Legal Commentary

Recently, I?ve been thinking quite a bit about Caster Semenya, the 18-year old world-champion runner from South Africa.   In response to concerns that Semenya is too fast and that her voice is too deep and that her build is too masculine, track and field?s governing body has arranged tests to ascertain her sex.  One Italian runner, Elisa Cusma, complained: ?These kind of people should not run with us. For me, she?s not a woman. She?s a man.?  The concern is not that Semenya set out to fool the governing body.  The concern is that Semenya, who grew up as female, may in fact have sufficient male characteristics to be categorized as male.  As someone who writes about gender and race as social constructs and imperfect proxies, my fascination with the Semenya case goes beyond prurient curiosity.  For me, the controversy brings to mind the racial prerequisite cases from the early 1900s that Ian Haney Lopez has written about, such as United States v. Thind and Ozawa v. United States.  It also brings to mind Ariela Gross?s work on litigating whiteness.  Bust mostly, the controversy speaks volumes about the meaning of sex and gender.

            I have no idea what the outcome will be.  A gynecologist, an endocrinologist, a psychologist, an internal medicine specialist, and an expert on gender have all been asked to examine Semenya and weigh in on the issue.  Indeed, I can easily imagine a situation in which some tests will suggest Semenya is female, while other tests will suggest she is male.  Indeed, I can easily imagine a wringing of hands, a determination that Semenya is ?different? and thus ineligible to compete ?as a woman? or ?as a man.?  For me, the real issue is not whether Semenya is male or female, but rather our compulsive need to understand sex and gender in binary terms, even when such binary thinking excludes significant segments on the population.  It is similar to the way we need to know whether someone is black or white, straight or gay, liberal or conservative, guilty or innocent, when the reality is often far more complicated.

A NY Times article speculates that whatever the outcome, 18-year old Semenya?s life will be forever changed.  And all of this makes me ask ?what if??  Since the election of President Obama, there has been talk, however premature, of living in a post-racial world.  Clearly a post-racial world seems something we should aspire to.  But how about a post-gender world?  Should that also be on the agenda?  What might it be like to live in a world in which the first question we ask when someone is pregnant is not ?boy or girl??  What might census data collection or Title VII or Title IX or marriage equality look like in such a world?  What might it be like to live in a world without ?urinary segregation,? to borrow from Lacan?  Would it be possible to live in such a world?  Would we want to?  And can the law get us there?