The more accurate terminology
When The National Review is on the sanity side of the argument…
Attorneys representing three female high school track athletes in their effort to bar biological males from competing against them filed a motion on Saturday calling for the presiding judge to recuse himself after he forbid the attorneys from referring to the transgender athletes at issue as “males.”
[Editorial correction: it’s “after he forbade the attorneys to refer”]
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.”
Which it indisputably does. You can claim that’s the price women have to pay so that men can have the right to be called women in every context and situation, but you can’t claim there is no such disadvantage. The first is debatable, the second is just a lie.
NR has a transcript of a phone call in which the judge laid out his reasoning:
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?
Before we even get to the core issue, there’s a slightly less core issue, which is that the judge doesn’t even know that. He can’t know it. He doesn’t know that the two transgender athletes really are transgender and really are not just exploiting the category for the sake of winning races and scholarships. He can’t, in short, know that they’re not faking it.
But even if they’re not faking it, even if they “sincerely” identify as trans girls aka they identify as girls, the fact still remains that literally speaking they are not girls. That’s the core issue, and judges shouldn’t be forcing anyone to repeat these stupid lies in court.
The lead attorney for ADF got the judge to agree that they could say “transgender” as opposed to “transgender females,” but then the judge accused the attorneys of bullying.
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.
This, again, is reality turned on its head. The trans athletes are conspicuously much bigger and more muscular than the female athletes they’ve been beating at their sport, yet they are portrayed as the sad fragile victims in this scenario.
In the motion filed Saturday, the ADF attorneys argue that Chatigyny’s order is “legally unprecedented” and disrupts the appearance of impartiality.
“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,” reads the motion, which was obtained by National Review. “To be sure, the public debate over gender identity and sports is a heated and emotional one. 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.”
Facts, not fictions, not fantasies, not magic realism, not “identities.”
There’s the ruling right there.
“Transgender females” is not a scientific term. The evidence that every individual has an inborn ‘gender identity’ is shaky at best, with numerous tiny little discoveries all contradicting each other and vying for the title of scientific vindication for a hypothesis. Nothing which wasn’t previously explained, is now explained. And there couldn’t be any scientific evidence that an inborn gender identity is THE most important and significant determiner of sex, because running and jumping over every other factor, including reproductive capacities, seems more like a philosophical matter — and bad philosophy at that. Trans Athletic philosophy.
The judge would no doubt have the same objection to the term “trans-identified males.”
And “common human decency?” He’s already ruled.
And at that point, you should be challenged to demonstrate why any woman should have to pay this price for men to feel like women. Why are women being asked to step back and bow their heads for men? Isn’t this what we fought and marched to get away from?
I agree with Sastra – the judge appears to have already telegraphed his (may I use that pronoun?) decision.
“Transgender females” isn’t a scientific term, no. But is it even the term people commonly use? We hear “transwomen/trans women,” right?
I mean, “transgender female” would or could mean “transmen,” yes? Female people who are trans?
Call me intolerant, but I don’t think this judge knows what he’s talking about.
If the right wingers don’t take this judge and make his ramblings the star of a dozen 2020 campaign commercials, they are really missing an opportunity. This judge fits so neatly into the right wing narrative of activist judges legislating from the bench that it is simply amazing.
This judge is already ruling in favor of the trans cult by imposing the dogma-speak on people in the case. They need to challenge his being on the case if he won’t recuse himself.
It’s pretty outrageous, isn’t it.
I think it’s important to separate two things.
1) The underlying ruling is, I think, poor. I disagree with the substance of it, and I think a judge should refrain from limiting counsel’s language except in very clear-cut cases.
2) The reaction of the ADF’s counsel is worse. First, it’s shitty advocacy. When a judge tells you to stop saying something because it doesn’t help your case and he considers it uncivil, you STOP SAYING IT. Find another way to make your arguments. The entire point of wanting to use one term instead of another is because you’re an advocate trying to persuade the judge. Persisting in using a term that this judge has told you he does not find persuasive or helpful to your case is just counterproductive. (Even if this ruling extends to an eventual jury trial, it’s still fairly dumb to piss off the judge.) Unless your real goal is to lose the case while preening for the media and your GoFundMe donors or whoever, which seems to be the real purpose behind a lot of public litigation these days, so who knows. I’m just one of those dumb old school litigators who tries to actually win his cases. Second, filing a motion to recuse because you don’t like a judge’s ruling is utter nonsense. It’s something that pro se litigants and hacks do. There are reams of authority that say that you can’t do that. If it’s an appealable order, then appeal it. If it’s not an appealable order, then either take a writ if that’s available, or violate the order so as to create an appealable sanctions/contempt order (good luck with that! better hope you’re right!), or just make your damn case and add it to the grounds for appeal if you lose.
[…] a comment by Screechy Monkey on The more accurate […]
It seems to me that this is entirely wrong. Athletics divisions are based on sex rather than identity, and so sex is the most reasonable characteristic of a person to discuss. The judge is asking one side to cede the central concept being contested, even if it has not been stated as such: that a male can become female, that a trans woman is at all a woman.