Sex in Sport

Abstract

Sex classifications remain pervasive even as anti-discrimination law has reduced their number and eroded at some of the disabilities associated with their use. At the same time, in institutional settings in which they are retained, there has been a movement to replace the word and idea of “sex” with the word and idea of “gender” which is understood to mean gender identity. We see this movement’s effects every day, including on forms which ask for “gender” when they used to ask for “sex” and in efforts to reform law and institutional policies to take account of those whose biology is inconsistent with how they identify. It is generally assumed that the switch from “sex” to “gender” is cost-free or that if there are costs, they are outweighed by the benefits. Using generally applicable anti-discrimination analysis, the article analyzes this assumption as applied to competitive sport, which has long defined the women’s category on the basis of sex and set it aside for females only. It makes the feminist case for retaining that set-aside on the ground that, in this particular institutional space, replacing “sex” with “gender” would defeat the goals of the category. And it argues that this analytical approach, which takes into account the relevance of the biology of sex and sex differentiation to institutional mission, is useful beyond sport and law, to evaluate the merits of erasing sex in other institutional settings.

Keywords: Sports, Athletics, Gender, Sex, Discrimination, Equal Protection, Title IX