Thread by @Miroandrej

Rachel McKinnon/Veronica Ivy's latest: "In deciding whether trans and intersex women should be allowed to compete as women, who has the burden of proof in the debate? The answer is clear: those who seek to exclude." No. If you want to change the status quo, the burden of proof...

...is on you. Secondly, here is the usual attempt to muddy the waters by including intersex people (whose sex characteristics are atypical) in the debate. We know the sex of transwomen and transmen. They are unhappy with the sex they were born with.

docs.google.com/document/d/12Q…

"The International Olympic Committee (IOC), the Court of Arbitration for Sport (CAS), and the UN Human Rights Council (UNHRC) all clearly state that there is a human right to participate in competitive sport." No. What the IOC and CAS say about human rights and sport has...

... has no bearing on international human rights law. I cannot find any mention by the UNHRC that sport is a human right. Instead, there is the idea that you can use sport to further human rights in countries where these are not (fully) upheld. And RM...

ohchr.org/EN/HRBodies/HR…

... doesn't not provide any citation for her claim about the UNHRC. What the IOC and CAS are saying is mere hyperbole.

"For the purposes of sport, trans and intersex women are considered fully female. Inclusion is the default." Not in UK and Australian law.

Australia lists sex, gender identity AND intersex status as grounds for lawful discrimination. [I think intersex people deserve to be treated separately, as this is much more complicated.] Contrary to McKinnon, inclusion is not the default.

And this is just from the first page of McKinnon's paper. What other undigested cogitations await us in the rest of the paper? More to come...

The legal recognition (as female) is merely a courtesy. The law creates a legal fiction in order to accommodate trans people. But the law (in the UK) insists on exemptions in certain areas. One is sport. These exemptions are proof for the underlying legal fiction. If McK...

... were right (transwomen are legally indistinguishable from women), then the exemptions wouldn’t make any sense. McK’s problem is that she believes the legal fiction is true.

theelectricagora.com/2019/10/14/leg…

So, 1. the human rights argument has no legs. 2. The law in the UK and in Australia recognises that there is a difference between sex and gender, and because of this exclusion of transwomen from the female category in sport is lawful. The IOC values inclusion higher than...

fair play and the safety of the competitors. But even the IOC treats them differently. For example, they have to declare that they will continue to compete in their declared gender identity for the next four years. There are further conditions (2.1-2.4):

stillmed.olympic.org/Documents/Comm…

In contrast, World Rugby recognises that your sex affects fairness and safety. Your gender identity is not a free pass to competing in the female category. I would argue that, particularly in contact sports, this should apply at all levels.
tandfonline.com/doi/full/10.10…

There is no 'human' right to sport, because playing sports is neither important nor urgent. There may be an ordinary right to sport like the right to eat ice-cream or the right to join a dramatic society. Trans athlete do have this right, but it doesn't follow from this ...

... that they have the right to compete in the sex category which aligns with the gender-ID. According to McK's logic the legislation in the UK and in Australia (allowing for exclusion from the female category) would be an explicit violation of human rights. And this is nonsense.

McKinnon ignores how the quote from the IOC charter continues. It ends in the words 'fair play'. This is a constraint on the unqualified inclusion of transwomen. And that's why the IOC makes demands on transwomen which don't apply to female athletes.

McK. writes: 'Governments and sports organizations make no distinction between ‘sex’ and ‘gender.’ The lawful discrimination between women and transwomen by the IOC and the exemptions in UK legislation tell us otherwise. McK's claim is wishful thinking.

McK: 'CAS has repeatedly ruled that intersex--and by extension trans--women have a right to sport'. Well, nobody is denying this. But it doesn't follow that TW can compete, without any constraints, in the female category. The IOC makes them reduce their testosterone levels.

World Rugby doesn't deny that TW have a right to play rugby either, but not in the female category, because there is an increased risk (20-30%) of injury for the other players. And then there are the physiological advantages of TW to be considered.

Need to take a break now - shaken by the paucity of the arguments.

Brief interlude on style in writing: you should never have two words, which are identical or similar, in close proximity to each other: "Sailors’ focus seems to be entirely on the arguments--and her rejection thereof--of so-called ‘Identifiers.’ " Try reading it out loud.

"The IOC does not have biological criteria for who counts as male or female: they use legally recognized sex." Yes, the IOC go by legal status, but it is more nuanced. Biological criteria are implicit, because the IOC treats transwomen differently. Measuring T is very biological.

Footnote 13: 'Trans women, in many jurisdictions including the US, Canada, Germany, UK, etc. are medically and legally considered female.' Yes, they are 'legally' female, but using the word 'medically' female is an equivocation (calling two different things by the same name)...

'Medical' or 'medically' relates to the science of medicine, and by implication to the physiology of the patient. Women are treated for different illnesses, they react differently to medicines (dosage), their stroke symptoms differ from men, etc. McK. believes that she is...

... also 'medically' female, because her medical records say so. Now, this is truly childish. Prior to transitioning her medical records would have listed her as male. But even now, provided her physician is a responsible practitioner, there will be...

news.sky.com/story/trans-cy…

... a note on her record saying that she is a 'transwoman', so that people will address her accordingly. But her medical treatment will differ from that of a biological woman. She is not eligible for smear tests and other preventive tests (e.g. for breast cancer) which are...

... designed for females. In the medical sense, transwomen are not women. McK. is only legally female, but claiming that she is 'medically' female may cause confusion among the uninformed. This could also lead to bad outcomes in medicine if people believe they have changed sex.

"The concept of ‘physiologically male’ but ‘socially female’ is nonsensical. Indeed, it is transphobic to refer to trans women as male in any sense. What does it mean to be ‘physiologically male’? There are 6’4” cis women. So being tall can’t be it. There are very strong...

... cis women, too." Well, if there are no physiological differences, then we could collapse the sex categories in sport. We would have one big open category. But McK wants to maintain the sex categories, which are based on different physiology. Her reason for being eligible...

for the female category in sport must be self-ID, or perhaps legal recognition (or that her medical records say so). But this would introduce an new criterion for eligibility into sport. Some competitors qualify because of their biology, others because of self-ID or legal status.

Such an inclusion policy, without any attempt of mitigation for physiological advantages, would be category defeating: it would defeat the reason for having categories. A bad side-effect of this policy: girls/women would be discouraged from taking up sports: "What's the point?"

McK's main target is the philosopher of sport, Pam Sailors: 'any arguments based on physiometric comparisons between men and women are also irrelevant: the matter is not about including men in women’s sport, it is about whether it is fair to exclude some women from women’s sport.

McK's strategy here is to side-step the issue of physiological advantages, which males on average have, by declaring that transwomen are women (or female) of course. This little trick has a name in philosophy: 'definitional stop'.

By employing a 'definitional stop' you can define a problem out of existence. The great British legal scholar, H.L.A. Hart, coined the phrase in 1959, in his Presidential address to the Aristotelian Society - the same society which invited ...
jstor.org/stable/4544619…

Kathleen Stock to give a talk. Now, isn't that a nice link! 'The Aristotelian Society, founded in 1880, meets fortnightly in London to hear and discuss talks given by leading philosophers.' KS's recent OBE drove on guy to call her a 'subpar' philosopher - poor chap!

@Docstockk

McK basically misrepresents Pam Sailor's position, and, ironically, accuses Sailors of using strawman arguments. No need to discuss this here - too tedious.

McK. discusses the 'medically female' claim: 'Trans women are also regularly medically recognized as female: my medical records all list ‘female’ with no asterisk or modifier.' The change of medical records is merely a consequence of the change of legal status, which ...

... in itself is based on a legal fiction. But as I have said, if the medical records of a transperson don't give any indication of their actual physiology, this could lead to bad outcomes in treatment, say, if they have been in an accident and are unconscious. But McK.'s way ...

... of looking at it is consistent with the view that sex is socially constructed: biology doesn't matter. If the medical records say 'female', and you believe it, that makes you female. There is something naive or childlike about this view, but there is a philosophical problem..

If the legal and medical records make you 'female', what does 'female' refer to? This is what we call a circular definition.

@TomasBogardus

McK. definitely has it in for Pam Sailors. Pam's paper from 2020 must have hit home. The funny thing is, I am a member of a philosophy community on Facebook, where we share papers which are difficult to get hold of. I remember McK. asking for Pam's latest paper...

... in this ungracious fashion: 'Can somebody send me this awful paper.' McK had condemned the paper before she had even read it.

tandfonline.com/doi/full/10.10…

Sorry about the length of this thread, but I am only on page 7 of McK's forthcoming paper. There is more fun to come.

McK argues that the Olympics haven't been dominated by trans athletes and she herself loses most races. She is implying: 'Don't worry, transwomen are not threatening your podium places.' But the reason for the lack of domination is that state legislations have only recently...

... given legal recognition to transgender people. Furthermore, we have seen an exponential rise in young people who identify as trans. This will sooner or later have a big impact in female sports. [At present, we can already see an impact in high school sports in the US.]

If an event that could cause harm (less uptake in female sport) hasn't happened yet, this doesn't mean that we should ignore it. It is important to discuss these issues and formulate policies. The IOC is behind the curve, they only focus on T reduction. link.springer.com/article/10.100…

Why is it important to frame the debate in human rights terms (remember: Trans Rights are Human Rights!)? It strengthens your position; it gives you more firepower. Human rights are not just 1. important and 2. urgent, they are also commonly characterised as 3. ‘absolute’.

This (no. 3.) means they don’t admit of violations or exceptions. Ordinary rights can be curtailed. You can smoke in your back garden, but in many countries you do not have the right to smoke on public transport, in cinemas and in libraries. You can spit at home, but you may...

... not spit in public in Singapore. These rights are trumped by the right to health (and safety). Similarly, because human rights are absolute, they trump ordinary rights. The right not to be tortured or not to be imprisoned are such human rights, they may not be violated.

If the right to sport were a human right, it could not be curtailed and it would trump other, ‘ordinary’, rights (women’s rights). So the idea is: if transwomen have a human right to sport, then nobody (women) can interfere with this.

As I have explained before, the human rights argument has no legs [more discussion with a fervent supporter of 'sport as a human right' here:

https://twitter.com/kay314159/status/1348400906874847235?s=20

].

But let’s imagine that we all have a human right to sport. What follows from this? Nothing controversial: everyone, including trans athletes, can play sports. But it doesn’t follow that transwomen belong in the female category in sport – this is a different claim.

Trans activists who run with the human rights argument overlook that if transwomen have a human right to sport, so do women. Female athletes have a right not compete against male-bodied persons in their category. What do we have here? A rights clash.

This is something trans activists try to avoid, because it threatens their slogan that ‘trans women are women’. That slogan implies that there cannot be a rights clash, because TWAW (remember the ‘definitional stop’?). This problem persists...

... even if we frame the debate as an ‘ordinary’ rights clash. Then, transwomen’s ordinary right to sport would clash with the ordinary rights to sport of women. So transwomen athletes would have to show why their rights override women’s right, and that wouldn’t be easy.

What is interesting is that the IOC curtails the rights of transwomen to compete in the female category (T reduction, etc.), and World Rugby bans them from the elite level altogether. This strongly suggests that we are not dealing with an absolute right (=a human right).

Furthermore, the legislation in the UK and in Australia permits exclusion of transwomen athletes from competition. If McK were right, then the laws of both countries would openly violate human rights – and this is nonsense.

I am surprised that McK doesn't mention the Yogakarta Principles (2017; 38, I & J), because they do mention sport. [She is usually quick to rebuke others for their lack of scholarship.] The Yogakarta Principles (2017; 38, I and J) mention sport.

yogyakartaprinciples.org/wp-content/upl…

According to these principles the state has an obligation to ‘[e]nsure that all individuals can participate in sport in line with the gender with which they identify’. But there is a qualification: ‘subject only to reasonable, proportionate and non-arbitrary requirements’.

As we have seen, according to UK and Australian legislation it can be reasonable and proportionate to restrict the participation of transwomen in the female category. Secondly, the Yogakarta principles have not been adopted by any UN body. So 'humans rights' won't do the trick.

This point is worth coming back to (p. 9). For McK, being 'female' means 1. identifying as female and 2. having documents which state that you are female. But what does 'female' in 1. refer to? And what does 'female' in 2. refer to? The answer for 1. is: your idea of what it...

...might mean to be a woman. This is very likely to be off the mark because you were not socialised as a girl/woman and you lack the accompanying phenomenology of experiencing yourself as a female sexed body. [More here: theelectricagora.com/2019/12/22/mor…]

The answer for 2. [what does 'female' refer to in the documents of a transwoman?] is: 'female' here refers to a legal fiction. The state will treat you AS IF you were biologically female, as if you had been born in a female body. Unfortunately, when the law creates...

...a legal fiction, it doesn't make this explicit, because everyone involved knows this. For example, everyone knows that a 'legal person' (=a corporation/company) is not a natural person like you and me. For the purposes of contract law we have invented the 'legal person'.

But a company is not a real person. Legal fictions don't normally cause any confusion, but with transgender legislation, some like McK, have started to believe that the fiction is true. So, the answers to questions 1. and 2. both fail to establish that McK is really 'female'.

This means that Pam Sailor's point still stands: McK. is merely self-identifying into the female category. The changes to passport, birth certificate, medical records, driving license, etc. don't prove anything, because they are a consequence of the underlying legal fiction.

I am now halfway through McK's paper. Here a calming image to keep the blood pressure low.

McK is trying to counter the claim that transwomen compete “in the protected categories of their choice.” According to McK, it's not a choice, there is no other option. She is not permitted to compete in the men's category. This justification brings up interesting questions...

...about the purpose of sport/competition. My view is that sport aims to give us a 'fair measure of performance' (on the day). If transwomen, on average, have a considerable advantage over women, due to their male physiology, then, I could just ignore this and say:

"My racing license...says 'F', so I have no choice but to compete in the female category." There are two counters to this: 1. If you ignore this advantage and compete anyway, you undermine the purpose of sport. It is not a fair measure of performance any more.

2. What good is a win or a good ranking based on having gone through male puberty? Who among the competitors would enjoy standing on the podium, knowing all this? Keep in mind that, unlike doping cheats, McK is not doing it for prize money or endorsements...

... this really would be an incentive to do it. She is not cheating, because her sports governing body permits her to race. But she is wilfully blind, to ignore the damage this does to the institution of sport. And, as I said, such wins/rankings are hollow. So the solution...

...to her dilemma would be not to race competitively. There are plenty of other forms of physical recreation. Competitive sport is not absolutely necessary; it's not like life-saving medicine. We can live without it. I haven't done anything competitive in 30 years and I am fine.

Of course McK denies that transwomen have a physiological advantage (for all kinds of unconvincing reasons - I might have to come back to this, depending on the rest of her paper). This denial makes it possible for her to ignore the two counters I have proposed to her dilemma.

Here some light relief:

https://twitter.com/sarfrazmanzoor/status/1347984909743304706?s=20

For the first time, while reading this paper, McK made me laugh. She discusses Pam Sailor's 'nondomination' argument:

'According to this argument, if trans and intersex athletes really had an unfair competitive advantage, they would be dominating their sports, but the fact that they do not always win means that fears about their inclusion in the women’s category are unfounded.' = McK's view!

McK's reply: 'First, I can’t find anyone seriously claiming that hyperandrogenic intersex women or trans women have no advantage at all. The truth is we do not know.' But she did say earlier: Don't worry, transwomen aren't dominating the Olympics and I often lose.

In a paper from 2020 (McK+Conrad: 123) she claims that the differences within a sex are greater than the differences between the sexes. [This is an empirical question (variation) which I can't decide.] McK's claim is that the large variation within a sex class makes it fair...

for transwomen to compete against women. So she herself claimed that there is no advantage. Here she says: 'I can’t find anyone seriously claiming' this (that there is no advantage). What made me laugh was the following sentence: 'The truth is we do not know.' Which is it?

These two claims are in tension. Philosophy papers are usually dry, but this gave me a good laugh.

Of course, we do know that there is a considerable advantage for people who went through male puberty [see the link at the beginning to Hilton & Lundberg, 2020; also Jon Pike, 2020].

tandfonline.com/doi/full/10.10…

I need to come back to a previous point [

https://twitter.com/Miroandrej/status/1349053978345136129?s=20

], McKinnon's claim that she has no choice but to compete in the female category, because she may not compete in the men's races.

There is another consideration here, which is the social and cultural history between men and women. The state permits those who suffer from gender dysphoria (really: ‘sex’ dysphoria) to change their legal status. So a biological male becomes legally ‘female’.

If you want to join the class of women, and you have a certain level of education and awareness (which a professor of philosophy like McK should have), you will, I hope, have some concern about the effects of your actions on women. There is a history of oppression and violence...

... which men have inflicted on women. A transwoman who has real concerns for women, should think twice before deciding to compete in boxing and other martial arts events (Fallon Fox). Here, one could easily get the idea that the history of violence by men against women...

...continues in the ring. The same goes for contact sports like rugby. The language recently used to describe a transwoman on the field was revealing: she ‘folded an opponent like a deckchair’ [bbc.co.uk/sport/rugby-un…].

What about non-contact sports? Consider the psychological effects on female athletes who are ‘beaten’ (yes, this is a metaphor, but with violent origins like many others: trounce, defeat, dominate, be victorious, etc.) in a race by someone who only a year ago was a man?

McK should really spend some time pondering this: If you want to become a ‘woman’, then you would need to show some sensitivity and concern for women (whom you claim as your sisters) and the socio-cultural background which is part of being a woman.

How will your actions, as a male-born person, be perceived by women? What impact will it have? These are questions I would expect trans athletes to consider before they decide to compete, particularly if you are a philosopher like McK.

In contact sports transwomen are inflicting legally permitted violence on women; in non-contact sports they are metaphorically ‘beating’ them. I must say, I’d be very uncomfortable about this (particularly in contact sports), if I were a transwoman athlete.

McKinnon writes: 'Trans women are not “biologically...men.” That is overtly, and indisputably transphobic.' So if they are not biologically men, what are they biologically? McK claims that she is legally and 'medically' female, so does the biology change when you transition?

She writes: 'Navratilova claims that I couldn’t have achieved a 35-39 UCI Masters track cycling world championship without transitioning to female. She can’t possibly know that: no one can.' I agree with McK. on this point, you cannot have knowledge of the future (except for God)

... you can only have knowledge about the past or present. But it is highly likely that Navratilova is right. [I believe there are some philosophers who maintain that you can coherently make knowledge claims about the future.]

McK: 'There isn’t a single trans or intersex woman dominating her sport.' I think we can safely say that Laurel Hubbard is dominating - aged 41 - in her sport.
insidethegames.biz/articles/10899…'

CONCLUSION: McKinnon’s main argument is that transwomen belong in the female category because they are – by definition – women/female. This move is called a ‘definitional stop’ in philosophy. But does the legal recognition translate into being eligible to compete...

... in the female category? UK and Australian law have exemptions, so in these countries the legal status does not automatically confer eligibility on transwomen athletes.

A lot in McKinnon’s paper hangs on the human rights claim. But sport is not a human right, it is merely an ordinary right, like the right to chew gum.

Another pillar of her overall argument is that comparing the competitive advantages between men and women does not translate into competitive advantages for (pre-transition [?] and) post-transition transwomen, because transwomen are ‘female’, they are not men.

To use an analogy, McK. claims that Pam Sailors is comparing apples with pears – apples (men) may have an advantage, but pears (transwomen) don’t. The question is: have the former apples really turned into pears? And how much of the 'hardness' of apples is retained in ‘pears’?

Meaning: does the competitive advantages of a male puberty disappear (and by how much) because you are now a transwoman? McK. maintains that the ‘unfair advantage’ claims are idle speculation, assumptions, ‘counterfactuals and hypotheticals’ for which there are no hard data.

McK., from the outset, says that her detractors have the burden of proof; they need to show why transwomen don’t have a right to compete in the female category, or only a right which is constrained (e.g. testosterone reduction).

And they need to provide proof that there is an ‘unfair advantage’. But, if you want to change the status quo, the burden of proof is on you. Both common sense and recent studies urge against McK’s pronouncements.

THE END
[Thank you for your patience!]