the natural destination of poor editorial judgment is the court of law
on the Skrmetti case, the LPGA trans ban, & the NYT's reporting
Thank you for being here! From now until the Winter Solstice on December 21, I’ll be offering 20% off annual subscriptions. This is a great time to upgrade if you’ve been considering it!
I have decided to make this newsletter free because I think it is important for as many people to have access to it as possible. However, I am a full-time freelance writer. Paid subscriptions to this newsletter allow me to dedicate more time to this work, as well as to pay an editor to help me with this newsletter.
I have left X completely but you can find me on Bluesky, if that’s your thing.
This week, the Supreme Court of the United States is hearing oral arguments in United States v. Skrmetti, a case that will decide the fate of trans healthcare in this country for the foreseeable future, particularly for trans youth. After the first day of arguments, SCOTUS seems likely to uphold Tennessee's ban on gender-affirming care for minors. As Katelyn Burns writes at MSNBC, “It’s hard not to feel like a doomer on all things trans rights right now, and this case is a microcosm for why.”
This is a sports newsletter and you may wonder why I am bringing up a case about gender-affirming care. But what those of us watching the state of trans rights have been trying to tell everyone from the beginning is that it’s all related. Banning trans athletes from sports was never really about sports—it was about making a group of people a threat in one area of society that seems “reasonable” so that the same group of people can be made a threat in all others.
"Protecting the integrity of women's sports" is a dog whistle that leads to the outright ostracization of trans people. Look at the LPGA’s decision this week to ban trans women from the women’s tour if they transitioned after going through a testosterone-driven puberty. They instituted this policy because of a golfer who didn't even qualify for the LPGA tour or the U.S. Women's Open. With this policy, the LPGA became the only U.S. women’s pro league to ban trans women outright (the Pro Disc Golf Association passed a similar policy that they later rescinded after losing several lawsuits).
Even if we take the LPGA’s policy as fair and legitimate (which it’s not), we quickly see how gender-affirming care bans put trans athletes in an unwinnable position: the LPGA has banned trans women who do not medically transition prior to puberty, but SCOTUS seems likely to uphold a ban on transition-related care for minors.
Do you see the problem? In a country that prevents youth from accessing transition care, no one can medically transition pre-puberty, which means that any leagues requiring trans women to have medically transitioned pre-puberty are effectively banning any athlete who was assigned male at birth.
The media has played a huge role in the position we now find ourselves in when it comes to trans rights. Writers like Jesse Singal and his “just asking questions” approach created the model for these stories, including his horrific cover story for The Atlantic in 2018, but the New York Times has really been leading the charge in recent years. The NYT have come under fire in recent years for the anti-trans bent of their reporting, and have been credited with helping to fuel the anti-trans panic that has spread from a fringe, far right contingent of the Republican Party and has begun to take root even among Democratic politicians.
“My not-unprofessional opinion is this trans youth care ban would not be before the Supreme Court at all if not for Alliance Defending Freedom (aka the people who brought you Dobbs) and would not be treated as a ‘tough’ issue for ‘even liberals’ if not for the New York Times,” journalist Melissa Gira Grant skeeted this week. A letter from journalists and NYT contributors sent to NYT publisher A.G. Sulzberger on April 6, 2023 cited Times reporting that has been used in court cases to pass discriminatory legislation. “The natural destination of poor editorial judgment is the court of law,” the New York Times letter read. Which again brings us back to SCOTUS this week.
Back in September, NYT assistant managing editor Sam Sifton defended the paper’s coverage of trans issues during a panel at The Association of LGBTQ+ Journalists’ National Convention. “I think what we’re doing is trying to embody an ideal of independent journalism … that posits that our job, our mission in seeking the truth and helping people understand the world, is going to prove to be a disappointment to those who find our article to not match their worldview, to not match what they believe,” Sifton said.
Media Matters and GLAAD found that 66% of New York Times articles about anti-trans legislation failed to quote a single trans or gender-nonconforming person, and 18% quoted misinformation from anti-trans activists without fact-checking or context. Just last week, they published a story that argued trans people and their allies should be a little nicer to people like J.K. Rowling, because being mean is very off-putting to their cause.
And now, we come back to sports and the way the Times has contributed to the hostile environment for trans people in this country.
For the majority of its season, the San Jose State University women’s volleyball team has been playing under a spotlight they never anticipated. After all, how much media coverage does women’s collegiate volleyball in the Mountain West division usually receive? But a media circus ensued when an SJSU player suspected someone on the team is trans and then filed a lawsuit to prevent that teammate from playing. One of SJSU’s coaches later joined that lawsuit. A majority of SJSU’s opponents forfeited games in protest of there allegedly being a trans player on the team (the player in question has never publicly commented on her gender identity or her assigned sex at birth).
On the backs of those many forfeits, SJSU found itself in the Mountain West Championship Game this past weekend. Last week, a judge ruled that the allegedly trans player could continue to play. The team’s season quietly ended in a loss to top-seeded Colorado State, who won the championship in four sets—27-25, 25-20, 23-25, 25-16.
“Despite national media attention on the team, the Spartans played in front of the sparsest crowd of the tournament without incident,” wrote Marisa Ingemi1, who has been covering the team all season for the San Francisco Chronicle. “Police officers surrounded the outside of the arena and multiple security people were posted at each spectator entrance. There were no protesters outside before the match or inside. Mountain West officials said there had been no security issues during the day.”
Prior to the Championship Game, feature stories at both ESPN and The New York Times took a deep dive into the controversy that has plagued SJSU all season. The stories are framed wildly differently, showing how much editorial standards can impact reporting. And while I may have framed certain parts of this story differently than Katie Barnes at ESPN did, their story is a great example of what it looks like to fact check claims being made by the anti-trans side of this fight (Barnes is the author of the book Fair Play: How Sports Shape the Gender Debate).
The NYT feature (gift link) was written by Juliet Macur, a veteran sportswriter whose work I am generally a huge fan of. It’s worth noting that the issues I have with the NYT’s story are issues that are consistent across sections at the paper; to me, that indicates that these are editorial choices coming from the top down. Writers and section editors seem to have only so much control.
The first thing I noticed was that Brooke Slusser, the SJSU player involved in lawsuits against her teammate (and former roommate), spoke to the Times. Slusser didn’t talk to the Chronicle or ESPN or the Washington Post. In fact, the NYT is the first non-Fox News/Outkick/Fox affiliate that she’s talked to. In my opinion, that says a lot about the reputation of the Times: transphobic people feel comfortable talking to them.
Most egregiously, the Times’ reporting allows sources to repeatedly misgender the allegedly trans player by calling her a man in the paper of record. I am not suggesting that sources should be censored, but it’s up to the publication to clarify factually incorrect information. When a source says, “Men don’t belong in women’s sports,” it is a journalist’s job to clarify that a transgender woman is not a man, and all players on SJSU’s team are adhering to NCAA policy allowing for participation in women’s sports.
But not only did the Times quote Slusser calling her teammate “a man,” they used it as a photo caption.
Consider the difference between the caption the NYT chose and this one: “Brooke Slusser says she considers it ‘God’s plan’ for her to prevent her teammate—who she believes is a trans woman—from playing women’s collegiate sports.”
Written that way, readers receive Slusser’s point of view, but with important context. It makes a very big difference.
There’s also a subheading in the Times story titled “Fairness and Safety.” This section includes an anti-trans point of view but does not include a single advocate for trans inclusion reframing the idea of fairness and safety.
If you are going to quote Slusser’s lawyer saying, “If you don’t have a fair game, you really don’t have a sport that is meaningful” and that the N.C.A.A. and college administrators “have willfully neglected their duty” to keep sports safe and fair and “have failed women,” it is absolutely incomprehensible to me that you don’t have someone else there to offer the other side.
One of the ways the anti-trans sports push has been so effective has been by framing “fairness” around what is perceived to be fair to cis athletes, rather than by what is fair for the most marginalized athletes in the room: trans women and girls. And by framing “safety” around whether trans women and girls pose a threat to cis girls (they don’t, and cis girls injure other cis girls in competition literally every day), you fail to take into account the safety of the trans athletes, whether it’s their physical safety due to threats of violence, or their health when it comes to the often restrictive hormonal requirements trans women are asked to adhere to. Can the anti-trans side name a single case of a trans woman or girl brutally injuring a cis woman? No, because it doesn’t exist. People like Slusser and her lawyer are engaging in fear mongering, and it goes unchallenged in the NYT’s reporting.
So, too, do the claims made by the SJSU assistant coach, who is also part of the lawsuit against her own player.
The NYT does say, “The player does not lead any statistical category in her conference.” But compare that to the debunking that ESPN does. ESPN writes, “In the lawsuits, she is said to hit the ball so powerfully that her kills travel 80 mph. The lawsuit includes no data to support that claim, but it would make her as powerful as some of the hardest-hitting men's volleyball players in history.” Then, not only does ESPN talk to other NCAA women’s volleyball athletes — who say that there is nothing about this player that stands out and that, in fact, she is nowhere near as powerful as the top-performing athletes in the sport — but they actually analyze video of her play.
They also looked at her listed height of 6’1” and compared it to the average height of other players on her team and in her division, a basic, easily executable analysis that found that she is just one inch taller than the average height of the 120 players listed as hitters across the Mountain West Conference, and 1.5 inches shorter than the average height of the players on the teams that played in the Final Four of the NCAA Tournament last season. Seven out of 25 players on her own team are over six feet tall.
The NYT didn't bother with even the most basic interrogation of the lawsuit's claims. Instead, they engaged in shoddy science reporting. Here is the NYT:
Nowhere does the Times cite any of the science that shows how most advantages cisgender men may have over cisgender women disappears after hormone replacement therapy. Nor does it cite the groundbreaking study showing that trans women are actually at a disadvantage in several key physical areas related to athletic ability. (ESPN does not cite this study, either, though they do cite one that found that after one year of HRT, trans women retain a slight athletic advantage in certain categories. They do not, however, include the study author’s clarifications that a) a two-year wait period after starting HRT may be better than a one-year wait period in terms of elite sporting policy, but that b) this study should not be used to uphold bans in school sports.)
But overwhelmingly, what’s missing from this NYT story is the humanization of the athlete at its center. Even if she doesn’t want to speak to the press, as a journalist you can speak to other trans athletes who have come under similar scrutiny, or to advocates who support these athletes, and try to create compassion for how dehumanizing it is to have your right to participate fully in society questioned. There is a reason the United Nations and Human Rights Watch have called bans on trans athletes human rights violations, and why the Olympic Charter declares that access to sport free from discrimination is an unalienable right. By banning someone from participating in an aspect of society because of their identity, you are denying them their full human rights.
That is why, when a source cites the issue of “fairness” as their reason for trying to have someone banned from a sport, I always change the frame and ask, “Fair to whom?”
Journalists only have so much control over the final outcomes of the stories with our bylines on them. Editors are empowered to make decisions over our heads. As a freelancer, I have a lot more freedom in this regard than staff writers do. If a staff writer wants to pull a story, their job is at-risk in a way that mine isn’t. At the same time, I don’t know if I could sleep at night knowing that my name was on a story that was transphobic or harmful to a marginalized community.
I have walked away from stories with major publications because I didn’t like the direction of the editorial framing. I am always up front with editors about how I report these stories: I use as many trans sources as possible, I will not engage with bad faith arguments unless I can dismantle them, and I do not get into the weeds about testosterone science because I find it dehumanizing. I had an editor hire me because he said he wanted to avoid the common traps that reporting on trans issues fall into, then tried to add an entire section on testosterone science. When I wrote that most trans kids aren’t trying to be the next Olympian, but are instead just trying to play sports with their friends, he asked in the margins, “How do you know that?”
I killed that piece and brought it elsewhere. The byline and paycheck is never as important as people’s dignity. I’d like to see more journalists, particularly at legacy publications, take the same stance.
People’s lives quite literally depend on it.
As
, author of the incredible book Histories of the Transgender Child, wrote recently, “Skrmetti has given [one question] the highest possible stakes: how long is it tolerable to force children to suffer by dismissing their need to transition?”This essay was edited by Louis Bien.
This is a great piece. Sharing widely. Thank you.
Really well done, thank you for making this public!