I know that "female is not a testosterone level" and I agree with you that even a male athlete with a "female" testosterone level should not compete in women's sports. But I found it interesting that no one at the oral argument got to the bottom of an important factual question: What actualy is/was the circulating testosterone level of BPJ or Hecox? Apparently only 25% of "trans women" are able to achieve levels within the female range, so I'd be surprised if both of them are actually at that level. As mentioned in the ADF's briefing, Hecox had only implied at one point that their T level was below 10 nm/L -- five or six times higher than that of women.
I think "normies" are surprised to learn that "suppressed testosterone" doesn't actually mean "female testosterone levels" and this argument is worth elucidating to get more normies on board.
Yes, good points. And it did come up: How would T levels in this tiny subset of trans-id men be measured? "Oh, just routine bloodwork," was the reply. How often? By whom? What level would be satisfactory to show not "mitigation" but elimination of all advantage? The argument falls apart quickly.
Right - and "simple bloodwork," especially when conducted repeatedly, is much more invasive than cheek swabs - so suddenly they don't care about invasive medical procedures.
It was never made public what testosterone level Lia Thomas had, nor how often/by whom this was assessed. nor did the ACLU clarify what level would be acceptable or unacceptable.
They should also be considering the psychological impacts on girls. For example the ‘learned helplessness’ leading many just to give up! Don’t girl’s also have a right to dignity and to be able to maintain their fitness and to enjoy sport without the additional discomfort of having to cope with boys in their locker rooms and on the playing field during their particularly self-conscious teenage years? Some of the comments coming from these boys are themselves quite revealing and likely to make girls feel even more uncomfortable! This is so wrong!
Leftist women tell us we should march and protest for Palestine, BLM and immigrants, but just STFU and acquiesce when men with cross dressing fetishes demand to become us. This is where they lost me.
I think they’re pretty silent about the women in Afghanistan too. They choose very selectively and it seems that supporting their own sex is a step too far! I have leftist friends but it’s like they are completely radicalised into accepting everything the dogma preaches without question. I just hope that eventually they will come to realise the dreadful consequences of denying the primacy of sex over ‘gender’ which means so many different things and also gives carte blanche to AGP perverts and the mentally ill!
I think it's encouraging that the pro-trans lawyers are trying this tack of "mitigation"-based exceptions. It's almost as if they have given up on getting the Justices to recognize "transgender status" as a quasi-suspect class building on Bostock. With this argument, they should be guaranteed to lose if the facts and the science are properly considered. Then again, KBJ is not a biologist, and neither are the others, so who knows if they will consider scientific facts!
And if they want to build on Bostock, they can do it like this: No one should be discriminated against based on their "gender identity". Males should be free to play on male sports teams regardless of how they identify.
I do have some hope that our Justices will follow in the footsteps of the UK Supreme Court and rule that sex means sex.
I love this logic: "No one should be discriminated against based on their "gender identity". Males should be free to play on male sports teams regardless of how they identify."
Mariah, I need to add your photo to the wall of my sports room. Problem is underneath each name is a title. Cornhole and Basketball Champion must be superseded to reflect your sporting impact: womens sports lobbyist??? Somebody make the call, please.
Ha ha - I'm honored. Up to you, of course. As for me, I'm fond of Aspiring Cornhole Champion. :-) (Did not win a national title yet. 2nd at nationals; first in DC.) Or Writer. Or Feminist Sportswriter. I often say, when more space is available, "Writer focused on the empowerment of women through sports." Send us a photo of your wall!
OMG, you ARE our saviour, in so many ways. This quote had me laughing out loud: “You make the argument that ‘on the basis of”’ means ‘solely because of,’ solely. We have long said that ‘because of’ means but-for, not ‘solely because of.” This is absolutely impenetrable, worthy of Judith Butler. (And I say that as a (retired) lawyer.) And loved, loved, loved that graphic. Terrific summary of the oral arguments. I have restacked, because of course I have. Everyone should read this!
This is really good, Mariah. The amount of critical info that was blithely glossed over as if all this was just an amusing theoretical trifle — aargh, so insulting!
Thanks Jenny. Indeed. And Jackson trying to shoehorn it back into a case of these poor boys who can't play sport aligned with their gender identity, sad lads. Yet the GIRLS who have a different gender ID still manage to stay on the girls' teams without complaint. Because that's where the fair competition is, as everyone knows. So much they don't understand or willfully ignore. But at least we expect to win.
Yeah, Mariah (and Jenny). Sometimes I find that courtrooms are places where lawyers try to make the judges feel sorry for their client(s). They seem to think that whoever succeeds in that, wins.
There was some of that too. Admitting, when pressed, that the history of discrimination against trans-ID people is nowhere near as extensive or brutal as the discrimination against black people - but trying to get that into the record: we should feel sorry for these people.
What about the historical and worldwide discrimination against women? Were "trans" women prevented at any point in time from voting, owning property or opening a bank account as an adult without permission from another grown adult? Are they subject to beatings and stoning in the middle east for not wearing their restrictive clothing "appropriately"? Did they have to learn to fend off men in their fifties and sixties before they even hit puberty? Aside from all the physical sporting disadvantages. We don't need to bring race into it. They can't identify as women simply because they have zero way to relate to our lived experience.
Yes, I’ve seen this a lot here in NYC….where “trans” people try to co-opt the Civil Rights Movement. They try to attach themselves to histories of OTHER people in order to try to attain a victim status for themselves. It’s disgraceful, of course.
Here's a lawyer's take on your excellent review, with the caveat that I have neither listened to nor read the arguments. By limiting their complaint to "mitigated males," the plaintiffs seem to have made the case more fact based than law based. And appellate courts are not really the fora to thrash that out. The facts should have been litigated and established below, with testimony and evidence as to whether "mitigation" can even become equivalency. In other words do boys who take hormones, etc. become "boy-like," "boy-lite," or "girls."? At least how it appears to me.
Thanks, Judy. I sometimes think that judges have their biases, and they will sift through "caselaw" to substantiate whatever those biases might be.
So, "the law" may not matter as much as who these judges are, and how much they feel they must align with the "trans" nonsense for their perceived political purposes.
Interesting. I think some of their long legal rabbit holes -- which even they laughed about in one light moment - might have been a search for legal justification rather than simply focusing on the question asked: Does it violate either Title IX or the Equal Protection Clause to exclude males? Will be interesting to see how they do justify their opinions whatever they may be.
They did allude to what you're observing. There were copious quantities of amicus briefs on both sides -- our side showed evidence that males retain advantages regardless. Did not read theirs but with the word "mitigate" they seem to be implying that some reduction of the advantage is sufficient.
The Justices did make a nod or two toward sending this back to Congress after the science is settled (it is, in our view) - and that, to your point, their job is not to debate the facts. Hence their deep dives into intermediate scrutiny, as-applied challenges, etc. I do have a footnote pointing toward excellent legal analysis for those who want to go there.
Nice to have an attorney weigh in. Love the "boy lite" term. LOL.
I had hoped that the two state's attorneys would have more forcefully argued that the definition of sex in Title IX means just that, sex, and that as such, any state law or policy that allowed anyone other than females into women's/girls' sports violated Title IX and, as such, was invalid. But, sadly, it appears that will have to wait for another day.
They basically did say that - and that mitigation is irrelevant, as is gender identity. I try to keep these short; sorry I left out some important stuff. :-)
it’s true that in some states identifying as a woman is sufficient to grant you access to women spaces. This is totally insane, and needs to change. But as I understand it, almost no sports organizations operate that way. there was a Canadian weightlifting association that used this criterion, and they were exposed to a lot of ridicule when a bearded man listed himself as a woman and won the championship. But every other major sports organizations has a complicated set of criteria that determines whether men can compete in each particular sport as women, usually involving testosterone levels. so it’s just not true that most sports define women by an internal identity claim, and you’re not helping your case by stating falsehoods.
Actually, that "internal identity" claim is all it takes in many sports at many levels, Teed.
Some levels of rowing, sailing, curling, swimming, masters swimming, gymnastics, hockey, senior games -- and most high schools in the 23 U.S. states that allow boys in girls' sports -- generally allow what's known as self-ID: no hormone or other manipulations required.
So when you see a boy competing against girls at the high school level, he usually is physiologically indistinguishable from other boys - not on performance-affecting drugs of any kind.
According to TransAthlete.com, the following states' high school athletic associations offer boys unrestricted access to girls' sports based on what's known as "self-ID" -- though this website refers to these as "friendly" policies, because they do not have girls in mind: California, Connecticut, Colorado, Florida, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New York, Oregon, Rhode Island, South Carolina, Vermont, Washington, and Washington, DC. (Update: Found a more recent map at GLSN: https://maps.glsen.org/trans-and-nonbinary-athletic-inclusion-policies. They say 14 states plus DC. Still. A lot.)
See this list of U.S. and international sports orgs we keep at the Women's Sports Policy Working Group, and search for "self-ID" to find details: https://womenssportspolicy.org/female-fairness/
Thanks for this, especially the links. I've been told otherwise by Trans advocates, and need to check my sources. I wrote an article on this some time ago, and received a reply that gave me sources claiming the following:
"what is happening is not “let anyone play in whichever gendered sport they feel like”, not even in high school sports.” . . . .Even in those high school rules, the “friendly” ones don’t say “just decide which gender you feel like today!” No, even the “friendly” ones involve the actual doctors involved with the trans student and even psychiatrist review."
This contradicts your claim that "friendly" means "self-id". I don't know who to believe, and welcome any citations or arguments you may have.
You’re welcome. Believe me. I’m an expert, the Women’s Sports Policy Working Group is full of experts. I already provided links - one from the pro-trans GLSN. They spell it out re “consistent w gender ID.”
Hi PI, Good points. As for whether sex can be "adjusted at the margins," you might like this controversial stance recently taken by the Women's Sports Policy Working Group. We agree with you that this should not be about performance data and say, in effect, there are no margins.
Thanks for an excellent and very useful analysis, Mariah.
Have cross posted.
https://dustymasterson.substack.com/p/the-good-the-bad-and-the-weird
Dusty
This is a very helpful breakdown and I appreciate you wading through all the documents to deliver this so rationally and succinctly.
Hi Kimberly, how nice to hear from you. You're very welcome!
Thanks for this analysis!
I know that "female is not a testosterone level" and I agree with you that even a male athlete with a "female" testosterone level should not compete in women's sports. But I found it interesting that no one at the oral argument got to the bottom of an important factual question: What actualy is/was the circulating testosterone level of BPJ or Hecox? Apparently only 25% of "trans women" are able to achieve levels within the female range, so I'd be surprised if both of them are actually at that level. As mentioned in the ADF's briefing, Hecox had only implied at one point that their T level was below 10 nm/L -- five or six times higher than that of women.
I think "normies" are surprised to learn that "suppressed testosterone" doesn't actually mean "female testosterone levels" and this argument is worth elucidating to get more normies on board.
Yes, good points. And it did come up: How would T levels in this tiny subset of trans-id men be measured? "Oh, just routine bloodwork," was the reply. How often? By whom? What level would be satisfactory to show not "mitigation" but elimination of all advantage? The argument falls apart quickly.
So they need "genital inspections" to determine male vs female, but simple bloodwork to determine actual testosterone levels?
Right - and "simple bloodwork," especially when conducted repeatedly, is much more invasive than cheek swabs - so suddenly they don't care about invasive medical procedures.
It was never made public what testosterone level Lia Thomas had, nor how often/by whom this was assessed. nor did the ACLU clarify what level would be acceptable or unacceptable.
Correct. And with just one year in Hecox's case...it seems their unstated point is that ANY degree of "mitigation" is sufficient, which is bogus.
They should also be considering the psychological impacts on girls. For example the ‘learned helplessness’ leading many just to give up! Don’t girl’s also have a right to dignity and to be able to maintain their fitness and to enjoy sport without the additional discomfort of having to cope with boys in their locker rooms and on the playing field during their particularly self-conscious teenage years? Some of the comments coming from these boys are themselves quite revealing and likely to make girls feel even more uncomfortable! This is so wrong!
Leftist women tell us we should march and protest for Palestine, BLM and immigrants, but just STFU and acquiesce when men with cross dressing fetishes demand to become us. This is where they lost me.
I think they’re pretty silent about the women in Afghanistan too. They choose very selectively and it seems that supporting their own sex is a step too far! I have leftist friends but it’s like they are completely radicalised into accepting everything the dogma preaches without question. I just hope that eventually they will come to realise the dreadful consequences of denying the primacy of sex over ‘gender’ which means so many different things and also gives carte blanche to AGP perverts and the mentally ill!
Exactly.
Great work here, Mariah. Restacked with a note. THANK YOU for sifting through all 200+ pages replete with legal jargon for us.
Oh! And I always mention the LOCKER ROOMS and it is a shame no one in that courtroom did.
Their argument is such an interesting contrast to the dogma that holds that anything less than self-ID is transphobic...!
Yes, they’re shifting strategies because the self ID didn’t work.
Indeed, they pretty much had to. Just embarrassing since that was (one of) their "No debate!" positions, lol
I think it's encouraging that the pro-trans lawyers are trying this tack of "mitigation"-based exceptions. It's almost as if they have given up on getting the Justices to recognize "transgender status" as a quasi-suspect class building on Bostock. With this argument, they should be guaranteed to lose if the facts and the science are properly considered. Then again, KBJ is not a biologist, and neither are the others, so who knows if they will consider scientific facts!
And if they want to build on Bostock, they can do it like this: No one should be discriminated against based on their "gender identity". Males should be free to play on male sports teams regardless of how they identify.
I do have some hope that our Justices will follow in the footsteps of the UK Supreme Court and rule that sex means sex.
I love this logic: "No one should be discriminated against based on their "gender identity". Males should be free to play on male sports teams regardless of how they identify."
Mariah, I need to add your photo to the wall of my sports room. Problem is underneath each name is a title. Cornhole and Basketball Champion must be superseded to reflect your sporting impact: womens sports lobbyist??? Somebody make the call, please.
Ha ha - I'm honored. Up to you, of course. As for me, I'm fond of Aspiring Cornhole Champion. :-) (Did not win a national title yet. 2nd at nationals; first in DC.) Or Writer. Or Feminist Sportswriter. I often say, when more space is available, "Writer focused on the empowerment of women through sports." Send us a photo of your wall!
OMG, you ARE our saviour, in so many ways. This quote had me laughing out loud: “You make the argument that ‘on the basis of”’ means ‘solely because of,’ solely. We have long said that ‘because of’ means but-for, not ‘solely because of.” This is absolutely impenetrable, worthy of Judith Butler. (And I say that as a (retired) lawyer.) And loved, loved, loved that graphic. Terrific summary of the oral arguments. I have restacked, because of course I have. Everyone should read this!
LOL - you’re the best. I read that sentence so many times! Lawyers! Gotta… love ‘em. Some of my fave siblings (both of them) and friends. :-)
Thank you for this! I'm looking forward to digging in.
Great. You’re very welcome.
This is really good, Mariah. The amount of critical info that was blithely glossed over as if all this was just an amusing theoretical trifle — aargh, so insulting!
Thanks Jenny. Indeed. And Jackson trying to shoehorn it back into a case of these poor boys who can't play sport aligned with their gender identity, sad lads. Yet the GIRLS who have a different gender ID still manage to stay on the girls' teams without complaint. Because that's where the fair competition is, as everyone knows. So much they don't understand or willfully ignore. But at least we expect to win.
Yeah, Mariah (and Jenny). Sometimes I find that courtrooms are places where lawyers try to make the judges feel sorry for their client(s). They seem to think that whoever succeeds in that, wins.
There was some of that too. Admitting, when pressed, that the history of discrimination against trans-ID people is nowhere near as extensive or brutal as the discrimination against black people - but trying to get that into the record: we should feel sorry for these people.
What about the historical and worldwide discrimination against women? Were "trans" women prevented at any point in time from voting, owning property or opening a bank account as an adult without permission from another grown adult? Are they subject to beatings and stoning in the middle east for not wearing their restrictive clothing "appropriately"? Did they have to learn to fend off men in their fifties and sixties before they even hit puberty? Aside from all the physical sporting disadvantages. We don't need to bring race into it. They can't identify as women simply because they have zero way to relate to our lived experience.
Yes, I’ve seen this a lot here in NYC….where “trans” people try to co-opt the Civil Rights Movement. They try to attach themselves to histories of OTHER people in order to try to attain a victim status for themselves. It’s disgraceful, of course.
They literally try to pretend the Holocaust was about them.
Yes, Jackson really wants us to check our female privilege. I loved the rally sign that read "Female is not a hormone level." Case closed!
Me too. One of my faves.
Here's a lawyer's take on your excellent review, with the caveat that I have neither listened to nor read the arguments. By limiting their complaint to "mitigated males," the plaintiffs seem to have made the case more fact based than law based. And appellate courts are not really the fora to thrash that out. The facts should have been litigated and established below, with testimony and evidence as to whether "mitigation" can even become equivalency. In other words do boys who take hormones, etc. become "boy-like," "boy-lite," or "girls."? At least how it appears to me.
Thanks, Judy. I sometimes think that judges have their biases, and they will sift through "caselaw" to substantiate whatever those biases might be.
So, "the law" may not matter as much as who these judges are, and how much they feel they must align with the "trans" nonsense for their perceived political purposes.
Interesting. I think some of their long legal rabbit holes -- which even they laughed about in one light moment - might have been a search for legal justification rather than simply focusing on the question asked: Does it violate either Title IX or the Equal Protection Clause to exclude males? Will be interesting to see how they do justify their opinions whatever they may be.
Thanks, Judy!
They did allude to what you're observing. There were copious quantities of amicus briefs on both sides -- our side showed evidence that males retain advantages regardless. Did not read theirs but with the word "mitigate" they seem to be implying that some reduction of the advantage is sufficient.
The Justices did make a nod or two toward sending this back to Congress after the science is settled (it is, in our view) - and that, to your point, their job is not to debate the facts. Hence their deep dives into intermediate scrutiny, as-applied challenges, etc. I do have a footnote pointing toward excellent legal analysis for those who want to go there.
Nice to have an attorney weigh in. Love the "boy lite" term. LOL.
I had hoped that the two state's attorneys would have more forcefully argued that the definition of sex in Title IX means just that, sex, and that as such, any state law or policy that allowed anyone other than females into women's/girls' sports violated Title IX and, as such, was invalid. But, sadly, it appears that will have to wait for another day.
They basically did say that - and that mitigation is irrelevant, as is gender identity. I try to keep these short; sorry I left out some important stuff. :-)
My comment wasn't intended as a criticism in any way. I was just sharing my personal expected disappointment with the upcoming verdict. Great post!
Thanks Jim. I got that. :-)
Very well put, thank you.
it’s true that in some states identifying as a woman is sufficient to grant you access to women spaces. This is totally insane, and needs to change. But as I understand it, almost no sports organizations operate that way. there was a Canadian weightlifting association that used this criterion, and they were exposed to a lot of ridicule when a bearded man listed himself as a woman and won the championship. But every other major sports organizations has a complicated set of criteria that determines whether men can compete in each particular sport as women, usually involving testosterone levels. so it’s just not true that most sports define women by an internal identity claim, and you’re not helping your case by stating falsehoods.
She’s not stating falsehoods. She’s telling the truth.
Correct.
Actually, that "internal identity" claim is all it takes in many sports at many levels, Teed.
Some levels of rowing, sailing, curling, swimming, masters swimming, gymnastics, hockey, senior games -- and most high schools in the 23 U.S. states that allow boys in girls' sports -- generally allow what's known as self-ID: no hormone or other manipulations required.
So when you see a boy competing against girls at the high school level, he usually is physiologically indistinguishable from other boys - not on performance-affecting drugs of any kind.
According to TransAthlete.com, the following states' high school athletic associations offer boys unrestricted access to girls' sports based on what's known as "self-ID" -- though this website refers to these as "friendly" policies, because they do not have girls in mind: California, Connecticut, Colorado, Florida, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New York, Oregon, Rhode Island, South Carolina, Vermont, Washington, and Washington, DC. (Update: Found a more recent map at GLSN: https://maps.glsen.org/trans-and-nonbinary-athletic-inclusion-policies. They say 14 states plus DC. Still. A lot.)
See this list of U.S. and international sports orgs we keep at the Women's Sports Policy Working Group, and search for "self-ID" to find details: https://womenssportspolicy.org/female-fairness/
Thanks for this, especially the links. I've been told otherwise by Trans advocates, and need to check my sources. I wrote an article on this some time ago, and received a reply that gave me sources claiming the following:
"what is happening is not “let anyone play in whichever gendered sport they feel like”, not even in high school sports.” . . . .Even in those high school rules, the “friendly” ones don’t say “just decide which gender you feel like today!” No, even the “friendly” ones involve the actual doctors involved with the trans student and even psychiatrist review."
This contradicts your claim that "friendly" means "self-id". I don't know who to believe, and welcome any citations or arguments you may have.
I'm sorry, my computer won't let me paste in the links, for some reason. But you can find them in my article. I think these links have been edited since I cited them, to acknowledge recent changes. https://open.substack.com/pub/teedrockwell/p/the-possiblyinescapable-dilemma-of?
You’re welcome. Believe me. I’m an expert, the Women’s Sports Policy Working Group is full of experts. I already provided links - one from the pro-trans GLSN. They spell it out re “consistent w gender ID.”
I will read those links. thanks again.
Hi PI, Good points. As for whether sex can be "adjusted at the margins," you might like this controversial stance recently taken by the Women's Sports Policy Working Group. We agree with you that this should not be about performance data and say, in effect, there are no margins.
https://womenssportspolicy.substack.com/p/who-counts-as-a-female-athlete