contributes to more athletic male bodies. In fact, the biologist Lynda Birke has found that sex differences in physical measurements we associate with athleticism — muscle mass and strength, hemoglobin levels, blood-oxygen capacity, lung capacity — virtually disappear in similarly trained female and male athletes.

So, the argument that greater amounts of testosterone justifies sex-segregated sports isn’t supported by what we know about hormones and their effects on athletic bodies. They certainly don’t justify sex-segregation of athletics involving prepubescent children — like pee wee football, little league baseball, and children’s soccer — where testosterone differences between girls and boys are negligible or non-existent. As with single-sex bathrooms, these sex-segregated athletics may be producing some of the very differences in athletes’ bodies used to justify sex-segregation.

Early-twentieth Century footballers. Photo by Library of Congress on Unsplash

But anyone familiar with the history of sports shouldn’t be surprised to hear that. Although the different sports have unique and complicated histories, several of today’s most popular team sports become institutionalized during roughly the same period: the few decades either side of the year 1900. During the second half of the nineteenth century, baseball, basketball, and football all become formalized as organized amateur and professional sports on a nationwide basis in the U.S.

This is also the period when these sports become intentionally intertwined with American national purpose through symbols of nationalism and patriotism that continue today with singing of the national anthem, presidential first pitches, and military aircraft flyovers of major sporting events.

As a part of what contemporaries would have called “physical culture,” organized men’s team sports were promoted as a response to the supposed “crisis of masculinity” that plagued men living in an increasingly urbanized and industrialized society. Where once American men proved their manliness through the physical activities of daily life on the farm and at the frontier, critics feared the emergence of middle-class business and government bureaucracies were causing a “softening” of American men — especially white, middle-class, Anglo-American men — potentially weakening the male sex, the nation, and the White race.

Haunting these fantasies was the specter of working-class men of color whose continued contact with hard physical labor guaranteed their manliness and might enable them to supplant White middle-class men enervated by office “brain work” and softened by the comforts of the feminizing home. Strongly implied, when not stated explicitly, was the threat “brutish” working-class men posed to White womanhood, the latter imagined as frail, delicate, and unable to physically protect herself.

The new presence in the public sphere of women office workers and organized women’s groups like suffragists demanding the vote and the Women’s Christian Temperance Union also threatened to dilute male political power and social prerogatives, and erase the differences between sexes — long considered the basis of the Victorian social order. The associated masculinization of some forms of women’s day wear starting in the late nineteenth century offered visual and material evidence supporting men’s fears that the lines between “the sexes” were becoming unacceptable and uncomfortably blurred.

Cue the reactionary reactionary gender conservatives.

As a defense against the withering effects of modernity and women’s efforts that threatened to erase distinctions between the sexes, critics promoted the invigorating effects of amateur and professional athletics — calisthenics, bodybuilding, boxing, and outdoor activities like walking, hiking, and climbing. And it’s not accidental that organizations like the YMCA, Boy Scouts, and Indian Guides that got boys and young men into The Great Outdoors, and the modern Olympic Games which nostalgically linked modern sports to ancient antecedents, date to this same period.

Modern sports were explicitly created and seen as a “man-making” activity

As a result, high school, college, amateur and professional sports rapidly became a highly visible aspect of turn-of-the-century popular men’s culture. Even if middle-class men couldn’t participate directly in increasingly professionalized team sports, they could participate symbolically as fans, spectators, and bettors. Much of the apparatus of today’s sports entertainment industry— teams, leagues, stadiums, sports media, sponsorship, farm teams, etc.— originates from this period in American history. And they could undertake their own forms of physical culture to counter the effects of Modernity on their, and their country’s, “manliness.” Grrr!

My point is that sex-segregated athletics in their modern conception were explicitly created, institutionalized, and understood as “man-making” activities. They were envisioned and designed to produce and display physical differences between female and male bodies.

Among other things, turn-of-the-century organized sports — especially team sports — were created and understood as a kind of cultural “factory” for the production of ostensibly natural physical differences between the sexes.

14-yr. old striker and suffragist, Flora Dodge “Fola” La Follette, and Rose Livingston during garment strike, NYC, 1913. Glass negative from the George Grantham Bain Collection, 1913. Library of Congress Prints & Photographs Division. https://www.loc.gov/resource/ggbain.12397/

Notable in today’s efforts to ban transgender people from bathrooms and sports teams is the focus on transgender women in women’s restrooms and girls athletics. Transgender men are rarely mentioned in these contexts or viewed as cause for concern. (Just so we’re on the same page: a transgender woman is a person who was labeled male at birth but identifies as a woman and may have a feminine gender presentation.)

That’s not accidental. Much of the argument for banning transwomen rests on imaginary threats to women — by which proponents of legislative bans mean cisgender women: those who were labeled female at birth and continue to identify and present themselves as women.

With bathrooms, it’s the imaginary specter of the predatory “man in a dress” sexually assaulting or attacking women in restrooms. With sports, it’s female athletes unfairly forced to compete against “physically superior” males who claim to be women. In both cases, women are envisioned as under threat and in need of physical and legal protection.

And that should raise alarms, especially among women!

There’s a very old history of patriarchal power moves justified by imagined threats to women that caution us against what someone once termed “oppression through exaltation” — the seemingly-benevolent figuring of women as spiritually superior but fragile creatures in need of men’s protection from other men. This triangular rhetorical structure — men protecting women from men — appears over and over during the era of European and American imperialism and was often prelude to military invasion, colonization, subjection, and even genocide.

It was the same logic used to justify the mass extermination of Native Americans and the lynching of Black men in the U.S. South — that women were under threat (from men) and in need of protection (by other men). And it’s resurrected as needed to justify modern imperialism, as when First Lady Laura Bush went on a media tour lamenting the conditions of Afghan women under the Taliban in order to justify the U.S. invasion of that country in 2001.

Then, as before, women’s oppression at the hands of men did not change, only the names of their (male) oppressors.

A similar colonizing logic is at work in efforts to ban transgender women from women’s restrooms and athletics. Though proponents might succeed in their stated goals, the two-tiered apartheid system of sex-segregated athletics, in which women are viewed and treated as inferior athletes and competitors, will persist even if transgender athletes are not allowed to compete.

And sex-segregated restrooms will continue to be perceived as mysterious and unknowable spaces that contribute to the image of women as delicate creatures requiring protective spaces (invariably created by men).

Both are part of a larger social structure that rests on the cultural fictions that humans are a sexually-dimorphic species and that one’s social role and status are determined from birth by biological sex.

And the persistence of that fiction usually hasn’t benefited girls and women.

Photo by Jeffrey F Lin on Unsplash

One of the recurring features of the increased visibility of transgender people and their work for full social inclusion is how their existence makes visible the arbitrary nature of sex-segregated social institutions, practices, and spaces, like restrooms and sports teams. Transgender people, by definition, cross boundaries and in the process make those boundaries visible and reveal their arbitrary nature.

For that reason, they can be subject to the most horrendous physical violence — often in restrooms where they can be deemed “out of place.” There is no rational justification for maintaining sex-segregated restrooms except for manufacturing such an air of mystery around bodily elimination that it requires sexually-differentiated architectural spaces and plumbing fixtures.

And, if you’ll pardon the pun, that’s crap.

With athletics, transgender bodies reveal the arbitrary nature of competitive physical contests designed to cater to physical extremes typical of just one sex, and the unjustified exclusion of bodies that are similarly athletic but of the “wrong” sex. After all, does anyone seriously think Megan Rapinoe could not successfully compete with the best men’s World Cup soccer players? Or that Serena Williams at her peak couldn’t play circles around the best professional men’s tennis players? And the inanity which is sex-segregated curling teams (or equestrians or archers or divers or figure skaters….) isn’t even worthy of analysis.

So let’s stop pretending we’re sex-segregating sports because of essential differences in female and male bodies that naturally and inevitably make men “better” at sports. Peak male athletes are “better” athletes because we’ve created types of sports that cater to the extremes of male bodies, they’ve been raised in a culture of male athleticism, and we actively exclude any female athletes that could give male athletes a run for their money in “men’s” sports. When competitive female bodies pose a threat to unjustifiably sex-segregated athletics, the rules (and laws) change to keep them “in their place,” often by citing “naturally-occurring” differences between the sexes.

In other words, the rules and laws governing sex-segregated sports, restrooms, and other social practices/spaces are producing some of the very sex “differences” they claim to only be reflecting.

They’re not responding to nature; they’re legislating it.

At root, the sex-segregation of bathrooms and athletics, and active exclusion of transgender people in restrooms and on teams that align with their gender identity, expresses beliefs about biological sex and gender that are simply not supported by evidence.

They reflect the very old, tired, and deeply conservative belief that one’s gender and, hence, one’s position in society, is dictated by one’s biology (aka biological determinism). As such, trans-exclusionary bathroom bills and athletic bans are closely aligned with some of the most regressive and dangerous ideas in modern Western history: eugenics, scientific racism, and social Darwinism.

The disingenuous and shameful pretense that transgender bans are designed to “protect women” in sports and restrooms distracts from their reliance on biological determinist arguments that have long been used to deny women’s full and equal participation in society, politics, and the economy.

We need to recognize and reject trans-bans for what they are: sexist and misogynist attempts to subordinate women through the scapegoating of transgender people, especially transgender women. And women — all women! — should be standing together against this transparent effort to return them to the status of second-class citizens.

Michael J. Murphy, PhD, is Associate Professor of Gender & Sexuality Studies at the University of Illinois Springfield. He is the author of many book chapters, and encyclopedia and journal articles. Most recently, he edited Living Out Loud: An Introduction to LGBTQ History, Society, and Culture (New York: Routledge, 2019). He tweets @emjaymurphee.

Professional homosexual. Professor. Writer. Scholar. Activist. Husband.

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