But let’s put Gina in a different context, a competitive women’s swim meet. Is Gina or another trans woman similarly situated to female competitors? No, the female swimmers did not go through male puberty. They do not have male bone structure. In fact, under traditional equal protection categories, treating a competitive women’s swim meet as both a male and female space could violate the principle of treating similarly situated people alike and result in exploiting or harming the vulnerable class.
It’s true that certain interventions, such as suppressing testosterone, can ameliorate the differences between trans women and women—Lia Thomas is not the fastest swimmer ever to compete in women’s freestyle, and even finished fifth in the 200 meter freestyle—but they cannot eliminate it entirely. In the aggregate, differences will remain, and they can be profound. Performing in women’s meets substantially improved Thomas’s overall results.
Moreover, athletics are not the only location where trans women and women are not “similarly situated.” Consider locker rooms, for example. If a man walked in and revealed his genitalia, that would be indecent exposure. If a trans woman exposes a penis, is that somehow different? Is a woman bigoted if she doesn’t want to see biologically male genitalia, even if that genitalia belongs to a trans woman?