Posts Tagged ‘Caster Semenya’

Prowel v. Wise Business Forms, Gender Stereotyping, and Caster Semenya

September 10th, 2009 1 comment

This just in: the South African track star,  Caster Semenya, turns out to be of ambiguous gender. Testing reveals that the athlete, who competed in the recent World Championships and easily won the 800-metre run, has internal testes that produce a large amount of testosterone. There are currently no plans to strip Caster of the gold  medal, but there’s talk about awarding a second  gold medal to the runner-up, presumably on the basis that the winner enjoyed an unfair advantage over the other competitors, though not intentionally. (I’m assuming that Caster’s visible sex organs are female; in any event, she and her family raised her as female and have always considered her so.)

As I wrote previously, this may be one of the cases where we do need to make a determination about gender, because sports competitions are generally divided by sex because of the physical advantages that men possess in most (not all) sports. So going forward, my guess is that Caster Semenya will be required to compete as a male.

But whom should she be allowed to marry? Should the gender chosen, as a matter of necessity, for the limited purpose of athletic competition extend into every aspect of her life? Since her gender is decidedly ambiguous, should she be able to marry the person of her choice, male or female?

In South Africa, the question won’t arise, because that country’s constitutional commitment to equality, which expressly extends to matters of sexual orientation, has been interpreted to embrace the right of gays and lesbians — and, I assume, folks like Caster Semenya — to marry the person of their choice.

Here in the U.S., of course, we’re much more committted to sniffing out gender unambiguously. I’d guess that where that can’t comfortably be done, those who recite the mantra that “children need a mother and a father” would prefer that Caster Semenya not be permitted to marry anyone. Too weird.

As a recent decision by the federal appellate court for the Third Circuit reveals, though, this boxing and commitment to gender has all sorts of strange consequences. In a case arising in Western Pennsylvania, Prowel v. Wise Business Forms, the appellate judges had to sift through a gay man’s allegations of workplace harassment to determine whether the mistreatment he complained of was because of his sex or because of his sexual orientation. Why bother? And what’s the difference, you (non-lawyers) may be asking?

Well, federal law protects against sex-based discrimination but not against discrimination based on sexual orientation. The seminal(?) case involved a woman who alleged discrimination because of her non-conformance to the gender role she was expected to fill. (She “wasn’t charming,” for example.) That kind of gender stereotyping, the Supreme Court ruled in Price Waterhouse, was sex-based discrimination and therefore prohibited by Title VII, the federal law that applies to such actions. So if Prowel can show that he was harassed because he wasn’t “typically” male, he’s got a claim —  even though he also “happens” to be gay.

Both his behavior and that of the “real men” who harassed him are the stuff of easy parody. While he “filed” his nails, the other guys “ripped them off with utility knives.” What? Really? Utility knives? Oh, and he pushed the buttons on his work gizmo “with pizzazz”! What kind of real man does that?

So now the lower court must let the jury decide whether Prowel was harassed because of his failure to  conform to gender stereotypes. If so, the court seems to say, then any mistreatment because of his sexual orientation is beside the point — he’s got a claim. But if the mistreatment were because of sexual orientation only, no claim is stated. There’s still no federal law prohibiting discrimination on that basis.

This is just silly. If Prowel’s allegations are true, he was harassed because gay men, especially but not only effeminate gay men, make some straight men uncomfortable to the point where they feel a need to…rip their nails off with utility knives. Sexual orientation is itself a failure to conform to gender stereotypes, but somehow that most basic point isn’t legally cognizable. The law only protects against sex-based discrimination, so claimants and juries are tasked with separating out two things that…are really one.

Before long, these legal niceties and the more general obsession with gender will come to be seen as historical curiosities — except perhaps in those few cases, like sports, where what’s being measured is something quite specific. We like sports because results are clean and clear, and because there’s an unambiguous finality to the outcomes. But the rest of life isn’t like that, however much some wish it otherwise.

Caster Semenya, Gender Ambiguity, and…Marriage Equality?

August 22nd, 2009 No comments

Surely by now you’ve read of Caster Semenya, the new South African running sensation who clobbered the field in the 800-meter run at the recent World Track and Field Championships on Thursday. Before the gold medal been draped around the 18-year old’s neck, controversy erupted about the winner’s gender. Why? Take a look:

Is the green-and-yellow clad winner male, or female? Semenya’s appearance is unsettling to many. Dividing the world, and the people we encounter, into two distinct genders, is one of the few certainties we allow ourselves. But in a small number of cases, that certainty isn’t available. International athletic governing organizations have had to deal with this reality for some time; the attempt to use chromosomal evidence to separate the genders had to be discarded when the results failed to account for those whose genetic make-up was more complex than the binary division could account for.

Now, the International Association of Athletics Federations, which governs track and field gender, determines gender through a much more complex analysis of various factors. According to this report in the Times, the inquiry will take weeks to complete and “requires a physical medical evaluation, and includes reports from a gynecologist, an endocrinologist, a psychologist, an internal medicine specialist and an expert on gender.” As this list suggests, whatever conclusion the body reaches based on this pile of evidence won’t be unimpeachable. Assuming the evidence suggests that Caster Semenya has both male and female characteristics, the IAAF will simply have to decide that the athlete falls on one side of the line, or the other.

Not surprisingly, Caster’s family has always seen and defined her as female; parents start with the most obvious physical evidence, and then build their gender assumptions around that, even where contrary (and for them,  less compelling) indications, begins to accumulate. In a deeper sense, the gender is less important to them than the fact that this person is their child, with unique needs, interests, and…identity. So while the IAAF must try to reduce a complex,  inherently indeterminate question to an algorithm — there has to be a gender line for athletic competitions, at least for many sports — for most purposes that line-drawing just isn’t necessary, as much as we find comfort in it. Caster Semenya is Caster Semenya.

What if Caster wanted to marry? According to the anti-marriage-equality squad, we’d first have to undertake at least some kind of inquiry into her gender, in order to determine which 50% of the population she’d be allowed to marry. On the rare occasions that the issue of gender identity has surfaced in courts, they’ve flailed. The question usually surfaces after a transsexual person (or that person’s spouse) has died, and some third-party comes in to challenge that the couple’s marriage was ever valid. The third-party’s interest may be in gobbling up the assets of the estate, or in avoiding liability in a wrongful death suit. Given the legal requirement that the spouses be of opposite sexes, the courts have struggled to come up with some metric for drawing the gender line. Some have sought certainty in the comfort of genetics; while others have looked, with equal simplicity, at the “new anatomy” and the ability to have sexual relations in a “binary gender” kinda way.

I don’t know why courts don’t simply say: This couple was married in a ceremony that the state allowed, lived their lives as a couple, and we’re not going to let some third party come in and negate that reality after one of them has died.

Oh, wait…maybe I do know. Gender non-conformists of all types make most of us uncomfortable. In one case from Kansas, the discomfort was so pronounced that the court went so far as to suggest that transsexuals couldn’t marry anyone. Caster Semenya is a gender non-conformist, too, even if her reality is worlds away from that of those with gender dysphoria. Will the governing body’s determination of her gender also determine whom she can marry? Are we that confident about the line that must be drawn for sports to apply it to every other reality, including the deeply personal issues of love, commitment and identity that form the basis of our decisions about whom to marry?

If Caster Semenya stays in her home country of South Africa, she needn’t worry. In that enlightened nation, she can marry the person of her choice — male or female. And so can everyone else, even those whose gender is quite clear.

Here’s a case where the outliers have something to tell us about our own, unquestioning commitment to the assumptions about gender that underlie so many of our laws and policies, including the ban on same-sex marriages. Procreation and “the ideal environment to raise children” — these increasingly discredited arguments for opposing marriage equality reflect a commitment to more than gender division. They are based on an idea that men and women are, and behave, in certain stereotypical ways, and that those rigid models are best for children. But if gender itself isn’t always clear, then what can we say about models that derive from it?