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80 Law & Contemp. Probs. 47 (2017)
Sex and Gender Segregation in Competitive Sport: Internal and External Normative Perspectives

handle is hein.journals/lcp80 and id is 837 raw text is: SEX AND GENDER SEGREGATION IN COMPETITIVE SPORT: INTERNAL AND EXTERNAL NORMATIVE PERSPECTIVES PATRICK S. SHIN* I INTRODUCTION A common credo in modern sports is that athletic competition transcends human social difference; within the arena of competitive sport, a person's performance is the only thing that matters.' But at the same time, in many sports, participants are placed into separate classes that are prevented from mixing in competition. Adult males do not compete against young boys in weightlifting contests; high school varsity teams generally play against other varsity teams; boxing matches do not pit heavyweights against lightweights. This kind of segregation is presumably uncontroversial. Indeed, some might say that competitions among participants of vastly differing capabilities are inherently unfair. Furthermore, separating athletes into different competitive categories is arguably good for sport because it fosters broader participation and allows for recognition of accomplishments at multiple levels of capability and performance. The separation of men and women in sports is commonly justified by similar considerations relating to competitive fairness and promotion of broad and equal participation.3 Yet, in contexts outside of sport, sex- and gender-based classifications' are subject to strict social, legal, and moral proscriptions. The practice of segregating men and women in competitive sport is so commonplace that one might assume that it must be legally and morally benign, or perhaps even required as a matter of fairness. Bringing sex and gender discrimination analysis Copyright D 2018 Patrick S. Shin. This article is also available online at http://lcp.law.duke.edu/. Associate Dean and Professor of Law, Suffolk University Law School. 1. See Pam R. Sailors, Conceivable Horizons of Equality in Sport, in THE BLOOMSBURY COMPANION TO THE PHILOSOPHY OF SPORT 295, 295 (Cesar R. Torres ed., 2014). 2. See DREW A. HYLAND, PHILOSOPHY OF SPORT 62-63 (1990). 3. See id. at 62: HEATHER L. REID, INTRODUCTION TO THE PHILOSOPHY OF SPORT 161 (2012); Doriane Lambelet Coleman, Sex in Sport, 80 LAW & CONTEMP. PROBS., no. 4, 2017, at 84. 4. The term sex is used herein to refer to biological sex, and gender is used to refer to gender identity or expression. The terms man and woman are used equivocally to refer to either sex or gender. Male and female are used specifically to designate categories of biological sex. Following Doriane Coleman's usage at a recent symposium (Doriane Lambelet Coleman, Professor of Law, Duke University School of Law, Speech at the Law & Contemporary Problems Symposium (Aug. 26, 2017)), I use the term intersex to name a biological category whose members are neither fully male nor female. Transgender refers to the category of persons who identify with a gender that does not correspond with their actual or perceived biological sex, as well as persons who identify as gender non-binary, genderfluid, or agender.

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