Sex and Gender Segregation in Competitive Sport: Internal and External Normative Perspectives

What are the justifications for mandatory sex segregation in competitive sport, and what are the arguments against it? This article takes up these questions. I argue that justifications of sex segregation in sport should be sensitive to two distinct perspectives that can come into play. The “internal” perspective emphasizes considerations rooted in an ethos of athletic competition. The “external” perspective brings into focus broader social norms such as anti-discrimination principles and equality goals. Both perspectives support the general idea of separate men’s and women’s competitions, at least in elite levels of sports that reward physical strength and power. The perspectives may diverge, however, on specific questions about who should be permitted to compete in each division, and more particularly, on the appropriate treatment of transgender athletes. What is important to see is that objections that arise from the external vantage point of equality and anti-discrimination cannot be fully answered by appeal to internal considerations about the competitive integrity of sport. Institutional decisions to exclude classes of individuals from participating in men’s or women’s competitions must consider not only what would be best for the sport, but what is required by antidiscrimination principles and genuine commitment to respect for gender identity and expression

Showcasing Diversity

Diversity initiatives are commonplace in today’s corporate America. Large and successful firms frequently tout their commitments to diversity, sometimes appointing women and racial minorities to highly visible posts, including seats on their boards of directors. Why would a profit-minded firm engage in such behavior? One frequently voiced explanation is that by creating such diversity, firms send out a positive signal about their attributes: a firm’s willingness to expend resources on diversity shows its commitment to workplace fairness and equality, which makes it more attractive to potential employees, customers and financiers. This claim has considerable surface appeal not only as an explanatory thesis, but as a rationale that conveniently bridges the normative gap between corporate self interest and the promotion of social justice. In this article, we raise some difficulties with the theory of diversity-as-signal in terms of both its explanatory adequacy and its normative implications

Showcasing Diversity

Diversity initiatives are commonplace in today’s corporate America. Large and successful firms frequently tout their commitments to diversity, sometimes appointing women and racial minorities to highly visible posts, including seats on their boards of directors. Why would a profit-minded firm engage in such behavior? One frequently voiced explanation is that by creating such diversity, firms send out a positive signal about their attributes: a firm’s willingness to expend resources on diversity shows its commitment to workplace fairness and equality, which makes it more attractive to potential employees, customers and financiers. This claim has considerable surface appeal not only as an explanatory thesis, but as a rationale that conveniently bridges the normative gap between corporate self interest and the promotion of social justice. In this article, we raise some difficulties with the theory of diversity-as-signal in terms of both its explanatory adequacy and its normative implications

Discrimination Under a Description

In debates about the permissibility of certain kinds of differential treatment, our judgments often seem to depend on how the conduct in question is described. For example, legal prohibitions on same-sex marriage seem clearly impermissible insofar as they can be described as a form of sex discrimination, less clearly so, at least under federal law, if described simply as sexual orientation discrimination, and arguably not discriminatory at all insofar as they constitute a universally-imposed disability on marrying within one’s own sex. It seems, in other words, that the prohibition of same-sex marriage constitutes legally impermissible discrimination under some descriptions but not under others. The problem, or so I will argue, is that none of the available descriptions seems to be uniquely correct. But if our judgments of permissibility depend on a choice among equally veridical descriptions, how can those judgments be justified? In this article, I explore this “problem of description” and discuss how the law should choose between alternative characterizations of disputed conduct for the purpose of judging whether it constitutes impermissible discrimination. Drawing on case law and literature relating to sexual orientation discrimination and the constitutionality of the prohibition of same-sex marriage, I attempt to disentangle the various issues embedded in disagreements about the proper description of ostensibly discriminatory conduct and to expose the substantive values that are truly at stake. I show how giving legal effect to one description to the exclusion of another always implies a principle governing the relative priority of the policies implicated by the competing alternative descriptions, and that the defensibility of the choice of description depends ultimately on the justifiability of that principle of priority

Sex and Gender Segregation in Competitive Sport: Internal and External Normative Perspectives

What are the justifications for mandatory sex segregation in competitive sport, and what are the arguments against it? This article takes up these questions. I argue that justifications of sex segregation in sport should be sensitive to two distinct perspectives that can come into play. The “internal” perspective emphasizes considerations rooted in an ethos of athletic competition. The “external” perspective brings into focus broader social norms such as anti-discrimination principles and equality goals. Both perspectives support the general idea of separate men’s and women’s competitions, at least in elite levels of sports that reward physical strength and power. The perspectives may diverge, however, on specific questions about who should be permitted to compete in each division, and more particularly, on the appropriate treatment of transgender athletes. What is important to see is that objections that arise from the external vantage point of equality and anti-discrimination cannot be fully answered by appeal to internal considerations about the competitive integrity of sport. Institutional decisions to exclude classes of individuals from participating in men’s or women’s competitions must consider not only what would be best for the sport, but what is required by antidiscrimination principles and genuine commitment to respect for gender identity and expression

Discrimination Under a Description

Discrimination Under a Description .......................... Patrick S. Shin 1In debates about the permissibility of certain kinds ofdifferential treatment, our judgments often seem to dependon how to conduct in question is described. For example,legal prohibitions on same-sex marriage seem clearlyimpermissible insofar as they can be described as a form ofsex discrimination, less clearly so, at least under federallaw, if described simply as sexual-orientationdiscrimination, and arguably not discriminatory at allinsofar as they constitute a universally imposed disabilityon marryingwithin one\u27s own sex. It seems, in other words,that the prohibitionof same-sex marriage constitutes legallyimpersmissible discrimination under some descriptions butnot under others. The problem, or so I will argue, is thatnone of the available descriptions seems to be uniquelycorrect. But if our judgments of permissibility depend on achoice among equally veridical descriptions, how can thosejudgments be justified? In this Article, I explore this\u27problem of description and discuss how the law shouldchoose between alternative characterizations of disputedconduct for the purpose of judging whether it constitutesimpermissible discrimination. Drawing on case law andliterature relating to sexual-orientation discriminationandthe constitutionality of the prohibition of same-sexmarriage, I attempt to disentangle the various issuesembedded in disagreements about the proper description ofostensibly discriminatory conduct and to expose thesubstantive values that are truly at stake. I show howgiving legal effect to one description to the exclusion ofanother always implies a principle governing the relativepriority of the polices implicated by the competingalternative descriptions, and that the defensibility of thechoice of description depends ultimately on the justifiabilityof that principle of priority

Treatment as an Individual and the Priority of Persons over Groups in Antidiscrimination Law

The Supreme Court has said that the Equal Protection Clause of the Constitution and Title VII’s prohibition of discrimination require that all persons be treated as individuals and that the laws operate primarily to protect “persons, not groups.” This article shows that the legal requirement of individual treatment has two distinct components: a rule invalidating inferences about persons based on their membership in protected groups and a rule prohibiting disparate treatment for the sake of group interests or intergroup equality. The first rule is rooted in moral principles of respect for individual autonomy. The second rule is a principle that gives lexical priority to individual rights over group welfare. Both are formal, anti-classification rules that abjure reliance on group concerns, and both are central to antidiscrimination law. Neither rule, however, mandates group-blindness or entails the categorical irrelevance of group classifications. Antidiscrimination law cannot be completely understood without reference to goals of substantive intergroup equality. The rules of individual treatment and the protection of “persons, not groups” represent formal constraints on the means by which substantive equality can be sought. They should not be mistaken as substitutes for it

Compelling Interest, Forbidden Aim: The Antinomy of Grutter and Gratz

This article explores the tension between the Grutter Court\u27s capacious account of the value of racial diversity, on the one hand, and the Gratz Court\u27s insistence on the constraining mechanism of individualized consideration, on the other. The article examines whether the promotion of diversity as a compelling interest can be reconciled with the requirement of individualized consideration under any coherent principle of equal treatment. The article concludes that the only way this can be done is to interpret the cases as rejecting the proposition that \u27racial\u27 diversity represents a compelling governmental interest and as implicitly adopting, instead, the idea that race is at most an information-bearing proxy for diversity conceived in terms of some race-blind modality