Introducing new concepts into society means that they will soon enough find their way into a lawsuit. And as they do, the onus will shift to the court to decide how to deal with not only the concepts, but the language used to address them. Orwell wasn’t stupid, you know. Some judges have handled it in a needlessly overbearing manner, taking a bludgeon to the problem because they chose to. Other judges have attempted to address these issues with a scalpel, no deeper a cut than absolutely necessary to provide clarity without pointless offense.
Connecticut District Court Judge Robert Chatigny caught the case of three high school girls suing their sports conference for allowing transgender athletes to compete. The problem was the girls, all exceptional athletes, went from being at the top of their game to the second team when boy athletes became girl athletes and seized the lead.
In other words, two positions, both of which have their vehement supporters, had a spectacular crash. In order to accommodate transgender athletes, one had to sacrifice biological female athletes. In the hierarchy of intersectionality, the transgender girls emerged the victors, much as they did on the track.
The ADF filed suit in February against the Connecticut Interscholastic Athletic Conference (CIAC) on behalf of three girls — Selina Soule, Alana Smith, and Chelsea Mitchell. The suit challenges the CIAC policy allowing students to compete in the division that accords with their gender identity on the grounds that it disadvantages women in violation of the Title IX prohibition against discrimination on the “basis of sex.”
The problem for Judge Chatigny was that the attorneys for the three girls insisted on referring to the transgender athletes competing in the women’s division as “males.” The judge was neither amused nor appreciated being put into that position.
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?
This raises a great many questions. It’s one thing for Judge Chatigny to take the position that he prefers, for whatever reasons, the use of “transgender females” to “males,” and it is entirely his choice as to how he refers to the transgender students. It’s another thing for him to make clear to the attorneys for the plaintiffs his thoughts on the language used, and as a general rule, there is little benefit to be gained by refusing to accommodate the judge’s preference when he tells you, point blank, that he does not like the words being used. Pissing off the judge isn’t a great way to persuade him to see things your way.
But then, Judge Chatigny doesn’t stop at his preferred language, or gently informing plaintiffs’ lawyers that their word choice is not winning them any friends in his courtroom. Rather, he orders them to use his choice of words rather than their own. Plaintiffs’ lawyers did not go with the flow, as Roger Brooks refused to respect the court’s direction.
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.
Brooks has a point, to the extent that acknowledging that the transgender athletes are female directly conflicts with his core contention, that identifying as female doesn’t make that penis and its related attributes go away. At the same time, he’s putting the judge in a position where the judge chooses not to be, engaging in rhetorical arguments that put the court in an undesired position. After all, is the argument any less viable if Brooks acquiesces to the court’s preference?
But is Judge Chatigny going beyond the proper bounds of his authority by reducing his word preference to an order? It’s one thing to inform counsel of his choice, and to let plaintiffs’ lawyers know that they aren’t going to get an invitation to his sleepover party by pissing him off with the wrong words, but can he order them to use politically correct language when the crux of their case is to argue against compelled political correctness?
Lurking in the background is the adored notion of civility, that there must be compromise to ensure that litigation doesn’t get overheated and offensive, that civility prevails. Can that be achieved in cases like this without giving up the very issue at stake?
*Tuesday Talk rules apply. Don’t test me, and focus on the language, not the athletes. You’ve been warned.
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What has happened to the English language?
They are ‘transgenders’. There is no transgender male or transgender female, they are just ‘transgenders’.
The whole episode shows how stupid and sad the world has become! What we need is a good pandemic and a reset of people’s values!
I have a rule that Barleycorn is never allowed to leave the first comment. Do you know why?
As Juliet said:
’Tis but thy name that is my enemy;
Thou art thyself though, not a Montague.
What’s Montague? it is nor hand, nor foot,
Nor arm, nor face, nor any other part
Belonging to a man. O! be some other name:
What’s in a name? that which we call a rose
By any other name would smell as sweet;
So Romeo would, were he not Romeo call’d,
Retain that dear perfection which he owes
Without that title. Romeo, doff thy name;
And for that name, which is no part of thee,
Take all myself.
Romeo & Juliet, Act II, Scene II
And you’ll recall that by the end of the play, they’re both dead.
Sure, take the teenage girl’s side.
Which teenage girls?
Boys, by any other name, can run faster than girls.
“This is a case about girls who say that transgender girls should not be allowed to run in girls’ events.”
This strikes me as a “tell”, revealing something important about the judge’s thinking that I would suspect needs correction from the plaintiffs’ perspective. The judge seems to feel that transgender girls are just another kind of girl, like redheaded girls and smart girls are; and it would indeed be rude to argue that “girls with hairlip” or “transgender girls” should not run in girls’ events
I wonder if the plaintiffs might have some success if they emphasized cisgender versus transgender, arguing something like “This is a case about cisgender girls who say that transgender girls should not be allowed to run in cisgender girls’ events.”
The real problem lies in the actual bias this shows. A just who insists on transsexual females for people who are fully intact, post puberty males is showing he has already accepted the idea that saying one is female makes it so even in the context of this case. Imagine the judge had said don’t use “affirmative aaction” or “racial preferences” to describe policies designed to increase the representation of blacks at the expense of Asians. Imagine the judge had said such measures must be called “diversity enhancing measures.”
The word choice doesn’t affect the substantive issues in the case, and asking for recusal definitely runs the risk of pissing the judge off. That said, there are a few possibilities:
1. The plaintiffs want the judge gone for tactical reasons, and this is their wedge.
2. Delay and/or attrition tactic. CIAC will have to pay its lawyers to litigate this, but the plaintiffs won’t.
3. The ADF lawyers really think that whether or not they adhere to the judge’s terminology is a fight worth picking on its own terms because they are morons, and are representing the Cause instead of the client.
My guess is #2, but I’m a cynic.
NE
That’s very cynical. Could be right, but still.
Option 4: They’re morons.
Option 5: When the judge signposts that he’s going to rule against you, you need to make a real clear record for the Appellate Division.
With apologies to Hanlon, never explain with stupidity that which is required by court rules.
I think plaintiffs are doing the right thing by pushing the issue now, because I I think that this may make a substantive difference down the road. Judges are biased humans just like the rest of us and they are equally susceptible to spin, first impressions, and interpretation. Years from now when this is still on appeal every paper, judge, and clerk will see one of two arguments:
1) Boys should not be allowed to compete in girls’ sports, and being transgender doesn’t make you a girl.
2) These girls should not be able to compete in girls’ sports, just because they are transgender girls.
One of those arguments is much stronger than the other and I think it’s wise for the plaintiffs to refuse to push it.
Everybody’s entitled to their own facts – including “scientific” facts – if they wear a robe.
There’s always social science.
Just another example of a court trying to declare “science” and “accuracy” based on its wokey opinions. The judge is utterly out of touch in his failure to recognize that a great many well informed people do not share his views.
Martina Navratilova.
“You can’t just proclaim yourself a female and be able to compete against women. There must be some standards and having a penis and competing as a woman would not fit that standard.”
The definition of transgender according to Webster is “a person whose gender identity differs from the sex the person had or was identified as having at birth”. The term “transgender females” accurately captures that the people in question were born with a biological gender that is not female but claim to identify as females which is consistent with the ADFs stated position.
The Judge did not instruct ADF to use the term “female” which is how they phrase the reply, so I find their reply disingenuous. A term made up of two words has a specific meaning and arguing that you can split one word from the other out of context makes little sense. In this case, the word “female” is used as an adjective to modify the noun “transgender”. ADF is being asked to call the people transgender, the modifying adjective just helps everyone keep context because they do not seem to be arguing that they should exclude “transgender males” from these competitions.
Or are they being asked to call them female, with “transgender” being the modifying word? The objection appears to them being called male, even as it pertains to sex, not to the lack of clarification about whether they are cis or trans in regard to gender. And how can one use the phrase “transgender female” without using the term “female”?
In a biological context, “transgender female” could as easily mean someone who is “assigned female at birth” (sex) who now identifies with a gender of male. It would be confusing in general use but accurate in that specific context.
Maybe we should work out which language is for sex and which is for gender. Because if it’s true that they really are distinct, as we are told part of the time, then “male woman” could be the most accurate term possible. The TERFs* probably won’t appreciate this though.
*Trans Exclusive Reactionary Feminists, those who think that transgender AFABs should be excluded from women’s sports for not being feminine enough.
Calling them “males” is a bit aggressive and less accurate than just admitting that they were born male and now identify as female. Whatever they’ve done to transition, they aren’t “male” anymore. The lawyer loses nothing by agreeing to refer to the group as “transgender females” while making clear the physiological differences of this group as compared to other females. Make the objection on the record to preserve whatever you can and move on.
I would tend to agree with the judge on this one. Get to the point, counselor.
So the judge was right to order the plaintiffs to use his preferred language?
Come now. One might read your column and think judges never order litigants to use preferred language, but it happens all the time and we ignore those orders at our peril. How many times have we, as criminal defense lawyers, sought to humanize our clients by calling them by their first names in court, only to have Hizzoner or Herroner demand that we refer to the defendant as “Defendant Hatfield” or “Mr. Hatfield” rather than Darryl? And how many times have we said, in response, “Yes, Yerroner, but please note my objection”?
Not close. Calling your client “Little Johnny” is a matter of decorum and to not attempt to improperly sway a jury. This pseudonym goes directly to the main issue and there is no jury to sway.
Yes, it was a poor analogy. But “little” Johnny? What mother names her child “little”?
Howl? GD? you know the song!
Sorry Skink, I can’t figure out what song you’re thinking of.
But since it’s Tuesday, I offer this:
An accountant and a lawyer walk into a bakery.
The accountant takes 3 buns, puts them into his pockets, and leaves. He says to the lawyer, “It took great guile and skill to steal these buns. The owner never saw me take them.”
The lawyer replied, “That’s just simple thievery. I’ll show you how to do it the honest way and get the same results.”
The lawyer then proceeded to call out the owner of the bakery and says, “Sir, I want to show you a magic trick.” The owner was intrigued, so he came over to see the trick.
The lawyer asked him for a bun and proceeded to eat it. He asked two more times, and after eating the third bun the owner says, “Okay, my friend, where’s the magic trick?”
The lawyer says, “Look in my friend’s pockets.”
I would have rather had some representative of the transgender girls raise the issue in a properly adversarial manner, but the article jumps to the judge raising the issue seemingly sua sponte during a conference call, which is a bit weird. It’s not outside his broad authority, though, to resolve a potential issue before it arises and to try to get to the point of the litigation rather than waste time on terminology.
I’m surprised to say that the judge’s authority is even broader than I had previously thought. Why are you doing this to me?
“they were born male and now identify as female. Whatever they’ve done to transition, they aren’t “male” anymore.”
There are certainly plenty of transgender advocates who agree with you: A change in personal identification is all that is needed to become the sex of your choice. But that’s certainly not the law or even close to the majority view. And frankly it’s basically the main issue in the case, so ceding it at the outset would be unwise.
For a transgender girl to compete as a girl in the CIAC requires only that “the expression of the student’s gender identity is bona fide and not for the purpose of gaining an unfair advantage in competitive athletics.” No hormone treatment or surgery is required. We don’t know what medical treatments the two transgender girls winning all the races have undergone, but they are not required to have undergone any.
Depending on whom you ask, colloquially, “transgender girl” may or may not imply at least hormone treatment.
Huh, that’s a strange policy. I didn’t know that’s all it took, but it doesn’t change my opinion on the order regarding terminology. I’m an unwitting advocate for the interests of big-trans, apparently, even though I think it’s unfair and wrong for transgender females to compete alongside other females. The arguments can be made without “misgendering” and the can of worms that represents.
Most people who have paid any attention to this debate will likely assume that the transgender female athletes are required to keep their testosterone below a threshold for a full year before competing, because that is the least restrictive threshold set by sports governing bodies (both olympics and NCAA). Others are more restrictive, requiring hormone therapy and surgery.
It is, of course, problematic for an interscholastic governing body to require that. The policy has to apply to all high school athletes, who are aged 13-18. Does anyone want 12-year-olds who are unsure of their gender to be given incentives for life-altering hormone therapies so they can keep their testosterone low enough for the year before high school?
This is a can of worms either way. I only found articles on one of the winning athletes, and she and her representatives are telling people that it is none of anyone’s business whether or not she has had any medical treatments, she has a right to compete regardless. The judge agrees with you, but it is at least not crazy for one side to claim that the only thing that makes her a girl is a signature on a form and the way she dresses, and that they shouldn’t be required to call her one.
We should just pass the ERA, and then separate women’s and men’s sports won’t be allowed anyway, right?
What PK was trying to tell you is that he was talking about the language (the topic of the post that’s eluded you). You, having no apparent interest in law or the post, are talking about your issue which isn’t what he was talking about. This is why the lawyers here beg me to ban non-lawyers, but would I do that to you?
Have any non-lawyers ever asked you to ban a whole class of people from this site? No? We might not be on point, but we’re not haters.
Not that kind of hater, anyway.
Everybody who doesn’t agree with me should be banned. 😛
Claiming that the male athletes are in fact “transgender females” goes hand in hand with claiming that the female athletes are “cisgender females,” something that asserts there to be an identity in their heads that I am sure – given the circumstances – all would deny in the strongest possible terms.
Does the judge get to tell these girls they have a “gender identity” in common with any Tom, Dick, or Harry that says so? Seems anathema to me, but here we are.
Perhaps referring to the plaintiffs as “females with ovaries” and the respondents as “females with testicles” would satisfy the judge? (A previous commenter used the term “fully intact.”
Or allow for multi-tier scoring, and refer to respondents as “estrogen-disadvantaged.”
“Judge, lets split the baby: ‘Former Boys.’ “
A perfect compromise leaving everyone unhappy. I love it.
This is why we’re leaving everything to your sister in the will.
Well that is annoying. The National Review article presented a paraphrasing of the judges statements as a quote. Not that the paraphrasing in general isn’t accurate, but mixing and matching quotes without indicating that it is being done is tad bit dishonest.
From the transcript one of the first sentences out of the judges mouth was
‘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.”‘
Which does cast the following statements by the judge in a slightly different light. It goes beyond just using labels and starts dictating which arguments can be made, specifically it basically forbids an argument that by allowing transgender female athletes to compete in female athletic events you are allowing “male athletes” to compete in female athletics.
Does it? Not sure I see why that changes the issue.
Provocative post, as reflected in some very interesting and fairly stupid comments. Nice to see people at least trying to think on occasion. Hope they don’t sprain anything.
It is nice to see. And I hope no one sprains anything, you included, pal.
The question is can a person who is xy become xx? No, this will never happen. People who have surgery and hormone treatments to change their gender still have the same chromosomes, in every cell of their body, that they were born with. Chromosomes, whether xx (female), xy (male) or xyy (double y syndrome, also male) define gender. That factor will never be changed without entering and altering every cell in the human body.
That is not the point of the post. The point is language and the judge’s effort to control it. That you want the Hotel judges and lawyers to consider something else don’t matter.
This is the only engagement you will receive unless you focus on the issue. Otherwise, you swim in the pond, not the pool. But I warn you, the Hotel cook dumps old grease in the pond.
OK, after more thought I agree with you and the judge. Legally the instant transgenders are females. Biologically they are not. But they should be classified and spoken of in court as females, not males. Big Zoey Tur will be pleased.
How is what the judge did here different in kind, if not degree, from what the unanimous Supreme Court condemned last week in United States v. Sineneng-Smith, where it ruled that judges are not supposed to take over the parties’ arguments and substitute their own instead?
Instead of asking “how is it,” maybe it would be a bit more interesting if you explained how it is, since you’re question-begging and whether the judge here is language-policing or dictating the argument is the core question.
https://youtu.be/452XjnaHr1A