The 6-foot, 1-inch tall, medal-winning, NCAA champion swimmer some think helped decide the 2024 Presidential election/UPenn photo

The righteous and unsolvable war over ‘fairness’

China is slowly but steadily gaining ground in its bid to become the world’s major economic power. The U.S. has given Ukraine long-range ballistic missiles with which to attack Russia in a dangerous gambit that could lead to the expansion of the now more than two-year-old Russia-Ukraine war in Eastern Europe. War in the Middle East, where the U.S. is a major weapons supplier, has been escalating steadily since Hamas terrorists attacked Israel more than a year ago. 

And more than a few American political pundits are saying the country’s presidential election was decided by an issue focused on a tiny, tiny subset of Americans – transgender females – and the few, highly competitive women who might or might not have to face off against them in sports.

Thank Will/Lia Thomas and the National Collegiate Athletic Association (NCAA) which helped vault the well-muscled, 6-foot, 1-inch, transgender swimmer onto the national stage.

Thomas was destined to become a perfect cause for both the culture warriors on the left searching for a new minority to champion and the advocates of “common sense,” which isn’t common at all, on the right who believe the quest for ever more minority “rights” has reached the point where the rights of the majority are sometimes undermined.

“….Democrats also will not soon forget the punchline in anti-transgender Trump ads that became ubiquitous by Election Day: ‘Kamala (Harris) is for they/them; President (Donald) Trump is for you,” the Associated Press reported in the aftermath of Trump winning this year’s presidential race.

“Week by week, when that ad hit and stuck and we didn’t respond, I think that was the beginning of the end,” former Democratic Pennsylvania Gov. Ed Rendell told the old U.S. news organization, adding that he thought Harris had been unfairly painted “as a far-left liberal.

“The fallout leaves some progressive and moderate Democrats struggling between the party’s modern identity as a champion of civil rights and its electoral fortunes across swaths of America with whom those attacks resonated.”

The “civil rights” argument is that it’s not “fair” to ban transgender women from competing in women’s sports. Meanwhile, the argument against allowing them to compete is that the vestiges of their maleness provide a competitive advantage over natural-born women that is not “fair.”

Only in America could an argument like this over fairness among a small group of highly competitive athletes become a national issue debated by everyone. And transgender athletes who think the discussion unfair should be the people most thankful for the country in which they live.

In parts of Asia, transgender women are regularly abused and murdered. In China, according to Amnesty International transgenders “are performing highly dangerous surgery on themselves and buying unsafe hormone treatments on the black market because it is almost impossible for them to access” to health care.

Here, the issue is over”civil rights” in sports, the inherently most unequal of social activities. A relatively few people are genetically blessed to be really good at the sport of their choosing but the vast majority aren’t.

Against this backdrop, it could, at best, be considered odd to try to apply civil rights, which by definition guarantee “equal social opportunities and equal protection under the law, regardless of race, religion, or other personal characteristics” to sports when sports are designed to be brutally unequal.

Sports have winners and losers in the best case. Often there is a winner and a whole lot of losers.

Historically, the closest sports got to worrying about fairness was in those situations where rules are written to keep the competition from getting out of hand or categories were created to protect those who are handicapped by size or weight. Thus there are “weight classes” in combat sports like boxing and “age groups” in aerobic sports like running.

And then there is the by far largest of special categories: “women’s sports.”

Women’s sports were long ago separated from men’s sports along the lines of the “separate but equal” standard that allowed racial segregation to survive for seven decades in the U.S. after a Civil War intended to eliminate government distinctions between black and white Americans.

The U.S. Supreme Court overturned that standard in 1956 because it was and is racist and inherently unfair. It is a shame it took the courts so long. And it is good that big changes followed with the Civil Rights Act of  1964 to cement in place the idea that discrimination on the basis of race, color, religion, sex or national origin is wrong.

But because the standard of “separate but equal’ is unfair in some circumstances doesn’t mean it is unfair in all circumstances. In some circumstances with no perfect solution to equality, it might be the only way to get close to “fairness.”

This analysis could probably end here with the observation that no one – absolutely no one – is at this time objecting to transgender or transexual males, those born biological females, competing in sports as men.

The reason for this is simple. Women who transition to men carry with them the biological baggage of what was once termed “the weaker sex.” That term is now considered generally offensive but would seem appropriate in this case since the physical and physiological differences between men and women cannot be ignored when it comes to sports.

Popular opinion

Because of these fundamental differences, the separate but equal treatment of sports for women is the norm in the U.S. Male sports have been differentiated from female sports in this country for a long time.

And in the early 1970s, the U.S. Senate voted 63 to 15, with the U.S. House voting 218 to 180, to embrace women’s sports by amending the Civil Rights Act to add Title IX to guarantee women equal but separate treatment in sports competitions supported by public institutions.

The U.S. Department of Health, Education and Welfare further clarified the law passed by Congress and signed by the late President Richard Nixon by in 1979 setting standards for how schools and universities were to provide women sports opportunities equal to those provided men.

Before all of this, according to the website of the Feminist Majority Foundation, “women were 2 percent of the college students participating in sports.” The Foundation reports women now comprise “43 percent of the college students participating in sports. In raw numbers, we went from 32,000 to 150,000 athletes – a gain of over 400 percent.”

Title IX has grown women’s sports to such an extent that there have been criticisms that the law is now undermining the finances of once institutionally dominant sports for men, especially at the collegiate level. But despite this complaint, it is now widely accepted that both males and females should be allowed generally equal opportunities to participate in high school and university sports.

Into this picture have come transgender and transexual, female athletes to wreak havoc with the class given that there are two ways of looking at their participation with neither view wholly wrong.

There is no doubt that it is unfair to transgender and transexual women to force them to continue to compete with men because the medical treatments they undergo to change gender leave them incapable of competing with men. It is equally unfair to women athletes, however, to allow former males to compete as females unless it can be shown that any advantage they might have enjoyed as males is gone.

This is where things get difficult.

Whether the transition from male to female involves the removal of the testicles or chemical castration, the subsequent drop in production of testosterone linked to that organ deprives trans women athletes of some of their male advantage. The big questions center on how fast this advantage fades, and how much of it is ultimately lost.

Views on the latter differ even among female trans athletes themselves.

Caitlyn Jenner, who won the decathlon gold medal in the 1976 Olympics as Bruce Jenner, told podcaster Lance Armstrong (yes, that Lance Armstrong) that she believes males who transition to females never fully lose the advantage of having been born male unless they “transition before male puberty.”

On the other hand, Philipa York, writing at Cycling News last year, suggested the idea that transwomen could displace some biological women in women’s sports is “fear-mongering at its most insidious.’‘ York is the former Robert Millar who before transitioning to a female enjoyed considerable success as a professional cyclist. He, now she, won the “King of Mountains” jersey in the 1984 Tour de France and finished as the runner-up in the 1987 Giro d’Italia.

York argues that once testosterone levels drop because of castration in one form or another, the biological advantage of former maleness disappears. This is, unfortunately, a subject on which the science is not clear.

Anyone who wants to get deep down in the weeds on that matter is directed to South African physiologist Ross Tucker’s lengthy take on testosterone. His report focuses on Caster Semenya, the South African distance runner who was born with internal testicles and a vagina, but no uterus.

Semenya was identified at birth as a girl and grew up as such but ran into huge controversy after blowing away other women runners in the 800 meters at the 2016 Olympics. It was later revealed that the two women closest to her time at the finish – the silver and bronze medal winners –  were also, like Semenya, born with what is called DSD, differences in sexual development, as the BBC reported in 2023. 

Their DSD led to them producing more testosterone than is normal for women, and they were banned from competition unless they agreed to take testosterone-suppressing drugs.  World Athletics issued this order after concluding that the “fairness and the integrity of the female competition” trumped “inclusion.” Semenya and her supporters argued that the testosterone-suppressing drugs undermined her health, and she is still warring with World Athletics.

“It makes you feel sick, nauseous. You have panic attacks. It starts creating a little bit of blood clots in your system,” she told CNN last year. “Your stomach is burning. You eat a lot. You can’t sleep. You sweat a lot each and every day.”

Semenya believes that while her unique, genetic makeup might provide her an advantage over other women, it is not an unfair advantage.

“I’m born a woman, but I’m a woman with no uterus. I have no fallopian tubes. I don’t go through menstruation,” she told CNN. “Yes, I’m different, but it doesn’t make me less of a woman.

“I am here where I am because of dedication, hard work, discipline and all those things.”

World Athletics, however, has stood by its position that regulating testosterone levels, which can be altered not only by testosterone-suppressing drugs but by testosterone-boosting drugs, is vital to maintaining sports for women.

Testosterone is a powerful hormone. It boosts aerobic capacity important in sports such as running, cycling and swimming along with helping to increase muscle mass important in sports from cross-country skiing, where double-poling is the most biomechanically efficient means of propulsion, to weight lifting, wrestling, boxing and other contact sports.

The East-German experiment

Female athletes from East Germany were in the 1970s and ’80s unknowingly fed “vitamins” that were actually cocktails of testosterone and steroids that helped them dominate Olympic swimming competitions.

In 1976 in Montreal, the USA swimming team set nine American records “only to see every record eclipsed by an East German (DDR) swimmer riding high in the water from a systematic state-orchestrated drug program that claimed titles in 10 out of 11 individual races,” Swimming World Magazine would later record.

“Rather than congratulating the winners, specifically the DDR swimmers, as is customary in the true Olympic spirit of competition, a few of the American girls opted to cry sour grapes instead: ‘“To be frank, I don’t think we should look like men.’ ‘I wouldn’t want to walk around the neighborhood looking like a guy.'”

Similar observations have since been directed at trans-swimmer Thomas, who became famous after she won the 500-yard freestyle at the 2022 NCAA Women’s Division I Swimming and Diving Championships in Atlanta in 2022.

“…If you’re just looking at it, Lia is 6-foot, 4-inches (tall), whereas I’m on the podium next to her and I’m 5-foot, 6 inches. She has extremely long limbs comparative to the rest of us, major muscle definition,” Riley Gaines told the Independent Women’s Forum not long after.

“And so when I say blatant (unfairness), I just mean anyone with common sense can see where the unfairness lies in this whole ordeal.”

Gaines has since become the country’s most visible critic of trans women being allowed to compete in women’s sports. She has a strong, though far from absolute, scientific case to support her view – that men and women are fundamentally different animals.

This difference is well illustrated by America’s best-known female marathoner, Join Benoit, the winner of the 1984 Olympic marathon. Benoit’s aerobic capacity, as measured by the maximum rate at which the body can consume oxygen during exercise, something commonly called VO_2max , was the highest ever recorded for a woman at 78.6 ml/kg/min, according to a Topend Sports listing of the highest rates ever recorded.

She can be fairly described as a genetic freak. Only six other elite women athletes have been known to test over 70. That is, however, a number topped by just about every rider in the Tour de France, a male-only competition.

And there are plenty of elite, male athletes – cyclists, runners and cross-country skiers – over 80 with young Norwegian cyclist Oskar Svendsen now the highest on record at 97.5 with fellow Norwegian Bjørn Dæhlie – an eight-time, gold medal-winning Nordic skier – not far behind at 96.

Benoit’s running history is also an illustration of the importance of VO_2max. Benoit continued running competitively long after the Olympics, but given an average, 10-percent-per-decade decay in aerobic capacity as measured by VO_2max , she steadily slowed down.

Now in her 60s, her VO_2max is probably down in the 50 ml/kg/min range, which would be a high level for your faster local 10K runners. This level of aerobic fitness was good enough to allow her to run the 2019 Boston Marathon in 3 hours and four minutes in 2019,  but that was a whopping 42 minutes slower than her personal best marathon run in a time of 2:21:21 in 1985.

Benoit was hoping to become the first woman over 60 to break three hours in 2019, but she couldn’t do it. Yugeta Mariko, however, ran 2:59:15 later that year to snatch the record. Mariko has since lowered her personal best to an amazing 2:52:13, but that still leaves her way behind Tony Hughes.

The 60-year-old Irishman ran 2:30:02 in 2020 thanks to what some social warriors might consider his “male privilege.” And if male privilege is defined as an advantage “available to men on the basis of their sex,” as it is in some places explained, males certainly possess it in sport.

Muscle differences

Consider the 100-meter dash, a running competition more dependent on muscle power than aerobic capacity.

A doped-up Florence Griffith Joyner set a still-standing, women’s world record of 10.49 seconds in 1988. Every male runner in the final of the 100 meters in Paris this year was more than half a second faster. 

Meanwhile, the winner of the women’s, Olympic 100 this year was almost a full second slower than the fastest man, despite blowing away the women’s field.  And the bronze-medal winning female was slower than the slowest male finisher in the men’s 100.

These are time differences of 10 percent or greater in a competition in which the winners and losers are separated by fractions of a percent. The winner of the men’s 100 was 0.12 percent faster than the last-place finisher in that race, but the last-place finisher in the men’s race was about 9.5 percent faster than the winner of the women’s 100.

There are biological reasons for these differences, and they cannot be ignored in sports no matter what anyone wants to believe. That said, there is also no denying the advantage shrinks with time after testosterone is removed from the picture. The performances of Thomas herself illustrate this well.

The Lia Thomas who won the NCAA women’s, 500-meter freestyle with a time of 4:33.24 was clearly not the former Will Thomas who swam a 500-meter best time of 4:18.72, according to UPenn records, before transitioning to a female. 

Once Thomas decided to become a she, Will/Lia was never, ever going to be able to seriously compete against males. The pools are full of high school boys swimming faster than 4:33. The winner of the Minnesota state championship in the 500M free 4:16.92.In Texas, the winning time was 4:24.05; in Indiana, the time was 4:19.55. 

As a young male, Will Thomas was struggling to stay competitive with his male peers. As a transgender woman, Lia didn’t even belong in the pool with them. So where was she supposed to compete?

It would be decidedly unfair to demand Thomas remain in competition with males because she clearly wasn’t going to be able to compete with them, but moving her into the female category without some exact measure of whether her former male advantage was continuing to contribute to her swimming wasn’t fair to other female swimmers, either.

If, of course, you accept the separate but equal division between men’s and women’s sports. There are those who don’t.

State of confusion

He went on to call her an “incredible” player and added that her ranking among the men might prove somewhat or somewhat lower. But despite those qualifiers, his comment drew immediate and vehement backlash from those unfamiliar with the realities of performance in sport even though the leftish website Vox did later point out that “Williams has said similar things in the past, and in 1998 she played an exhibition match and lost to the 203rd-ranked male player.”

As professional athletes, both McEnroe and Williams understand the differences between the sexes. Males are bigger and stronger, and it doesn’t necessarily require any sort of “invasive test” as the ACLU contends to tell them apart.

According to Gaines, it was pretty easy in the case of Thomas for women in the locker room to tell who was trans and who wasn’t. Gaines said Lia’s still attached penis made things clear.

”