Law & the Courts

Teen Girls vs. ‘Trans’ Athletes

High-school athlete Selina Soule, a plaintiff in Allliance Defending Freedom’s lawsuit (Photo courtesy Alliance Defending Freedom)
The restoration of sanity depends on straight talk.

In the latest installment of our dystopian black comedy, Biological Sex v. Gender Identity, using the scientifically accurate term “males” to refer to boys who “identify” as girls is enough to land you in contempt of court.

District Judge Robert Chatigny, during an April 16 conference call, chastised the attorneys who are contesting Connecticut’s transgender sports policy on behalf of three female high-school athletes. During the call, as reported first by National Review’s Jack Crowe, who obtained a transcript, Chatigny said that using the term “male” to refer to — well, male athletes — was “very provocative,” tantamount to “bullying.” Thereafter, in his court, it would be unacceptable, he warned.

Never mind that the two transgender athletes in question were born male and lived unambiguously as such until several years ago, when, in their late teens, they began socially “identifying” as females and competing with girls. Enabled by their state’s athletic conference, the pair have, between them, claimed 15 women’s state-championship titles and deprived countless more girls of the opportunity to participate in races and compete for scholarships.

How can you parse such blatant injustice? How can you view perpetrators as the victims? The only way to do this is to believe, as the ACLU attorneys claim to believe, that the boys — declaring themselves to be female — are female. In this instance, the person they are required to convince is not the average American, but the presiding judge. Luckily for them, he has already decided in their favor.

During the call, Chatigny told Roger Brooks of Alliance Defending Freedom, the girls’ lead attorney:

This isn’t a case involving males who have decided that they want to run in the girls’ events. This is a case about girls who say that transgender girls should not be allowed to run in the girls’ events. So going forward, we will not refer to the proposed intervenors as “males”; understood?

The problem is obvious. How is Brooks supposed to advance an argument based on the sex differences between the female plaintiffs and the athletes at issue if he is prohibited from referring to those sex differences? Even while explaining his argument in his initial response, Brooks proved that upholding Chatigny’s order would be impossible if he were to seriously represent his clients’ interests. Brooks said:

Gender identity is not the point of this case. The point of this case is physiology of bodies driven by chromosomes and the documented athletic advantage that comes from a male body, male hormones, and male puberty in particular.

Surely it should be up to the defendant, not the judge, to argue against Brooks. Only last week, the Supreme Court reasserted the importance of impartiality in the courts in United States v. Sineneng-Smith, writing, “We rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”

In saying “This isn’t a case involving males,” then, Chatigny has skipped past the pleadings, evidence, arguments, and trial and arrived at his preconceived verdict. That’s why Brooks and his team have filed a motion that the judge recuse himself.

This case is about more than one loose-cannon judge, even if he does have a history of dubious sympathies. (“In 12 child-pornography cases, Judge Chatigny imposed a sentence either at or more lenient than the recommended minimum,” the Washington Times reported when the judge was nominated by Obama to the federal appeals court in 2010.)

In the April 16th conference call, Chatigny insisted that the term “transgender females” was “consistent with science, common practice, and perhaps human decency.” But, in fact, only the girls’ legal team had submitted scientific testimony to the court. What scientific evidence or consensus is he referring to?

The fact is that, “on the basis of sex” (the words of Title IX, around which the case revolves), there is no plausible, material basis for describing as “female” any individuals who have wholly and unambiguously male bodies, from their chromosomes to their reproductive organs. Arguments premised on “gender identity” are altogether different: They are metaphysical, not material. In “gender identity” theory, instead of a person being a body (as with the argument of biological sex) a person’s true self is located in a body, the nature of which they are free to declare. Because subscribers to “gender identity” theory believe that language is reality, describing a person (however accurately) as belonging to the sex opposite to the sex with which they identify is, they claim, a literal threat to the individual’s existence. But taken apart, this prohibition on “misgendering” (a word coined only in the last decade) is merely a new form of blasphemy. What it really comes down to is I find that offensive! Well, so what? As I’ve written before, for the British news site UnHerd:

[Imagine] if an atheist wanted to have a debate with a Christian about the existence of God. But that, as a condition of the debate, the Christian demanded that the atheist not blaspheme, as well as refer to him throughout as a “child of God”. Further, imagine if those facilitating the debate expected the atheist to acquiesce to this demand or else be considered malicious or ignorant. This is precisely what is happening with the transgender debate every time a non-believer feels obligated to use words such as “transgender”, “gender identity”, or pronouns that do not match the sex of his or her opponent.

In a free society, I suspect that our response to the believer in the above scenario would be to give him short shrift. But in a theocracy, the believer’s word is final. Perniciously, in the guise of “courtesy,” this thinking in relation to gender identity has become the prevailing wisdom.

Even New York Magazine’s Andrew Sullivan, who has written cogently and convincingly on this subject in the past, tweeted in support of Chatigny:

Far from “calling” them names (the correct adjective is “describing”), and far from being a “slur” (the correct noun is “fact”), the term “males” in reference to the individuals in question is both legally precise and scientifically accurate. As for being “callous” and “hurtful,” the only people suggesting that it’s an insult to be male are gender activists themselves.

The Department of Justice put it well last month when it issued its statement on the Connecticut case. “In our pluralistic society we generally try to accommodate how individuals desire to live their lives up to the point where those desires impinge on the other people’s rights,” said Attorney General William Barr  “Allowing biological males to compete in all-female sports deprives women of the opportunity to participate fully and fairly in sports and is fundamentally unfair to female athletes.” Yes, of course, there are all sorts of social situations in which we avoid the plain truth to protect other peoples’ feelings (“No, I can’t tell that you’ve put on weight,” “This fruitcake is delicious”). And in interpersonal and social contexts many people, myself included, don’t mind calling people of good faith what they wish to be called. But in a court of law — as in a public debate — forbidding precise terminology is a tragically naïve concession to make. In making it, one sacrifices arguments as well as principles.

Throughout this country, in the media and in government, the pusillanimity of those who accept the reality of biological sex has proven disastrous, facilitating a monstrous abuse of language, the establishment of an orthodoxy that very few people — observing the facts objectively — could agree with. Now there’s the threat that this dogma will also carry the force of law. There is something comically, albeit tragically, absurd in all this — that in the drama of Biological Sex v. Gender Identity, the restoration of sanity now depends, in part, on three straight-talking teen girls.

Editor’s Note: This article has been emended since it first appeared, to reflect the fact that the boys are not yet defendants in the case; the state athletic association is. The boys are filing a motion to intervene.

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