Testing Grounds

In 1908, a young Russian Polish woman named Helena Bartnikowska was queuing at an immigration station in Philadelphia when American officials decided there was something off about her: her voice was a little deep, she had dustings of facial hair. Officials took Bartnikowska to a back room, where a doctor forcibly stripped and inspected her body for signs of disability, disease, and sexual difference. It was that final category—sexual difference—that sealed her fate. Referring to Bartnikowska as “this supposed woman,” the doctor concluded that she was “suffering from Hermaphroditism.” This made her, peculiarly, an economic risk. Immigration officials predicted she would struggle to find a husband or a job and would become dependent on the federal government for support. Bartnikowska was labeled a likely “public charge” and deported.

Bartnikowska was no stranger to the United States, as the historian Douglas C. Baynton recounts in his book Defectives in the Land: Disability and Immigration in the Age of Eugenics. She had lived in Cleveland for nearly a decade as a kid and was returning to stay with her aunt and uncle. Upon hearing of her deportation, they lodged a letter of protest with the Philadelphia commissioner, wondering why Bartnikowska’s ability to live in America would hinge on the look of her nude body. “The complaint made does not cover a loathsome or contagious disease,” Bartnikowska’s uncle and aunt wrote. Even if the family were to take at face value the hazy logic that being intersex corresponded with financial risk, the facts didn’t add up: Bartnikowska’s aunt and uncle, who owned a saloon, had already promised to cover all of her expenses.

The two would have struggled to find a less sympathetic audience. An 1891 policy, which instructed border agents to weed out anyone “likely to become a public charge,” folded suspicion of intersex and trans people into the broader eugenic logic of the American immigration system. Officials were trained to seek out anyone who looked a little, well, queer. The 1918 Manual of the Mental Examination of Aliens, for instance, instructed doctors to watch out for immigrants with bodies where “the characteristics of one sex may approach those of the other.” These vague guidelines were easily filtered through racial animus. Asian and Latino men were far more likely to be strip-searched than their white counterparts, as the historian Margot Canaday has documented; at Ellis Island, where many migrants were arriving from Europe, inspections tended to be more cursory than those at Angel Island in California or at the Mexican border.

Bartnikowska became one of scores of immigrants, who, after weeks- or months-long journeys to America, found themselves forcibly stripped, inspected, and ejected because they did not meet the American idea of how male and female bodies should look. The systematic screening and deportation of intersex immigrants was justified through the cold financializing logic of the “public charge” statute, where deep-seated fears about the sex and sexuality of new immigrants—and what that would mean for the gendered American labor system—were converted into pure economic questions. It was much easier to speak of tax dollars and government support than to admit just how fragile the system of binary sex that structured American society was. 

These invasive border inspections on American soil didn’t survive the twentieth century, but they did take on new forms. By World War II, the economic logic for deporting queer people was increasingly augmented by another justification for expulsions: a medical framework that viewed queerness as a kind of social contaminant. Immigration officials began to fear the “constitutional psychopathic inferiority,” a catch-all designation for “eccentric” and “abnormal behavior” that included “persons with abnormal sexual instincts.” A whisper of homosexuality could prompt extensive investigations. When Alfons Zinkower arrived in America in 1947, immigration officials, tipped off to his possible homosexuality, interviewed friends and acquaintances about how he spent his free time and whether or not he socialized with homosexuals. This kind of scrutiny wasn’t fully retired until 1990, when Congress formally removed queerness, then coded as having “a psychopathic personality,” as grounds for deportation.

Now, it’s back. The Trump administration is resurrecting these old immigration policies through the narrow and misleading frame of sports and deploying them disproportionately against trans women. At the end of February, Secretary of State Marco Rubio issued a memo to border officials that urged them to bar entry to any trans woman athlete, adding that such denials were all in service of “safe and fair sports,” a ludicrous suggestion that masks the administration’s more nefarious intentions. The memo, as Truthout recently noted, applies to potentially any trans person, not just a trans woman athlete. Rubio’s office ordered, for instance, that “all visas must reflect an applicant’s sex at birth” and that anyone “misrepresenting their purpose of travel or sex” could be denied entry to the United States.

Politicians have always used elaborate cover stories to justify the queasy practice of deporting people because of their bodies. This time, old claims about gender nonconforming people becoming public charges have just given way to a more potent sleight of hand.

The history of sex screening in America is deeply tied to carceral systems. Immigration and prison officials were the first to embrace widespread screenings, largely because they viewed the populations they governed with suspicion and fear. A person coded as criminal couldn’t be trusted to self-select their own gender. These officials also disproportionately governed people of color, whose bodies were treated as simultaneously more suspicious and more expendable. What was the harm in stripping them down for an inspection?

That doesn’t mean sex screenings were easy to implement. Human bodies exist on a wide spectrum; it is much harder than it looks to transpose a binary onto them. Prison officials, for instance, could never make up their mind about who should count as a woman and who should count as a man. During sentencing procedures, judges were sometimes tasked with deciding whether to send an intersex or trans person to men’s or women’s prison. It was not uncommon to order a strip search and ask a doctor to make the conclusion. When Addie G. Morton, a young Filipino person dubbed a “true hermaphrodite,” was sentenced to prison in 1953, reporters noted with confusion that Morton dressed in men’s clothes at the trial but that, as one newspaper put it, “some police file photographs show him in women’s dress.” The judge was similarly perplexed. He ordered a medical report on Morton and eventually sent Morton to a men’s prison.

This ad hoc system continued even after a person was behind bars. In 1950, officials “rushed” an inmate named Josephine Montgomery—who presented as a woman and had been incarcerated in the women’s wing of a jail for two months—to a men’s prison after a physical exam. In another instance, the friend of an inmate named Jean Williams, who was arrested in male attire (seemingly because she was a drag king), successfully lobbied a Pennsylvania jail to transfer her from the male to female wing. The business of sex and gender was messy stuff. It is no wonder why, after a trans man named Bert Martin was arrested in 1902 for stealing a horse and doctors discovered that his body didn’t fit their understanding of a man’s, Nebraska’s governor simply commuted his sentence, asserting that Martin was “unfit for association with men or women”—a hateful statement, to be sure, but one that also cleverly sidestepped the true complexities of gender and sex.

The carceral logic of prison and immigration inspections soon found a home in the global sports apparatus. In the summer of 1936, Wilhelm Knoll, an influential sports doctor and a Nazi who wanted to purge “unsuitable elements” from sports, began lobbying for sex screenings. This time, he channeled his panic solely onto gender nonconforming women: “Hermaphrodites,” Knoll wrote in a letter that he sent to all of the top leagues, must be “eliminated at all costs” from women’s sports. Only the federation that governs track-and-field sports—now called World Athletics—heeded his call. That August, soon after Hitler kicked off the Berlin Olympics, World Athletics began allowing for strip tests of any female track-and-field athlete about whom there were “questions of a physical nature.”

Sex screenings kept up the illusion that sex was knowable and measurable, that people could be easily cleaved into male and female categories. They also implicitly affirmed the gendered division of labor at the center of the modern economy. That didn’t mean the screenings methods themselves were always viewed favorably. In the 1960s, World Athletics phased out its strip searches in favor of chromosome-based screenings, a supposedly less invasive system that had no way to account for the fact that many women, including many cis women, do not have XX chromosomes. In 1967, when a Polish sprinter was banned from the Olympics for having more than two chromosomes, the head of the Polish Olympic Committee wrote to the International Olympic Committee, noting that sex screenings amounted to “a form of discrimination” and did not account for the complexities of the human body. “There are no generally accepted criteria of sex for woman athletes,” he wrote, and the “arbitrariness” of chromosome tests was damaging. What he didn’t say was that the Olympics itself had adopted the logic of prison and immigration authorities, viewing its own women athletes as a group that needed constant surveillance.

It would take World Athletics another three decades to drop mandatory chromosome tests at the Olympics. Now, likely emboldened by the Trump administration, the federation is reversing course. This spring, World Athletics began requiring all women to sit for a “pre-clearance” cheek swab test before the Olympics, a transparent effort to expel trans and intersex women from the federation (or, as World Athletics president Sebastian Coe euphemistically put it, to “doggedly protect the female category”). This rule marks a dramatic revival of the sex screening apparatus. It also does not even pretend to accomplish the right wing’s stated task of separating trans women from cis women. These tests focus on the SRY gene, a protein that is generally found on the Y chromosome, which is often, but not always, associated with a male sex assignment at birth. Many cis women have the SRY gene and don’t know until they’re tested.

The United States has become a key laboratory for this new testing regime, with trans women as the clear target and source of hallucinatory fear. In February, Trump issued an executive order attempting to keep all trans girls and women from competing in sports, a policy that would impact children as young as kindergarten. Soon after, Texas sued to compel the NCAA to impose sex screenings on all women athletes, recommending World Athletics’ favored SRY chromosome test. If successful, that would mean subjecting as many as a quarter-million college-aged women to cheek swab tests. Inevitably, many cis, trans, and/or intersex women would be unceremoniously expelled from sports. (Other efforts to impose sex screenings have been equally dramatic: the original draft of Ohio’s ban on trans women and girl athletes, for instance, called for genital inspections of women and girls.)

It isn’t hard to see sports as merely the testing ground for pushing sex exams into new corners of public life. In recent months, the Bureau of Prisons has attempted to forcibly transfer trans women to men’s prisons, a policy which is currently held up in court. Meanwhile, the State Department has stopped issuing “X” passports to non-binary Americans and has started listing sex assigned at birth, even when that gender marker was legally changed, on others. And while there are no sex screenings at the U.S. border, Rubio’s February memo leaves open the door to more scrutiny of trans women. “If other evidence casts reasonable doubt on the applicant’s sex,” it notes, officials can “request additional evidence to demonstrate sex at birth.”

All of this is a mirage to frighten and marginalize trans women and, in the process, break the collectivist systems that support them. As the writer Kay Gabriel writes in n+1, anti-trans crusaders and market fundamentalists are allying to dismantle labor power, including those of teachers unions. This is both because organized teachers can provide an essential early support for queer kids and because the right wants an enemy to distract from its years of squeezing public school budgets. In Florida, legislators have used the so-called “Don’t Say Gay” bill to wrest control of classroom content from teachers and give it to school districts, which are also now legally liable for any violations. Unionized teachers can no longer craft their own curriculum.

The new raft of sports policies is extending this effort further. Not only are educators muzzled from supporting their trans students, but, in the context of sports, they might also be liable for refusing to out them. In New York, a conservative Long Island legislator has already signaled that educators and coaches should be liable for keeping trans girls from playing sports. “I would hope that the coach has enough sense to say, ‘Look, we’re not playing the rest of this game,’” the legislator said, adding that this would mean the “police don’t have to be called.” 

Perhaps the right has chosen sports as its preferred masquerade for anti-trans immigration and health care policies because many Americans cling to the fantasy that sports themselves are a last bastion of meritocracy—that the basic systems of class inequality that structure everything else don’t interfere with the “most deserving” athlete ultimately triumphing. Even Americans who increasingly admit the economy is rigged to benefit the rich still view sports as somehow insulated from these unequal systems. Here, everyone starts on the same footing. That fantasy has its own built-in foe: the small handful of trans and intersex women and girls who compete (and emphasis on small: the National Collegiate Athletic Association estimated there are less than ten trans athletes of all genders currently playing at the college level). It is certainly a comforting argument for swaths of the American public disillusioned by decades of wealth inequality, wage stagnation, and declining labor power. The American Dream might be dead, but here is one place where we can pantomime its resilience: on the field. None of this talk of fair competition should be taken at face value, however. States are actively using these sports policies to justify the hollowing out of trans health care access and to further marginalize trans kids, who, like anyone, are probably joining sports above all to make friends, from any sense of wider community.

Sex screenings are back in vogue on the right because they provide an easy mechanism of social control while also selling partisans on an appealing vision: put everyone’s bodies under the microscope, and meritocracy can return.