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Regulating Identity

In late October, the Sunday New York Times reported that the Department of Health and Human Services was considering a regulation stating that “Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth.” According to the leaked document, “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.” The Times article ended with a no-holds-barred attack on the proposal from former Assistant Secretary of Education for Civil Rights, Catherine Lhamon:  the proposed definition “quite simply negates the humanity of people.”

The next day the Times published an op-ed by Jennifer Finney Boylan entitled “Trump Cannot Define Away My Existence.”  It began with this dramatic sentence: “I was surprised to learn on Sunday morning that I do not exist.” The author claimed the not-yet-proposed rule would “empower bullies,” and cause “vulnerable, frightened children [to] come home in tears—or bruised, or not at all.”  Some of these children might decide to throw themselves “beneath the wheels of a truck” rather than “live in such a world.” Writing in The New Yorker Masha Gessen offered a similarly dire prediction: the mere threat of a revised regulation would prove “traumatic” for “transgender and intersex people.” “The revocation of rights feels violent,” she explained, “because it is violent.”  Protestors in front of the White House chanted “We will not be erased.”  #WontBeErased spread throughout the Twittersphere.

That a leaked draft of a proposed administrative rule could “traumatize” so many people and potentially “erase” up to a million and a half citizens should lead us to wonder what has happened to our politics and our understanding of government in a liberal democracy.  In part, of course, this controversy reflects intense partisan polarization augmented by well-deserved distrust of the President and his entire administration. We also see here the remarkable rise in prominence of an issue seldom discussed in politics until a few years ago, and the profligate misuse of the term “trauma.” Above all we see the interconnection between identity politics and federal regulation of schools, employers, and subnational governments.

Most of the federal rules and guidelines on transgender issues have been established under civil rights statutes, especially Title VII of the 1964 Civil Rights Act and Title IX of the 1972 Education Amendments. How have laws designed to open employment and educational opportunities to women become enmeshed in what has become known as the “bathroom wars”? In my recent book The Transformation of Title IX, I show how the purpose of that law slowly changed from eliminating institutional barriers facing women in education to attacking all stereotypes about sex and gender held by students, potential students, faculty, staff, and the public at large.  This meant focusing not on education as conventionally understood, but on re-educating everyone about sex roles, sexuality, and (with transgender issues) the fluidity of sex and gender. As former Assistant Secretary Lhamon explained, “The bathroom question was never just about a bathroom.  It was about who that child is and how that child will be perceived and seen.” Federal regulation, in other words, is now about identity—which means that we must not only recognize whatever identity a person chooses, but must strive to change the way everyone else sees that person. This, in turn, requires us to change the way almost all of us think about what “sex” means—a big job for a few federal administrators wielding short, ambiguous statutory phrases!

To be sure, there are several reasons to think that the particular revision floated by the Trump Administration is ill-advised.  It attempts to impose the same rules in much different contexts—employment, health care, elementary and secondary schools, colleges and universities, and public facilities such as bathrooms.  Like the transgender advocates who so strenuously oppose it, the proposal fails to recognize major differences within the broad “transgender” category: the very small number of “intersex” individuals who have abnormal chromosomes or were exposed to unusual hormones in utero; adults who have undergone sex change surgery along with hormone treatment; and children experiencing what is known as “gender dysphoria.”  Some of these children will eventually grow more comfortable with their biology. Of these, some will decide they are gay, not transgender. How many will continue to believe that their gender does not match their biological sex? We simply do not know. Given these uncertainties and varying contexts, trying to devise a uniform national formula is the type of “one size fits all” policy long decried by conservatives.  Why not leave these subtle and difficult decisions to the institutions closest to the ground?

Transgender rights advocates frequently claim that the HHS proposal would strip transgender students of well-established rights.  While this might make for powerful rhetoric, it is simply not true. Until 2014 President Obama insisted that existing civil rights laws do not cover discrimination based on either sexual orientation or gender identity.  He supported legislation to add such coverage to civil rights statutes. Only when it became clear that this legislation would not pass did he give in to pressure from advocacy groups to do the same thing through administrative action.  In 2014 the Department of Justice—which just a few years ago had defended the FBI’s authority to refuse to hire a transgender employee—announced that its policy has “evolved over time,” and that it would now interpret Title VII to prohibit discrimination on the basis of “gender identity.”  

The Department of Education’s Office for Civil Rights did a similar about-face on Title IX, but without admitting that its position had changed.  (Despite its many innovations, OCR never admits to doing anything new.) In 2016 it issued a unilateral “Dear Colleague Letter” (DCL) demanding that access to all sex-segregated facilities—including bathrooms, showers, dormitories, and sports teams—be allocated on the basis of students’ gender identity (that is, their “internal sense of gender”) rather than biological sex.  No exceptions would be allowed: schools’ “desire to accommodate others’ discomfort cannot justify a policy” deviating from this federal command.

This novel policy had a short shelf-life.  Within a few months a federal district court judge in Texas ruled that OCR had exceeded its authority, and enjoined enforcement of the DCL. In February of 2017 the Trump Administration withdrew it.  In short, when it comes to education and Title IX, the “erasure” meme seriously distorts the history of civil rights law.

To the growing number of people who believe that students should be able to use sex-segregated facilities that match their gender identity, the question of the legal basis of this right is unimportant—they consider it unfair and inhumane to do anything else.  But for judges and administrators the question of legal authority cannot be so easily dismissed. Here it is important to distinguish two much different issues that are too often conjoined in the current debate. The first is whether transgender individuals can be denied benefits—usually jobs—because their “gender identity” does not match their biological sex.  For reasons laid out below, since 2000 most circuit courts have held that Title VII forbids such discrimination.

The second, more complicated issue is access to sex-segregated facilities.  No one claims that transgender students should be denied an education.  Rather, in the educational context the controversy revolves around how transgender students will be treated in those limited circumstances where schools are authorized to distinguish between male and female students. For example, Title IX specifically authorizes schools to “maintain separate living facilities for the different sexes.”  It allows father-son and mother-daughter events as long as they provide for “comparable activities” for “students of the other sex.” A non-controversial section of the Title IX regulations issued in 1975 explained that schools “may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the opposite sex.”  Those 1975 regulations also authorized “separate teams for members of each sex,” as long as male and female students were provided equal athletic opportunity. The meaning of “equal athletic opportunity” was the subject of years of intense debate. But everyone agreed that separate teams were justified by the physiological differences between males and females. Later in 1975 Congress passed the “Javits amendment” to confirm this understanding.

The 2016 DCL mandated that when schools allocate access to these separate facilities and activities, they must do so on the basis of students’ internal “gender identity” rather than their physical attributes. In other words, when the statute and regulations say “sex,” those words must be interpreted to mean “gender identity.” This interpretation is especially odd since the term “gender identity” was invented specifically to distinguish it from “sex.”  To say, as OCR did in 2016 and transgender advocates insist today, that in those limited instances when schools are authorized to segregate by “sex,” they are required to segregate by “gender identity” is to rob those words of all meaning.  

So how did several agencies and a number of federal courts arrive at this incongruous interpretation of federal law?  The answer lies in the combination of a legal argument—that Title IX prohibits all forms of sex “stereotyping”—and in an institutional pattern–one that I have called “institutional leapfrogging.” Federal judges take one step, administrators another; rinse with rhetoric about respect for coordinate branches and repeat. Each branch incorporates the initiative of the other while deny they were doing anything new.  

Before 2000 few courts had held that Title VII of the Civil Rights Act prohibits employers from discriminating against transgender employees.  That changed relatively suddenly in the early years of the 21st century.  To extend civil rights protection to transgender employees, federal courts relied almost entirely on dicta in a plurality opinion announced by the Supreme Court in a 1989 Title VII case, Price Waterhouse v. Hopkins. There, four members of the Court agreed that failure to promote a woman because she had not acted in a sufficiently “lady-like” fashion constitutes sex discrimination. An employer violates Title VII if that employer’s decisions were “likely influenced by sex stereotyping.” According to Justice Brennan’s, “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”

Although the case did not involve gender identity, the wording of the plurality opinion suggests that transgender employees cannot be subject to adverse employment action simply because they refuse to conform to “sex stereotypes”—such as the expectation that men not wear dresses and makeup or insist upon being referred to as “she.”  If Fran can do this job, what difference does it make if Fran dresses like a man or a woman? This was a bit of a stretch—but not a huge one.

The Department of Education first addressed the transgender issue (albeit obliquely) in a 2010 DCL on bullying: “it can be sex discrimination if students are harassed either for exhibiting what is perceived as stereotypical characteristics for their sex, or for failing to conform to stereotypical notions of masculinity and femininity.” As it investigated specific complaints about bullying, the agency extended its demands to cover the much different and more controversial issue, access to sex-segregated facilities.  It reached settlements with a few school districts on this topic, and then used these settlements to claim it had a long-standing policy on this topic. In its widely publicized Gavin Grimm decision, the Fourth Circuit deferred to OCR, relying on a letter from a lower-level enforcement officer ginned up to provide support for the transgender plaintiff in this case. Leapfrogging in action.

When the Trump administration withdrew the transgender DCL, transgender rights advocates could no longer rely on the “deference to agency expertise” argument.  Now they reversed course, denying that deference was due to the Department of Education, calling upon the court to engage in “de novo” interpretation of the law, and insisting that the statutory language (previously described as ambiguous enough to justify the DCL) was so clear that the Obama administration’s policy was mandated by Title IX.  The Fourth Circuit dismissed the case when Gavin Grimm graduated from high school. But two judges on that court appended an unusual memo describing Grimm as a “civil rights hero” who “knew, intuitively, what the law has in recent decades acknowledged: the perpetuation of stereotypes is one of many forms of invidious discrimination.” This case “is about much more than bathrooms,” they explained. “It’s about government validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity.”  “Validation of the existence and experiences of transgender people”—that, according to these judges, is a central responsibility of the federal government. Such judicial dicta bears a striking resemblance to the hyperbolic rhetoric cited at the beginning of this article.

In 2017 the Seventh Circuit endorsed a similar argument in Whitaker By Whitaker v. Kenosha Unified School District.  It held that both Title IX and the Equal Protection clause require schools to respect students’ gender identification when assigning them to sex-segregated facilities. Nowhere in its long opinion did the unanimous panel discuss the meaning of the key statutory word, “sex.” Instead, it focused entirely on the term invoked by the Supreme Court, “sex stereotyping.”  Echoing Justice Brennan’s plurality opinion in Price Waterhouse v. Hopkins, the Seventh Circuit panel insisted that Title IX, like Title VII, was designed “to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”  “By definition,” the court explained, “a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.” A school “policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”

To this the Whitaker panel added an Equal Protection argument. Whenever a state uses a sex-based classification, “the burden rests with the state to demonstrate that its proffered justification is exceedingly persuasive.” Here the harm done to the transgender student is severe, and the harm done to other students is “based upon sheer conjecture and abstraction.” Therefore, the school’s policy violates the Constitution. Rather than appeal the ruling, the school district settled the case for $800,000–$650,000 of which went to the student’s lawyers.

It is highly unlikely that Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh would ever accept such a broad reading of the Equal Protection clause.  But it could be many years before the Court hears a case clarifying its interpretation of Title IX; over the past 46 years the Court has only heard eight Title IX issues, none involving transgender rights.  Meanwhile we can expect many other lower court judges to endorse the Seventh Circuit’s “stereotyping” argument.

The appeal of this argument is readily apparent: no one wants to claim that they have acted on the basis of a stereotype; we pride ourselves in viewing each person as an individual.  But in the hands of some judges and administrators, cheered on by many advocacy groups and legal academics, the regulatory attack on stereotyping has been extended to an assault on almost all conventional understandings of sex, sex differences, and sexuality. No longer is the argument simply that our biology should not limit our opportunities and aspirations.  Now the argument is that gender and biology should be regarded as completely unrelated. The next step down this undeniably slippery slope is allowing athletes with male bodies to play on women’s teams.  If we continue down the path of insisting that biology should play no role in distinguishing between male and female, then the rationale for separate teams disappears.  That prospect should alarm defenders of women’s sports.That these policies are being imposed by judges and administrators interpreting vague statutory phrases rather than by elected legislators should alarm us all.

Reader Discussion

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on January 30, 2019 at 11:25:32 am

Thoughtful, informative essay; thank you.

If we continue down the path of insisting that biology should play no role in distinguishing between male and female, then the rationale for separate teams disappears. That prospect should alarm defenders of women’s sports.

A curious thing to read on the same day that I learn that the cheerleading squads at the Superbowl will be co-ed.

This quote begs the question: What would be wrong with non-gender-segregated sports? I don't mean to say that there's nothing wrong with it; I mean, literally, to ask people to articulate (1) what problems they foresee, and (2) why gender segregation is the best means to address those problems.

- If the concern is with size, then why not segregate by size? We already do this in boxing and wrestling, and kind of do it with jockeys.

- Is the issue due to a concern that testosterone gives an undue advantage? If so, then would segregating by testosterone levels be an option? The tests get cheaper by the day.

- Or is the concern that we think that co-ed competition would virtually exclude women from the winner's circle, regardless of how many other variables we control for, and we don't like that outcome?

A clear articulation of concerns would help the analysis.

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nobody.really
on January 30, 2019 at 11:54:08 am

Actually, fair questions.

Let me add another:

should we, following ADA (disability act) require that a paraplegic be permitted to use a motorized wheel chair from the batters box to first base so as to permit that person to fully experience his / her perceived (purported) existence as major league baseball player?

Now in golf, we make allowances, via the USGA Handicap system to permit a(now impaired) "hacker" such as myself to compete with a "scratch" golfer (i.e. a zero handicap rating) such as my own son a professional.
However, this is ONLY done in amateur events and not at the Professional (PGA) levels.

Shall we extend this handicap system to the professional level? Let us say that your typical beer belching softball player is desirous of playing in the big leagues. Are we to permit him to take five strikes before he is called out? Shall we reduce the length of the basepaths for him. He does identify as a "baseball" player, does he not.

A clear articulation of SOLUTIONS and underlying assumptions would help the analysis.
Then again, we do have a Judicial Department and numerous Administrative Agencies to regulate the handicap systems.

Now "Play Ball."

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gabe
on January 30, 2019 at 12:32:11 pm

Ok, if, for now, equality is the touchstone i.e. segregation is permitted, why not have three locker/bathrooms: one for non-trans bio males, one for non-trans bio-females, and one for trans of every stripe and stage. Of course, schools are not equipped for this? This is all about the creation of a "right" to be accepted and respected, which is not a God given fundamental right. And the blame is largely on retired (thankfully) SCOTUS justice Anthony Kennedy, who in Casey, a 1992 abortion case, notoriously stated "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Everyone has the right, but no one has the right to have their "own concept of existence" be recognized by any other individual or by the state, because doing so would deny other individuals of their own concept.

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Publius
on January 30, 2019 at 13:03:05 pm

Biology is biology. With a nod to the tiny minority who have chromosomal abnormalities, if you have 2xx chromosomes you are female and xy you are male. And this is true for every cell in your body. Anyone who denies their biological sex and claims to be the opposite sex is deluded. Much like anorexics are deluded by imagining they are fat.

I am not going to argue with someone in this condition but I am not prepared to ratify it. Forcing all of us to deny reality in this way is kafkaesque.

And by the way, google john money.

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Lhf
on January 30, 2019 at 13:33:34 pm

I believe it is your last suggestion. Look to the military--specifically, the infantry--for an example. In those cases, after a period of time the failure of women to qualify in "sufficient" numbers led (or so this alleged by some, denied by others) to lower the standards so that more women would qualify. Personally, I believe that the standards have probably been so lowered--de facto, ad hoc, if not de jure--and that there is a lot of pressure from military command levels whose promotion chances depend more on political decisionmakers on others down the chain to up the number of women who qualify as Rangers, Marines, fighter pilots on the quiet while publicly maintaining that standards haven't changed (and let's not forget that said standards exclude most men who apply also, which I think is a significant fact that ought to factor into the analysis more than it does). The military has not proved immune to more general societal pressures regarding the perception that women are still treated unfairly as a general matter. This is the same Army, after all, that required male cadets to march around in high heels in some sort of show of contrition/sympathy with women's general plight.

So it is entirely plausible, in my view a certainty, that desegregating sports will result over time in a change in the standards for the specific purpose of assuring more women can successfully compete with men. Take gabe's example of golf. As far as short game & putting go, I have no reason to believe that the best LPGA players could match the best PGA players. But they could not, at least not in sufficient numbers, match the men for the driving/long game. 7,000 yard courses would become a thing of the past. The long game, being discriminatory, would be phased out on the basis that it's the skill that matters, not the strength, so eventually golf will be 18 holes of par 3s. I'm not saying there can never be a few women who can match the men for driving distance/long irons, but I doubt there will be a sufficient number to satisfy the types who judge these matters mostly on aesthetics (the PGA must "look like America" or something like that).

Football has, even without the gender matter, already begun (d)evolving into a flag football state. The inclusion of women in teams would merely hasten that (d)evolution, and other changes would have to ensue. It would never be enough for our more active "social change" types, that maybe one or two women made it onto NFL teams, one as a kicker maybe, the other maybe as a wide receiver. Eventually there would be pressure to take action similar to what California just did: simply mandate a certain percentage of women on each team. Then the game would have to be revised further.

I suppose the response to this is: so what? Sports rules change over time and people keep watching, so why not change them to equalize the competitive chances of women?

To which I would reply: why? For what reason? For what compelling reason is it necessary or desirable that sports be sex-desegregated? Asserting some variant of the claim that any differentiation of men from women anywhere promotes "harmful stereotypes" generally is unconvincing. Suggesting that segregation in sports somehow keeps women unfairly out of science or business is unconvincing. Suggesting that separate women's leagues earn less money, so that top women performers are under-compensated relative to top male performers, has at least some tangible aspect to it. Combining them would be highly unlikely to achieve Pareto optimality, for while I would expect in such a case that while top women performers' income would rise absolutely, that of the top men performers would decline absolutely as I believe overall revenues would decline. That is not a certainty, of course, and to its possibility one could simply say: well, that's toxic masculinity for you; that's why we need to force men to change their behavior. Another response would be that this is just a prediction, and I'm certain we could find at least one "expert" somewhere whose "research" predicted an overall increase in revenue from combining the leagues, and that would be enough of a banner for the "change agents" to march under.

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QET
on January 30, 2019 at 13:53:20 pm

While the twists and turns of the legal reasoning are of course very interesting, in my view more attention needs to be paid to the rhetoric of the claims themselves. Claims that requiring an anatomical male who believes himself to be female to use a bathroom reserved for anatomical males is somehow a "negation of my humanity" or "invalidates my existence" etc. etc. are absurd on their face. They are rhetoric, not reason. They are easy slogans to remember and repeat, and they are repeated. And repeated and repeated. Which repetition does not increase their truth one whit.

Personally, I care little whether a man pretends he is a woman or believes himself to be one, no matter how sincerely. That's his business. But there is no legitimate theory of justice or ethics that requires me to confess, a la a modern Augsburg Confession, that he is a woman. No legitimate basis on which to coerce me into agreeing with his pretense/feeling/belief. No legitimate basis on which to coerce me into regarding him, recognizing him, relating to him, as though he were, in fact, a woman. None.

Now, as far as a change in name, while it would be difficult and uncomfortable for me, I suppose that, since if my friend Bob legally changed his name to Jim and asked that I so call him, I would make every effort to do so, so if Bob changed his name to Susan and asked me to call him by that name, I would have to make the same level of effort. But that I am a nominalist with regard to what is nominal,m does not require that I be a nominalist as to what is real, or that I otherwise agree with another's understanding of what is real.

None of this on my part can be seriously alleged to work a "denial" or "negation" of anyone's humanity or an "invalidation" of their existence. People should really argue the matter on this purported axiom than accept the axiom without comment or objection and proceed to try to work a complex legal analysis that denies the result demanded while accepting the premise.

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QET
on January 30, 2019 at 14:16:47 pm

QET:

"Suggesting that separate women’s leagues earn less money, so that top women performers are under-compensated relative to top male performers, has at least some tangible aspect to it."

And here, we once again return to the same old fallacious belief that a) we can change a market, be it of ideas, reality / perceptions and b0 that we are BLOODY WELL ENTITLED to do so.

As for compensation of female athletes, the Proggies see discrimination. I, TOO, see discrimination in this matter. It is the discrimination that we all make when we choose to watch one sporting event or another. The human species is THE discriminating animal - we select from a choice of options. goodness, are we not here describing a "market' function. I choose to watch the NFL or the PGA tour. I choose NOT to watch Womens Basketball. The market determines the amount of revenues available to the team owners and the players.
Yet, that is, according to the leading Proggie "pund-idiotocracy", insufficient cause for lower compensation to female athletes and as a consequence we must deny market realities in much the same manner as the Proggies seek to deny the reality of biology. As Lhf states below, "every single cell' in ones body carries its own unique chemistry, and that chemistry is a function on one biological sex.
But what is a mere matter of biology when there are atavistic deplorables to hoist on the petard of human sexual / gender equality.

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gabe
on January 30, 2019 at 14:47:24 pm

We cannot get away from identity (we will not escape from thinking about ourselves and our culture in identity terms). So, what is to be done? Identity is the powerful moral idea that has come down to us and it has crossed cultures as it builds on the universal human psychology of thymos (Frank Fukuyama). That is, Regulating Identity in a liberal democracy not only confronts the logic of identity politics (which has its own dynamic) but also elides the causes of modern society begetting demands for recognition by hereto previously invisible advocates.

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Anthony
on January 30, 2019 at 14:51:26 pm

I don't disagree, but the Proggies will continue to believe and argue that a market, being simply a way to describe human behavior under certain conditions, can in fact be changed by "transforming" the behavior of the humans. Thus will they justify to themselves their programme of repression, complete with their inquisitions and autos-da-fe and continue happily along. All they have to do is work the change (the sex-desegregation). Once that is done, then in the near term their "research" vanguard will publish "research" showing that overall revenues have in fact increased (chocolate ration doubled) and then, after a couple of generations, no one will be left to remember the segregated leagues and argue for the inferiority of the combined league. The combination of their unrelenting coercion of weaker wills, propaganda ("research," "studies") and time will entrench their desired result. At least, I believe such an outcome to be probable unless more resistance is offered to these new Soviet people.

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QET
on January 30, 2019 at 16:10:09 pm

gabe:

should we, following ADA (disability act) require that a paraplegic be permitted to use a motorized wheel chair from the batters box to first base so as to permit that person to fully experience his / her perceived (purported) existence as major league baseball player?

Now in golf, we make allowances, via the USGA Handicap system to permit a(now impaired) “hacker” such as myself to compete with a “scratch” golfer (i.e. a zero handicap rating) such as my own son a professional.
However, this is ONLY done in amateur events and not at the Professional (PGA) levels.

QET:

it is entirely plausible, in my view a certainty, that desegregating sports will result over time in a change in the standards for the specific purpose of assuring more women can successfully compete with men. Take gabe’s example of golf.

Odd that both gabe and QET mention golf, yet neglect to mention PGA Tour, Inc. v. Martin, wherein the Supreme Court held that the Americans with Disabilities Act required the PGA to permit competitors to use a golf cart to get from hole to hole, rather than walk as prescribed by the rules. In short, we ALREADY modify sports to accommodate people with different abilities. This fact is so commonplace that even people who grumble about flexing to accommodate gender differences no longer feel the need to acknowledge the other forms of accommodation.

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nobody.really
on January 30, 2019 at 16:26:27 pm

Call me when the Court requires that courses be shortened to accommodate people with disabilities. In fact, why not make a name for yourself and bring a claim under the ADEA, and get the Court to hold that the statute requires courses be shortened so that 70 year-olds are not discriminated against by virtue of the 500+ yard par 4s now commonplace? Why do we segregate by age?

And in fact, those par 4s themselves are modifications designed to accommodate the differently-abled: Tiger et al. who got to where they can drive 400 yard par 4s. So you're right, sports are always changing their rules to address differences in ability. Also, the PGA (or USGA, or both) at some point, maybe more than once, have changed their rules regarding club design and construction, to allow for deeper grooves and perimeter weighting and all that (some people just can't compete if they have to use the old blades). And if, according to your penchant for abstract modeling, Accommodation = Accommodation, then all accommodations are identical therefore there can be no rational basis for refusing any accommodation requested or demanded whatever.

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QET
on January 30, 2019 at 16:45:19 pm

"then all accommodations are identical therefore there can be no rational basis for refusing any accommodation requested or demanded whatever."

And THAT is precisely both the intent and the effect of all these false equivalencies advanced by the likes of Nobody.really.

I would add for nobody's benefit that:
a) Scalia described not only the judicial determination but also the decision to even hear the case as "Silly." I agree.
b) As Sean connery said to Elliot Ness in the Untouchables, "herein lieth the lesson." In golf everyday golf, many many people use powered carts. In fact, even the PGA tour, on a rather limited basis, allows for the use of powered carts. Watch the tournament of Champions played each year at Kapalua (a course I Iove AND where I eagled the 18th hole, BTW). Between 8th hole and the 9th and then the 10th tees, players are driven by power cart. So golf does permit it in some circumstances - specifically because of the difficulty of the terrain. Why do they allow this at Kapalua. Having been foolish enough to walk the course, I can attest to the difficulty of traversing all the elevation changes AND can attest that such exertion MANIFESTLY affects one's ability to score. The PGA tour recognizes these exceptional circumstances; BUT, implicit in this recognition is the belief (proper, I may add that "walking is an integral part of the Professional game and that a modern athlete is expected to maintain a certain level of fitness if he OR she is to compete effectively. Yes, accommodate (this damn spellchecker?) the disabled where possible BUT not at the expense of the integrity / basic nature of the game. A motorized chart, except under the exceptional circumstances outlined above diminishes the entire game, Professional game, that is, as well as the skill, competitiveness and effort required of a Professional Golfer ( also baseball / football / hockey players).

And BTW:

Why is there no special outcry for Hockey players whose remuneration is significantly lower than for the opther major sports. Indeed, some Ladies PGA types make more money than do hockey players.
Oh, the Bloody Humanity, the Sexism of it All.

QET: Do you still golf? Hope so - it is game for a lifetime.

seeya

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gabe
on January 30, 2019 at 17:46:32 pm

(Francis Fukuyama).

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Anthony
on January 30, 2019 at 20:54:07 pm

Yeah, I think especially in the US Open, in the heat and humidity that sometimes are present, is the physical exertion of walking the course over 4 days-72 holes (5-90 if there is a playoff) a non-trivial factor in the contest. But I am pretty sure that the PGA pros weren't too worried about a competitive advantage to Casey Martin (not the top players anyway); like most of us in our guilds and clubs and professions and associations, they felt constrained to take the official position that the rule had to be enforced because it was a duly promulgated rule and had a reasonable basis, and that they had a right to make the rule though it might work a hardship on some people. Failure to defend the rule would suggest that any rule was arbitrary and ought to be changed to suit someone else's requirements; defense of the rule was easily portrayable as insensitivity to a poor guy with a rare medical condition who otherwise had enough skill to contend for a spot on the tour.

I golfed for years; then not. Might again if the back cooperates. I was never good, not even by the usual not good standards.

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QET
on January 30, 2019 at 20:57:22 pm

As far as short game & putting go, I have no reason to believe that the best LPGA players could match the best PGA players

Of course I meant that I have no reason to believe that the best LPGA players could not match the best PGA players.

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QET
on March 20, 2019 at 02:51:49 am

Sounds like a GREAT regulation!! They should pass it without care for FEELINGS in this matter. The world is Godless in that the wicked LGBT have been permitted to run it by their subjective and pathetic feelings.

If they don't commit suicide, the normal people just might.

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Image of Rosanna R Miller
Rosanna R Miller

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