In baseball, if you don’t like the umpire’s call, you can argue, scream in their face, kick dirt at them — and risk getting tossed from the game. On some plays, you can even appeal. But getting the ump, the referee or any other “zebra” shirted official kicked out of a game that’s underway? No athlete or manager in any sport can make that happen. Nobody would dare. It’s “unsportsmanlike behavior.”
The Alliance Defending Freedom, however, isn’t playing by the rules of sports. The Bible and federal statutes provide guidance for the Christian fundamentalist law firm — which has been labeled an extremist hate group by the Southern Poverty Law Center for consistently attacking the rights of LGBTQ Americans in courts across the country. Last week, ADF lawyers representing three Connecticut student athletes dared to ask for an extraordinary solution to a problem they have with District Judge Robert Chatigny, a Clinton appointee who is hearing their federal civil rights lawsuit to stop Connecticut from allowing transgender student athletes from competing with their cisgender (meaning, not trans) clients. The ADF attorneys are demanding the judge voluntarily remove himself from the case.
Their argument is that Chatigny’s order last month that they show respect for transgender athletes by not misgendering them as “males,” instead calling them “transgender females,” is an “appearance of bias” and a violation of their First Amendment rights.
When the judge told the ADF in the April 16 conference call that they must stop misgendering Andraya Yearwood and Terry Miller, both 18, their lawyer objected. So Chatigny accepted a compromise of calling them simply “transgender.” But ADF’s motion means it is rejecting its own proposed compromise and executing the nuclear option by demanding the judge take a hike.
Here is an account of the exchange between the judge and ADF’s lead attorney Roger Brooks:
Judge Chatigny: I don’t think we should be referring to the proposed intervenors as “male athletes.” I understand that you prefer to use those words, but they’re very provocative, and I think needlessly so. I don’t think that you surrender any legitimate interest or position if you refer to them as transgender females. That is what the case is about. This isn’t a case involving males who have decided that they want to run in girls’ events. This is a case about girls who say that transgender girls should not be allowed to run in girls’ events.
ADF lead attorney Roger Brooks responded that he could not “comply with that direction consistent with vigorous representation of the position that my clients are putting forward here.”
JC: What I’m saying is you must refer to them as “transgender females” rather than as “males.” Again, that’s the more accurate terminology, and I think that it fully protects your client’s legitimate interests. Referring to these individuals as “transgender females” is consistent with science, common practice and perhaps human decency. To refer to them as “males,” period, is not accurate, certainly not as accurate, and I think it’s needlessly provocative. I don’t think that you surrender any legitimate interest or position if you refer to them as transgender females. That is what the case is about. This isn’t a case involving males who have decided that they want to run in girls’ events. This is a case about girls who say that transgender girls should not be allowed to run in girls’ events. So going forward, we will not refer to the proposed intervenors as “males”; understood?
ADF: The entire focus of the case is the fact that the CIAC policy allows individuals who are physiologically, genetically male to compete in girls’ athletics. But if I use the term “females” to describe those individuals — and we’ve said in our opening brief, we’re happy to use their preferred names, because names are not the point to the case. 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. So, Your Honor, I do have a concern that I am not adequately representing my client and I’m not accurately representing their position in this case as it has to be argued before Your Honor and all the way up if I refer to these individuals as “female,” because that’s simply, when we’re talking about physiology, that’s not accurate, at least in the belief of my clients.
JC: So if you feel strongly that you and your clients have a right to refer to these individuals as “males” and that you therefore do not want to comply with my order, then that’s unfortunate. But I’ll give you some time to think about it and you can let me know if it’s a problem. If it is, gosh, maybe we’ll need to do something. I don’t want to bully you, but at the same time, I don’t want you to be bullying anybody else. Maybe you might need to take an application to the Court of Appeals. I don’t know. But I certainly don’t want to put civility at risk in this case. Quite the opposite. My goals for this case include, very importantly, the goal of maintaining civil discourse, respectful, humane, intelligent, civil discourse in the course of the case. Nothing more, nothing less.
On Friday, the ADF filed a motion for Judge Chatigny to step aside, so that another judge, presumably, one who will let them misgender trans people willy-nilly, can replace him.
“A disinterested observer would reasonably believe that the Court’s order and comments have destroyed the appearance of impartiality in this proceeding. That requires recusal,” the ADF wrote in its motion, which was first reported in typical, pearl-grasping anti-LGBTQ fashion by the National Review.
The ADF also argued that the judge’s order “would leave an impartial observer gravely concerned that the Court has prejudged the matter, rejected core aspects of Plaintiffs’ case before hearing the evidence and legal arguments, and assumed the role of advocate for the defendants.”
“To be sure, the public debate over gender identity and sports is a heated and emotional one,” the ADF conceded. “This only increases the urgency that court preserve their role as the singular place in society where all can be heard and present facts before an impartial tribunal.”
Uh huh. So it’s now considered “impartial” to misgender trans people in Trump’s America? Gotcha.
The ACLU was also on that conference call, and gave Outsports this statement in response to the ADF’s motion: “The district judge simply asked ADF to treat our clients with dignity and respect by not gratuitously and repeatedly misgendering them,” said Josh Block, senior staff attorney, ACLU LGBT & HIV Project. “That’s not bias. It’s common courtesy.”
The ACLU also pointed out that Judge Chatigny is following legal precedence with his order.
- Lynch v. Lewis, Georgia, May 7, 2014: “The Court and Defendants will use feminine pronouns to refer to the Plaintiff in filings with the Court. Such use is not to be taken as a factual or legal finding. The Court will grant Plaintiff’s request as a matter of courtesy, and because it is the Court’s practice to refer to litigants in the manner they prefer to be addressed when possible.”
- Smith v. Rasmussen, Iowa, 1999, affirmed by the 8th Circuit in 2001: “As a matter of courtesy, the masculine pronoun will be used in reference to the plaintiff throughout this opinion, as it was throughout the trial by all parties. The court appreciates such courtesy from all counsel and witnesses, whatever the legal merits on any issue may be.”
- Canada v. Hall, Illinois, Mar. 21, 2019: “Although immaterial to this ruling, the Court would be derelict if it failed to note the defendants’ careless disrespect for the plaintiff’s transgender identity, as reflected through implications that the plaintiff might not actually be transgender and the consistent use of male pronouns to identify the plaintiff. The Court cautions counsel against maintaining a similar tone in future filings.
But not every transgender athlete agrees with the judge and the ACLU. Pro golfer Mianne Bagger weighed-in, on Twitter, calling Chatigny’s order “fanciful thinking.”
The recognition of actual biological sex is crucial to addressing issues in sport with regard to transitioned men and women. That a judge appears to be demanding the adoption of fanciful thinking +language might be respectful in a social setting, but not in a court of law https://t.co/c7cuqKM7Az— Mianne Bagger (@MianneBagger) May 12, 2020
In 2017, researchers Boby Ho-Hong Ching and Jason Teng Xu conducted a study published in the journal Sex Roles investigating common stereotypes involving transgender individuals. They gathered 132 university students in Hong Kong and concluded that those who were exposed to information that supported the “biological” argument for gender differences were significantly more likely to report negative stereotypes about transgender individuals, to report prejudicial attitudes, and to reject equal rights.
As NPR reported, the biological basis for gender differences reinforces what psychologists have dubbed an “essentialist” view of gender.
Essentialism holds that men and women belong to fundamentally different categories that have some inherent basis (some “essence”), and that the divide between these categories is sharp and immutable. Members of the same category share many important similarities with each other. The essentialist view is an obstacle to understanding the mismatch between a person’s gender identity and their assigned sex, and they presume the biological basis for their assigned sex reflects their true “essence.” That, the researchers argued, could support a more prejudicial attitude towards people who identify with a gender other than the one they are presumed to be at birth.
Julia Serano also addresses essentialism in her fabulous book, Excluded, and in a powerpoint presentation she made to the Transforming Care Conference.
My hope is that the judge stands his ground, and if ADF insists on pressing for Catigny’s removal, they can appeal. And the next time you read the words “biological male” to refer to a transgender girl or woman, remember his order to the lawyers for this transphobic group:
“Referring to these individuals as “transgender females” is consistent with science, common practice and perhaps human decency. To refer to them as “males,” period, is not accurate, certainly not as accurate, and I think it’s needlessly provocative.”