Category Archives: law

Review: Sporting Gender

One of the most contentious issues in sport is that of transgender and intersex athletes. It is an extraordinarily complex and fraught mix that often seems like it pits two important values against each other: opportunity and fairness. Sport should be open to all those who wish to complete and to compete at the highest levels they can. Sport, at its best, also seeks to create fair and meaningful competitions. So, on one hand, sport should be open to all athletes able to complete: it would be wrong to limit the opportunities of transgender and intersex athletes. But, on the other hand, there is a concern that if those opportunities aren’t limited in some way, specifically that if trans and intersex women compete without limitations against cisgender women, it could undermine the fairness of such competitions.

I don’t think there is a straightforward or obvious answer on these issues: and there are good, reasonable arguments (and many bad arguments too) for many different positions on all the various aspects of these issues. That said, my default position is towards the liberty of athletes to compete in the sport of their choice. [My interview with Tracey Holmes on these issues] I don’t mean to say that is the answer: but only that it is my starting point. It is the presumptive position that I think any argument to limit this liberty and opportunity needs to overcome.

Joanna Harper’s Sporting Gender is a good starting point for looking at many of the issues and arguments that might defeat or sustain this presumption. Harper’s book, as the subtitle indicates, takes you through the history, science, and stories of transgender and intersex athletes.

Starting in the early part of the twentieth century, she presents many stories of the individual trans and intersex women and their struggles to compete in sport. Many of these stories are tragic; too often rooted in ignorance and prejudice. For those that think these issues start and end with Castor Semenya, this history is essential.

Harper also discusses the science of sex and its impact on exercise and athletics. She details the many different ways that one might not fit neatly into either of the more familiar categories of male and female. Biological sex is nowhere near as simple as one might assume. (Not to even get into issues of gender.) There is some technical stuff to wade through, but the general gist should be digestible by those without much science background. This is summary, though; there are better places to look for more detailed discussions of the science (much of which can be found in the book’s endnotes).

Another important element of the book is Harper’s discussion of some of the legal cases that punctuate the history of trans and intersex athletes. The details and decisions of these cases are historically important and they had direct influence on the current regulations and guidelines of the major sport organizations like the IOC and IAAF.

Much of the latter half of the book focuses on two recent important Court of Arbitration cases involving intersex athletes (Chand and Semenya). Harper was involved in both cases as an expert witness. While I appreciated the inside look into these cases, this is where the book was at its weakest. I wasn’t all that interested in Harper’s evaluation of the various lawyers involved and whether their closing remarks were powerful or not. There was a lot of that sort of thing in these sections and that took away from the more important issue of rehearsing the arguments presented.

Harper is a trans woman and a runner, and she uses her own experiences to help frame parts of the book. This is both a blessing and a curse. It helps to contextualize and humanize much of the more abstract history and science. But it also means that the book is part memoir and so there are various tangents about her own life that were not part of my reasons for reading this book.

Harper’s ultimately position is that elite competitive sports needs to find the right balance of rules and methods to maximize “the possibility that all women can enjoy equitable and meaningful sport” (247). Furthermore, that there are good reasons to keep separating athletes in to male and female divisions and that the use of testosterone levels is the best current method to make this distinction (247). Though she does provide reasons for why this is her position, the book is not really set up to be a clear and cogent argument to support these claims. Its focus is more on presenting the history (both personal and legal) and the science. And on that front, I’d recommend it for those interested in this issue.

I don’t think the book deals enough with the philosophical and ethical aspects of trans and intersex athletes. What makes for fair and meaningful competition? Why are male/female divisions important? If there is a performance advantages by being trans or intersex, why should that matter and how is it different from other kinds of (non-doping) performance advantages? Harper broaches these questions to a degree, but she is not a philosopher and so the discussion is, in my view, too superficial and limited. There is also almost no engagement with the sport philosophy literature that discusses these issues. I still would recommend the book for the history and science angle, but it is not going to answer the meatier questions of philosophy or ethics.

1 Comment

Filed under athletes, Books, law, Reviews, Women's Sports

I’ll Take That Bet: Gambling and Sport

I am not a gambler: I rarely, if ever, make a ‘friendly’ bet on a game. And it’s been over a decade since I was in Las Vegas and made any kind of legal bet. I don’t even make out NCAA brackets.

This is not for any moral reasons against gambling, I just don’t like to lose money. Indeed, gambling in itself seems morally unproblematic. The moral arguments, such as they are, against gambling are rather weak and tendentious. It is true that many religions have prohibitions against gambling, and so the religiously observant might regard the failure to obey such prohibitions as a vice. But that puts gambling, in my mind, in a similar position to bacon (mmmmm bacon). Observant Jews and Muslims might regard the eating of bacon as a violation of their religious commandments and that violation an immorality of sorts, but bacon itself seems beside the point. It is the keeping of the religious commandment that is important (and the failure that is regarded as sinful). Those who do not keep kosher or halal are not immoral for eating bacon.

Like many otherwise innocuous activities, there can be harmful consequences to overindulgence or dependency (again, bacon is a good analogy here). Behaving irresponsibly or impulsively seems to be the cause of the problem in such cases, not gambling as such. I don’t want to trivialize the negative consequences for those with gambling problems. The response, though, should not be moralizing, but psychological. We ought not to turn those people into “sinners” or criminals, but work to help them solve their problems.

Much like arguments for the prohibition of other ‘vices’ like drinking or sex, the arguments against gambling are most often based on a supposed link between gambling and the debasement of one’s moral character. Somehow gambling itself turns us into bad individuals, encouraging the uglier parts of ourselves. I am skeptical of such a causal link in part because it ignores any difference between use and abuse. That is, sex, drugs, gambling can all be abused and engaged in with harmful and deleterious effects. But they can also be used in unproblematic and beneficial ways. Given how long these sort of ‘vices’ have been a part of human civilization and how many people casually partake in them, it’s hard to believe the “abuse” should be the dominant paradigm here.

Gambling and Sports

The issue of gambling and sport is more complicated. Whatever the status of the moral arguments about individual gambling, there are real worries about the integrity of sport. There is great concern that gambling interests would interfere with and corrupt games. Fears of match-fixing, shaving points, and broken knee-caps abound. These are legitimate and well-founded concerns. There is a history of such activities in the US and around the world. No fan of sport wants that.

Aside from important legal and jurisprudencial issues resulting from the recent US Supreme Court decision in Murphy v NCAA, there will be a radical change to the relationship of the professional leagues and gambling. As more states will likely follow New Jersey and legalize sports gambling, the leagues will find ways to profit from gambling. The most obvious and likely immediate source of revenue will be advertising and co-branding, but there is no doubt that they are working on other creative ways to tap into the gambling dollars.

As the US moves forward with what will likely be a huge increase in legal betting, it is important to maintain the integrity of the leagues and games (and kneecaps).

There are a few main reasons why I think legalization will not undermine the integrity of sport.

First, the leagues do not want to be seen as turning into the WWE. Any whiff of fixing or seeming appearance of interference will be met by the leagues harshly. The have strong incentives to keep such interference out.

Second, legalized gambling is run by casino and gaming companies, not mafioso and gangsters. Steve Wynn is not Michael Corleone. There is little reason to watch or gamble on a sporting event that is fixed, so these businesses have a strong incentives to keep at arm’s length from the games themselves. The cynic might say: at least appear like they are arm’s length. But the easiest way to appear as though one is not interfering is not to interfere. And in most cases, the house wins regardless of the outcome of the game so there is little point in trying to interfere. In other words, the payout for such interference is not worth the risk.

(an aside: there will be individual actors for whom the payout is worth the risk. Such individuals already exist and take that risk today. If anything legalization will further marginalize these individual actors as they get pushed aside by legitimate organizations.)

Lastly, legalization reduces hypocrisy. Captain Renault is not the only one shocked to find gambling going on. Illegal gambling of all kinds is widespread and persistent. Anyone who wants to gamble can easily, I assume, find a bookie and place a bet. Betting odds for games are widely reported on all major media outlets. The hypocrisy of the current system does far more to undermine morality and respect for law than threats posed by legal gambling.

While I think gambling should be legal, I also think that strict fraud regulations should be enforced. Anyone in the leagues involved in any match-fixing or other gambling interference should be held liable and prosecuted for fraud. Since these individuals hold a kind of trust from the fans, sponsors, and others that they aren’t going to fix games or the like, then violating that trust is the violation of a kind of fiduciary duty. The violation of this duty might then lead to the violator being civilly or even, in egregious cases, criminal liable. This is one way to help keep such interference limited.

Be it drugs, gambling, prostitution, or alcohol, prohibition doesn’t stop the behavior it is prohibiting. It merely pushes it into the shadowy darkness of a criminal underworld. Most of the harmful consequences of these activities are caused by the illegal status, not the activity itself. In general, then, sunlight is the best antiseptic for corruption. Transparency of law keeps things above board and away from the criminal organizations. Of course, legalization is not a panacea. There will be problems. But legal sports betting is better than illegal sports betting. The problems can more easily be identified and dealt with—and without breaking kneecaps.

 

Leave a comment

Filed under corruption, gambling, law

Re-Pinning: NFL, Domestic Violence, and the Law

I appeared on MPR this morning to talk about domestic violence and sports. For those listeners and others, I though they might be interested in this post from September 2014: NFL, Domestic Violence, and the Law.

I’ll link to the podcast archive of the show when it is available.

Leave a comment

Filed under law, NFL, violence

The Sports Ethics Show: Sport Studies Symposium 2015

The 4th annual Sport Studies Symposium was held April 24, 2015. In this episode, the symposium participants discuss the ideas raised by the papers given at the symposium. In the first part of the episode, Mike Perry and Shawn E. Klein talk with Matt Adamson, Stephen Mosher, and Synthia Syndor about the nature of sport studies,its past, and its future. In the second part, Shawn and Mike talk with Aaron Harper, Stephanie Quinn, and Zach Smith about legal realism and sport, sport in the ancient world, and theology of sport.

Show Links:

Listen to this episode.

Subscribe to the podcast in iTunes: iTunes Subscribe

Subscribe_on_iTunes_Badge_US-UK_110x40_0824

Leave a comment

Filed under ancient, Conferences, law, play, podcast, rockford university, Sports Studies, theology