The Transgender Athlete Debate and the Limits of Inclusion in Sports

Should governing bodies bear the burden of proof when determining who is eligible to compete in women’s sports?
Martin Fritz Huber Jun 28, 2022


A few years ago, the journalist Michael Lewis started a podcast called “Against the Rules.” The first episode had the promising title “Ref, you suck!” and began with the simple observation that animosity towards NBA referees seemed to be at an all-time high. This, Lewis eventually argues, is consistent with a larger trend of distrust and anger towards individuals and institutions who are supposed to be the arbitrators of fairness in our society. Imagine that.

I was reminded of Lewis’s premise earlier this month after the UCI, cycling’s global governing body, announced that it would be adopting a more stringent policy for transgender participation. Beginning July 1, transgender athletes wishing to compete in the female category will need to have testosterone levels of 2.5 nmol/L or lower (down from the previous 5 nmol/L), and have undergone at least 24 months of medical transitioning (up from the previous 12 months). In response, Emily Bridges, the trans rider whose prospective participation in the British National Omnium Championships was blocked by the UCI at the last minute back in March, accused the governing body of “moving the goalposts” on trans inclusion. Meanwhile, the sports scientist Ross Tucker, who has argued that the physical advantages of going through male puberty can never be entirely erased through testosterone suppression, blasted the UCI for being too lenient and ignoring the wishes of cisgender female cyclists. The critical response from both sides of the debate recalled the old axiom that a compromise is sure to make everyone unhappy. Ref, you suck!

Of course, such an outcome might be inevitable in a matter where sports governing bodies might ultimately need to decide whether to prioritize fairness at the expense of inclusivity, or vice versa. If we accept at the outset that a perfect resolution does not exist, the best we can do is to hone in on a particular aspect of the discussion. One place to start is the issue of who should hold the burden of proof when it comes to proving an unfair advantage.

At the risk of oversimplification, the question is as follows: If sports governing bodies have a restrictive policy vis-a-vis transgender athlete participation in the female category, is it their responsibility to prove that transgender women have an unfair competitive advantage over cisgender women? Or, conversely, do transgender women who wish to compete in the female category need to prove that they do not have such an advantage?

“The Court of Arbitration for Sport has made it very clear that the burden of proof lies with sports-governing bodies that attempt to introduce rules restricting, let alone banning, women from the women’s category,” says Joanna Harper, a trans woman, master’s runner, and medical physicist who has consistently held the position that trans women should be allowed to compete in the women’s category in elite-level sports after undergoing a period of testosterone suppression. Harper was referring in part to the Court of Arbitration for Sport’s 2015 decision in favor of the Indian sprinter Dutee Chand, whose natural testosterone levels were unusually high—a condition that World Athletics refers to as a “difference of sexual development,” or DSD. The court ultimately ruled to suspend the World Athletics regulations that barred women from competing if their testosterone levels were above 10 nmol/L. At the time, the CAS decision noted that WA “has not discharged its onus of establishing that the Hyperandrogenism Regulations are necessary and proportionate to pursue the legitimate objective of organizing competitive female athletics to ensure fairness in athletic competition.”

In a similar vein, last November, the International Olympic Committee issued a document asserting that it would no longer be involved in setting eligibility regulations for trans women athletes and that individual sports governing bodies needed to set their own standards. (The previous IOC policy had mandated one year of testosterone suppression and maximum T levels of 10 nmol/L across the board.) Instead, the IOC offered a framework for how governing bodies should approach the issue, which stipulates that, unless peer-reviewed evidence determines otherwise, “athletes should not be deemed to have an unfair or disproportionate competitive advantage due to their sex variations, physical appearance, and/or transgender status.”

Tucker has been one of the more outspoken critics of this approach. In a recent interview with the BBC, he argues that the IOC’s trans policy “got it backwards” by starting from a position of inclusion. When I reached out to him to elaborate, he made the point that the principle of exclusion is a prerequisite for a category to function as a category in the first place. His argument is that there is a logical fallacy in simultaneously holding that a separate women’s category is necessary and assuming that trans women have no advantage until it is proven otherwise. Or, as Tucker put it to me: “To argue that inclusion should be the default for people who wish to enter the category despite having the very attribute that the category exists to exclude, is basically to argue that the category purpose and necessity are not ‘real,’ or should be dismissed in importance.” Hence: “it should be incumbent upon those who are necessarily excluded to show why and how they don’t violate that category’s existence.”

Here, Tucker is essentially echoing the argument for “necessary discrimination” that the Court of Arbitration for Sport cited to uphold WA’s updated testosterone regulations for DSD women in 2019 when they were challenged by the South African 800-meter runner Caster Semenya. As Tucker explained it to me, the reason why WA was able to win a dispute similar to the one that they had lost several years earlier was that they had successfully (albeit controversially) reframed their case; rather than arguing that women with naturally high testosterone had an unfair advantage over other female athletes, they changed tack to argue that DSD athletes were “biologically male athletes with female gender identifies” and that, in the context of elite sport, a binary male-female divide was essential to ensure meaningful competition.

It’s worth noting here that Tucker was actually an expert witness testifying on Semenya’s team in the 2019 CAS case. Before the trial commenced, he co-authored a paper in the International Sports Law Journal which skewered a 2017 WA-funded study that purported to prove that female athletes with high testosterone levels had a significant competitive advantage. The study was so rife with errors and bogus data points that not to challenge it would have been “an abdication of knowledge,” as Tucker put it to me. But in changing their fundamental argument, WA effectively downplayed the relevance of their own crappy evidence. (Although that crappy evidence is why we currently have the absurd situation where the DSD T-regulations in women’s athletics only apply to track events from the 400-meters to the mile.) Of course, and as Harper emphasized to me, WA ultimately still bore the burden of proof in the Semenya case—but they were able to win by changing the terms of the debate. The burden of proof, in other words, can be a slippery concept.

For now, the controversy over DSD athletes, which was largely specific to the world of professional track and field, has been subsumed by the broader debate around transgender athletes. Last week, after the news broke that swimming’s global governing body FINA had unveiled a new policy that effectively banned transgender women from elite female competition, WA’s president Seb Coe praised the move as being “in the best interest of its sport.” There has since been speculation that WA could soon follow suit by scrapping its hard-won testosterone regulations in favor of a similar blanket ban. Meanwhile, Harper told me that she “assumes that there will be a CAS case involving a trans woman and a sports governing body in the near future.” I wouldn’t bet against it.

The Myth That May Have Doomed the Titan

June 28, 2023

OceanGate Expeditions’ Titan submersible.OceanGate Expeditions, via Associated Press

By Naomi Oreskes
Dr. Oreskes is a professor of the history of science at Harvard and the author of “Science on a Mission: How Military Funding Shaped What We Do and Don’t Know About the Ocean.

As details emerged about the implosion last week of the Titan submersible in its descent to the wreck of the Titanic nearly two and a half miles below the surface of the North Atlantic, there was widespread anger that its owner and pilot knowingly took civilians on an uncertified vessel to a depth of crushing pressure.

The billionaire investor Ray Dalio, who founded the ocean exploration company OceanX with his son, Mark, expressed what he described on Twitter as his “great anger.” He accused Stockton Rush, the chief executive of OceanGate, who was piloting the Titan, of “reckless disregard for tried-and-true safety protocols that have made manned submersible exploration extremely safe.” Within the oceanography community, that view was widely held.

Mr. Rush, trained as an aerospace engineer, had justified his decision not to have his vessel certified for safety by arguing that the regulatory process stifled growth and innovation.

“At some point, safety just is pure waste,” Mr. Rush said in an interview with David Pogue of CBS. He even suggested that safety was used as an excuse by “industry players who try to use a safety argument to stop innovation.” OceanGate put it this way on its website: “By definition, innovation is outside of an already accepted system.”


In Mr. Rush’s telling, innovation was the province of maverick individuals, not stodgy legacy players and certainly not cumbersome government bureaucracies. Mr. Rush was perpetuating a myth — one that is particularly popular in Silicon Valley and among technology start-ups — that governments are just an obstacle and that innovation comes from bold trailblazers moving fast and breaking things.

That story is often wrong, and it was 100 percent wrong in this case.

The first two deep-diving submersibles built in America were developed by the United States government and the Woods Hole Oceanographic Institution to assist in salvage operations at sea and to install and monitor Cold War underwater listening systems, including the original version of the system that detected the implosion of the Titan.

In the 1930s, civilian oceanographers were studying a layer in the ocean where temperatures and pressures channeled sound in a way that enabled it to travel very far. Realizing this could be a powerful military communications tool, they worked with the U.S. Navy to develop technologies that exploited this sound channel. The most important of these technologies was SOSUS — the Sound Surveillance System — a complex network of listening devices called hydrophones on the sea floor designed to detect prowling Soviet submarines.

By the late 1950s, SOSUS encompassed more than 1,000 hydrophones and 30,000 miles of undersea cables and could detect sounds hundreds of miles away. But this network required monitoring, inspections and repairs. In the early 1960s, scientists and engineers at Woods Hole collaborated with the U.S. Office of Naval Research and the U.S. Navy Bureau of Ships to conceptualize and commission two radically innovative vessels to do that work: Aluminaut and Alvin.

As its name suggests, Aluminaut was developed with the Reynolds Metals Company, one of the largest aluminum companies in the world. It was expensive — the original expected cost was $3 million for construction and two years of operation — but the Navy was willing to take the risk, given the potential rewards. What the Navy and Woods Hole were not willing to do, however, was to risk lives. A Woods Hole engineer, James Mavor Jr., stressed that while Aluminaut was experimental, it still needed to be designed and tested as a “future operating vehicle.” No one wanted an experiment once people were in it underwater.


Aluminaut was not a success; the parties involved in its development could not agree on terms and parted ways. But a different submersible, Alvin, did succeed. In 1962, Woods Hole put out a call for bids for a titanium-hulled submersible; the winner was the electronics division of General Mills. Mostly known as a cereal maker, General Mills was in fact a highly innovative company. Among its developments was a black box flight data recorder in partnership with the University of Minnesota.

The contract called for Alvin to be built in less than a year so that it could be used in the scheduled installation of a new underwater listening system in Bermuda, but a scientific advisory committee warned about the risks of rushing: “While the delivery date is important for the accomplishment of a particular mission, failure to meet the time requirement will not prejudice the general usefulness of the vehicle.”

The committee was right. General Mills missed the deadline for the Bermuda project, but Alvin went on to play leading roles in the agonizing effort in 1966 to recover a lost H-bomb from the Mediterranean Sea and the scientific discovery of complex biological communities at deep-sea hydrothermal vents. While Alvin has endured various accidents and incidents over its long career, no one has ever died in it.

Like the internet, submersible technology was commercialized in the private sector, but it was the government, not the private sector, that took the initial risks. The key participants were not disrupters; they were seasoned professionals working inside established institutions, including the industrial giants Reynolds Metals and General Mills, and the giant government bureaucracy that was the U.S. Navy Bureau of Ships, now called the Naval Sea Systems Command.

Critics may argue that regulations have of late become more cumbersome, which may be true. But the history of submersibles proves that innovation can develop in many contexts and without putting lives at risk. And the loss of the Titan proves that even in a mature industry, you still need regulation. Regulation may slow things down, but it also saves lives. Sometimes slowing down is a good thing.

Naomi Oreskes is a professor of the history of science at Harvard and the author of numerous books, including “Science on a Mission: How Military Funding Shaped What We Do and Don’t Know About the Ocean” and “The Big Myth: How American Business Taught Us to Loathe Government and Love the Free Market.”She is also a visiting fellow at the Berggruen Institute in Los Angeles.

Victor Davis Hanson, Ph.D.

Part One - June 6, 2023


We can calibrate the decline in the quality of American life by comparisons to both societies of the past and contemporary civilization elsewhere. And the result is not encouraging for Americans.


I believe I may have visited 80 percent of the so-called first world countries in Europe and the Middle East, and in most of the major capitals and large cities—Amsterdam, Athens, Berlin, Brussels, Budapest, Lisbon, London, Madrid, Nicosia, Paris, Prague, Rome, Warsaw, etc., as well as the first-, second-, and third-world non-European cities of Algiers, Amman, Ankara, Baghdad, Beirut, Cairo, Damascus, Istanbul, Jerusalem, Kuwait City, Riyadh, Tel Aviv, and Tripoli.


Over the last 40 years, I have had major surgeries in these cities, stayed in “bad areas,” lived for nearly three years abroad, and traveled to their hinterlands. I have been a journalist who visited Iraq twice during the surge of 2006–07, was in Israel during the worst of the suicide bombings, lived in Athens during the 1973 coup and 1974 war in Cyprus, and visited for two weeks Egypt just after the Yom Kippur War. I have seen firsthand the toxic work of dictators like Khadafi, the violence of the PLO, the changes in Erdogan’s Turkey, and the incompetence of socialists in Europe.


And yet, I never saw in the slums of old Cairo or in the worst environs of Brussels and Naples, or amid the poverty of 1970s rural Turkey anything like what I saw in San Francisco this year and last. The undressed on Market Street and near Union Square were routinely smoking dope, injecting drugs, defecating, urinating, and in various states of pre-civilized behavior. The homeless enclaves of Los Angeles are worse. Were these scenes being filmed for The Last of Us?


Beautiful office buildings were empty. Former stores were shuttered.


I don’t think in the dark days of the Iraq surge, I saw routine smash-and-grab or carjacking to the extent of what routinely goes on in our major cities. I wore body armor in Iraq each day and evening when on patrols with soldiers, and felt much safer than I would after hours on the weekends in Chicago, Baltimore, Memphis, or Detroit.


I was operated on for a ruptured appendix and peritonitis on a wooden table with only an ether fix in a Red Crescent clinic in Khadafi’s Libya, and yet I felt the third-world clinic care in terms of the clientele and fellow patients was less scary than what I have witnessed in ER rooms in the Central Valley of California or in Tucson or Washington, D.C.


I used to define America as hyper-civilized by the courtesy and professionalism of its drivers—not far behind those in Canada, the UK, and Australia—especially in comparison to the road madness in Rome or Athens, or Cairo.


But no longer. The daily fare of the Fresno Bee is a recitation of high-speed wrecks, carjackings, fatal DUIs, and hit-and-run smash-ups. When I drive rural roads in central California, I expect that one out of five cars coming in my direction will be drifting into my lane, either due to incompetence, unfamiliarity with U.S. traffic laws (27 percent of Californians were not born in the U.S.), intoxication or drug euphoria—or texting.


Walking in downtown or midtown New York, or in Washington, or Seattle stinks more than I remember of the corniche in Beirut or the harbor promenade in Alexandria. I am much more likely to be accosted by an obnoxious stranger, homeless person, or would-be criminal in downtown LA, San Francisco, or Portland than in Brussels or Naples—and that is saying something given the latter two disasters. I do not think in Paris or Amman people walk into stores, rob them, and walk out with impunity, with the knowledge that clerks will be fired for reporting their thefts.


Part Two - June 7, 2023


When I drive in rural California and see the shacks, trailers, and compounds of 30-40 persons living in ad hoc shelters with Romex wire and water hoses attached to a small farmhouse, I conclude that this poverty is much more a third-world scene than I remember of Tunisia, Algeria, or Turkey.


Or for that matter, the countryside of northern Mexico seems less impoverished than life outside Mendota, San Joaquin, Orange Cove, or Parlier, California. I would take my chances walking at night in Kuwait City over Minneapolis and would likely find a public restroom on California’s I-5 or the 99 dirtier than its counterpart in rural Greece.


Students that I have met in rural Greece were far better educated than their age counterparts in California. Spaniards in the countryside seemed to know more about America than American teens in New York or Philadelphia.


Japanese or Kuwaiti exchange students I had in college were far better educated than most of my own CSU (California State University) students. When I taught at Pepperdine, I explained to Chinese students why they rightly seemed afraid to drive alone into most areas of Los Angeles after hours.


My point? The basics of life, especially in our major cities—health care, safety, cleanliness—have reached medieval proportions.


Or to put it more accurately, there are very different Americas. A sophisticated successful suburban America maintains more or less life as unchanged from the 1970s or 1980s and remains comparable to or better than what is found in Europe.


And then there are red-state rural countryside and small towns that likewise are still civilized.


But in a third of America in parts of the suburbs surrounding the major cities and the cores of almost all our major cities, life is truly third or fourth-world. The ERs are dirty, broke, and mostly exist to attend to evening gunshot wounds and other sorts of inner-city violence.


Garbage piles up on sidewalks around stuffed cans and bins. It is hard to judge whether the smell of marijuana or feces is the stronger odor.


I lost my wallet once in Athens, and it was returned in two hours. I have lost glasses, wallet, and cell phones in my hometown of Selma and usually, they were never returned, or within hours I had thefts show up on my credit cards.


If my car broke down on the side of a freeway, I would prefer it happened in Israel, Germany, or Portugal than in California. There are more broken appliances and wet garbage tossed along the roads of Fresno County than there are in supposedly ragtag Italy.


None of this was true just 20 years ago. When I meet a teen or 20-something person today, I assume he is poorly educated and knows almost nothing about his own country, Gettysburg, World War I, or the Supreme Court. I can be assured only that he is programmed to have the correct ideas about diversity, transgenderism, or the pathologies of his country.


Ignorance and arrogance are a fatal combination, especially when combined with a therapeutic society that has abandoned meritocracy and feels social acceptance and career advantage are found in trashing one’s own culture.


What explains this decline, a decay so rapid that it seems surreal, fantasy-like? How did slow erosion accelerate to produce an unrecognizable country, in which nothing is secure, nothing reliable, nothing predictable anymore?


Part Three - June 9, 2023


Another sign of decline is the weaponization and politicization of institutions. Decadent societies indict their former leaders upon leaving offices. Those in power sic federal agencies on their opponents.


In turn, bureaucrats become agents of those in power, as if in private service—like laptop suppression, diary retrieval, performance-art raiding and arresting, or finding a presidential son’s missing gun.


The Biden family may well have pulled off the greatest pay-for-play grifting scam in presidential history, one that encompassed a decade of selling access to Vice President Biden and supposedly someday President Biden. That the entire kleptocracy will likely only be prosecuted if a Republican administration returns to power is again proof of our third-worldism.


The careers of John Brennan, James Clapper, James Comey, Anthony Fauci, Lois Lerner, Andrew McCabe, Lisa Page, Peter Strzok, and Christopher Wray were weaponized. The above either lied under oath when pressed, suppressed an email trail that exposed their culpability or worked hard to discredit or destroy a political candidate they opposed, or simply stonewalled when asked under oath for accountability.


In third-world America, Matt Taibbi testifies about the abuse and politicization of federal agencies and upon return to his home finds an IRS note requesting a meeting. An Alvin Bragg finds no actionable writ of “falsifying business records” to lodge against private citizen and ex-president Trump but mysteriously does rediscover grounds for a 34-felony-count indictment on now presidential candidate Donald Trump.


When the FBI shows up at school board meeting on the prompt of the teachers’ union hierarchy, or Hillary Clinton destroys with impunity thousands of email records under court subpoena, or during the Roe versus Wade controversies, the FBI starts monitoring traditional Latin-mass Catholic services, or the U.S. military begins sponsoring drag queen shows on military bases, or the President and the Homeland Security secretary condemn as guilty border patrol agents for the fantasy crime of “whipping” illegal alien border crossings as preludes to an announced “investigation,” then we know the U.S. has gone full Brazil, Lebanon, or Congo.


There used to be far more accidents, crashes, mayhem, and chaos in the third world than in America because of an absence of meritocracy. Things break and never get repaired or were substandard to begin with.


I once took a taxi from the airport into Tripoli, Libya, one of the world’s greatest oil exporters. We hit a pothole that swallowed our small Russian car. Then matter-of-factly we both got out to lift the rear of the tiny car out. I asked the driver how such gargantuan road holes could be possible in a nation blessed with limitless oil reserves. His answer was, “We hire our first cousins.”


Translated? “We are tribal people who abhor meritocracy.” During the 1973 Greek dictatorship, my mom sent a pair of $10 Levi’s to me in Athens. They arrived at “customs” which sent me a note to pick them up. I went to the central Athens postal customs office and was told I could have them for $25!


I complained to my Greek professor at the college there. She said, “Give them $5 along with the name of our college director.” I did, and the next day the customs supervisor apologized but still asked for $10, which I happily handed over.


So too with wokeness.


The old joke that affirmative action was just desserts for the mediocre politicized English or sociology department, but would never be applied to air traffic controllers, pilots, brain surgeons, or nuclear plant operators is no longer jest.


Non-meritocratic hiring now encompasses every profession. And like the Libyan taxi, we will soon see what filters down when our elite is put in positions of enormous clout and power, largely on the basis of ideological, racial, gender, or ethnic considerations.


If you doubt, remember that a non-compos mentis Biden is one more fall away from Kamala Harris, selected entirely based on her race and sex, and who seems to have a vocabulary smaller than her menu of various chuckles.


Her presidency really would prove that anyone at all can be president.


Opportunity for ALL, but favoritism for NONE!


*** Victor Davis Hanson (born September 5, 1953) is an American classicist, military historian, and political commentator. He has been a commentator on modern and ancient warfare and contemporary politics for The New York Times, Wall Street Journal, National Review, The Washington Times and other media outlets. He is a professor emeritus of Classics at California State University, Fresno, the Martin and Illie Anderson Senior Fellow in classics and military history at the Hoover Institution, and visiting professor at Hillsdale College. Hanson was awarded the National Humanities Medal in 2007 by President George W. Bush and was a presidential appointee in 2007–2008 on the American Battle Monuments Commission.

From Seth Goden's column Jun 19, 2022

By every geologic measure, modern human life is a tiny blip, a spark of static on a very long-playing record.

For most of the time that life has existed on Earth, there were no humans. And when there were human-like creatures, they spent much of their time doing not much. Nomads eat when they need to, move around and hang out. It’s not an easy life, but there are none of the modern distractions or problems that urban culture presents.

Grain began to change things, because agriculture produces far more calories per acre, allowing populations to grow… and to store the results of our labor. Stored grain, though, is easier to steal and to tax than something that must be eaten fresh off the tree or harvested.

And so you get markets and wars and governments and the rise of a group of people wealthier than any individual farmer or nomad could be.

This is all mostly irrelevant. It’s irrelevant in the way that understanding how Edison made movies or sound recordings is irrelevant. It’s nice to know the history, but it doesn’t help you win an Oscar or a Grammy.

The two most relevant forces are in a powerful dance right now:

• The carbon-fueled growth of industry.

• The information-fueled growth of ideas and connection.

Industry changed the way the Earth looks from space, it enriched billions of people and it has driven our species to the brink of extinction due to our impact on the climate. It has often been based on caste and coercion, and created both opportunities and problems.

Connection has enabled culture to thrive, and in recent years, amplified by the noise of the internet, it’s also made many people miserable in the short run.

As we slog through another long, challenging year, one in which these two forces conflict, amplify and engage with each other, I’m remembering what Theodore Parker said more than 150 years ago:

I do not pretend to understand the moral universe, the arc is a long one, my eye reaches but little ways. I cannot calculate the curve and complete the figure by the experience of sight; I can divine it by conscience. But from what I see I am sure it bends towards justice.

We really don’t have a lot of choice about yesterday. Here we are, many of us with more leverage and power than any human on Earth had just a hundred years ago.

In the last few decades, so many areas of culture have moved forward that defenders of the status quo are becoming exhausted trying to defend what was. And they sometimes express that exhaustion through anger, division and vitriol.

The good news is that we have exactly what we need to make things better. If enough of us stand up and lead and connect, we’ll continue to get closer to what’s possible.

Here’s to peace of mind and possibility. They go together.