I revisited your first statement: "So UPenn is creating a situation for the female swimmers that may have the same effects as a mental or physical impairment on them, but is there an actual violation of the ADA here?"
You're not understanding that "same effects" are "same effects"?
Requiring someone to be disabled to participate is no less discriminatory than requiring someone to not participate because they are disabled.
By allowing the biological male to compete in a females sport, that situation, in an of itself creates a physical and mental impairment that substantially limits the biological females major life activities.
I revisited your first statement: "So UPenn is creating a situation for the female swimmers that may have the same effects as a mental or physical impairment on them, but is there an actual violation of the ADA here?"
You're not understanding that "same effects" are "same effects"?
Requiring someone to be disabled to participate is no less discriminatory than requiring someone to not participate because they are disabled.
By allowing the biological male to compete in a females sport, that situation, in an of itself creates a physical and mental impairment that substantially limits the biological females major life activities.
I can't argue against "I don't see how".