Legal Commentary

The news that Eri Yashoda, an 18-year old Japanese woman, will be playing professional (though not major league) baseball in the United States, brought to mind a discussion my students and I had in our Law and Sexuality class about gender identity.  Thanks to a student who is writing a paper on the topic, the conversation during that class turned to gender and sports.  Earlier in the semester we had discussed the case of Caster Semenya, the South African sprinter whose allegedly-ambiguous gender led some months ago to the controversy about her eligibility to compete as a woman.  With that background, several students suggested simply doing away with gender tests for athletes alleged to be "masquerading" (the term often used in this context) as a woman.

Some of this sentiment, I think, was generated by the difficulty courts and officials have experienced in determining who is "really" a woman for purposes of athletic competition.  For class we read the case in which Renee Richards was allowed to compete at the US Open, after transitioning from male to female, despite the objections of tournament officials and some (though not all) female players.  (Billie Jean King supported Dr. Richards' application.)  

I'm sympathetic to the argument.  From reading my student's paper it seems clear that every test used to determine gender for sports purposes has major flaws; the history in this area is of tests being abandoned in favor of new tests, which themselves were later abandoned as inaccurate.  I'm also sympathetic to the situation faced by intersex people, who probably account for a lot of these tests' inaccuracies.  But -- and here is where the story of Eri Yashoda comes back in -- it's got to be the case that in most cases integrating sports will redound to the serious detriment to women's opportunities.  Not always -- for example, in endurance sports maybe women would be competitive or even rise to the top.  But unless sports themselves are reimagined with equal gender opportunity in mind, it's hard to see how integration does women much good, and easy to see how it does them harm.  One might conceivably argue for forced integration, with even an affirmative-action style bump of the bluntest sort to hasten the effort -- for example, as one commentator suggests, extra points when a woman on the team scores the goal.  But that seems far-fetched, and, again, I'm not sure how the extent to which that would do women in larger favors.

The interesting question, then, is the one my students had to grapple with.  If we think sports should be gender-segregated, that means we have to figure out who's a man and who's a woman.  But that apparently is a lot harder than we might have originally though.  Indeed, the example of the intersex -- apparently, not a trivial number of people (see page 3 of this report) -- suggests that it may be impossible to do this in a completely reliable and fair way.  Exactly because cases like Eri Yashoda are so rare -- that is, because in most cases it matters a lot in sports whether one competes as a man or a woman -- the problem won't be going away anytime soon.