Guest post: Just make your damn case
Originally a comment by Screechy Monkey on The more accurate terminology.
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.
Well, I wasn’t expecting that.
Regarding recusal, on short notice the best explainer I could find was this one from Popehat dating back to the question of whether Judge Curiel would have to recuse himself from a Trump lawsuit because Trump “wants to build a wall.” It is not exactly on point, obviously, but note this part:
There are further links at the Popehat blog post.
Interesting. But I’m so angry at the judge’s order and I feel like it’s so beyond the pale that it does meet the benchmark Popehat points out — “such a high degree of favouritism or antagonism to make a fair judgment impossible.” It’s likely that I’m just too angry to see it clearly, but the way I see it is this: a case that’s all about distinguishing biological sex cannot be done properly if the judge calls you a bigot for distinguishing someone’s biological sex. Sex is an objective fact across the biosphere. Describing a human as male should be no different, legally, from describing a tree, a spider or a dolphin as male.
Not to mention the fact that the judge is factually wrong: the defendants are not transgender females and it is not “scientifically accurate” to call them transgender females. They’re transgender males. A transgender female is a transman. If the judge is so ignorant on the subject of the case that he’s making orders based on factual inaccuracies, doesn’t that merit stronger action than just lose-and-appeal-later?
Did you read the transcript excerpts at the National Review article? Even there — and they’re only quoting parts that support their position — the judge doesn’t accuse anyone of being a bigot. He says it’s unnecessarily provocative to call them males, and suggests it might constitute bullying. He doesn’t declare a position on the ultimate issue in the case.
As to the supposed “facts,” first of all, the judge wasn’t making a scientific finding. He was simply observing that the generally accepted terminology here is transgender girls/women/females. You can gripe about that all you like, or claim that it has implications you don’t agree with, but that IS the general usage these days. Insisting on using another term risks sounding like Dennis Prager, who recently bemoaned on his radio show how you can’t call people Negroes or colored any more.
And as to recusal, it simply wouldn’t matter. I don’t think you understand how courts work. Although some judges remain complete poker-faced throughout pretrial proceedings and never comment on anything, other judges will flat-out tell you at an initial hearing that they think your case is very weak. And you can politely point out that they haven’t seen the evidence yet, and the judge will politely acknowledge that yes, there might be more than what I have in front of me right now at the pleading stage, but “I’m just saying….”
And by the way, some of those judges will eventually rule in your favor, because they changed their minds when they actually looked at the evidence. Or they were shooting from the hip then and hadn’t really thought deeply. It just isn’t that big a deal. I mean, as a lawyer I’d always rather hear that a judge’s initial impression is favorable, but judges really do remain open-minded to a large extent and you just can’t read that much into it. And more importantly, it’s all within the rules of what a judge is allowed to do.
No one ever expects the Spanish Inquisition…but you told us things I didn’t know and I thought they were worth knowing. Plus look: further discussion, so I REGRET NOTHING.
I’m curious about one thing. (Probably more than one but here’s this one.) “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…This isn’t a case involving males who have decided that they want to run in girls’ events.”
But he doesn’t know that. He can’t know that. They say they are, but that’s the thing: men who say they are and really mean it are indistinguishable from men who just do it to get an advantage.
I forget what my question was. Maybe I just wanted to point out again that he’s assuming more than he can know.
I guess I just wouldn’t read all that much into it.
Counsel can still make all the arguments they need to make. They can point out that, whether or not we call any particular competitors “males,” the state’s policy would allow males to compete because the only qualification for being “female” under the policy is self-identification, which means that any male who is willing to say that he identifies as female would be eligible. And since (1) self-identification doesn’t change the biological reality, which is the entire or at least the majority of the rationale for having gender-segregated sports; and (2) even assuming that it is legitimate for “sincere” self-identified females to compete notwithstanding their biology, the policy has no means of distinguishing between “sincere” and “insincere” contestants.
There. I just made your argument without calling any particular individual a male. I’m not saying it’s the most eloquent version of the argument, but it makes all the necessary points.
It’s just… all these complaints read to me like a husband who’s aggrieved that the family law judge told him that he needs to stop referring to his soon-to-be-ex-wife as a “whore.” The man is standing there saying “but judge, she was criminally convicted for prostitution. The dictionary says that a ‘whore’ is ‘one who engages in prostitution.’ Ipso facto, my wife is a whore, and you are infringing my rights!” And the poor judge is just trying to run a civil courtroom and says “look, I’m not saying you can’t reference the conviction. You can argue that she’s an unfit mother and shouldn’t get custody. You can say she’s been convicted of prostitution. You can do all that without calling her a ‘whore,’ ok?” And I know that’s an imperfect analogy, because “whore” has negative connotations that “male” does not, generally.
I also think that a lot of people are blurring the lines between “I don’t like that this judge’s comments suggest that he is likely going to rule against the plaintiffs on the ultimate issue” and “I think this judge did something improper and unethical and must be recused.” Again, on the underlying issue of who gets to compete in “girls” sports, I’m pretty much on your side — unless someone can show that they are not biologically advantaged (including not just current hormone levels, but bone structure advantages), I’m skeptical they should be allowed to compete. I’m just telling you that the law allows judges to make these kinds of comments. And it’s not a bad thing, really — although some judges take it too far and toss off casual comments that can have a huge effect on settlement value, it really is helpful as an advocate to get an idea how a judge is thinking, which arguments are likely to be persuasive, etc.
Sorry, don’t mean to take over the thread even if it’s “my” guest post. I’m off to make dinner and let others speak for a bit.
Sorry I probably should have moderated my tone a bit to make it clearer that I probably do agree with you but that I’m clouded right now because I’m personally steamed at the judge. I think your perspective is quite interesting exactly because I disagree with you and I can sorta tell it’s because I’m clouded with anger and I don’t have as much expertise in this area as you. I definitely don’t understand how courts work; IANAL as they say.
That said, I’m not sure I agree that “transgender females” is a generally accepted term to describe transwomen. Actually I’m not sure if I’ve ever heard that term used in reference to anything but a transman before. I find that usually the “other side” splits into two groups: those who avoid using the words male or female altogether because they’re avoiding acknowledging the existence of sex, and those who affirm transwomen as simply “female” and drop the “trans” qualifier altogether as if to defiantly avow that trans people are truly the opposite sex.
The officially approved term, at least, is “trans woman” – definitely not “trans female” and even less “transgender female.” But that’s in, you know…Transolandia. But that could be what the judge meant – in which case he got it wrong.
Artymorty,
Don’t worry about it; no offense taken by me. And I hope you weren’t offended by my reference to Dennis Prager and his nostalgia for outdated terms for black people. All of my analogies suck today, I’m afraid.
Arty and Ophelia,
Yeah, remember that this is a transcript of a phone conference, not a formal written ruling. I don’t think the judge was specifically requiring the phrase “transgender females” as opposed to “transgender women”; at one point the judge referred to “transgender girls,” so I think he was using those all interchangeably. His real point was, stop calling them “males.” That’s all. Just knock that off, because they find it offensive and you don’t need to say it to make your argument.
To try yet another analogy: if some pro-secular group was litigating a case and kept referring to the other side’s religious beliefs as “fairy tales,” and the judge said “hey, knock that off. I don’t find it persuasive, and you can make your point that your client considers their beliefs false and that they’re being unfairly imposed on your client, without the disparaging term,” I wouldn’t be bothered by it.
The following will likely read as snarky, jerky, assholish, and otherwise impolite. I’ve yet to learn how to be diplomatic. [robot]Greetings, human meat sacks.[/robot]
Yes, you did. Right here:
(Emphasis mine, obviously.) The judge would likely not appreciate your attempt to circumvent his order, and thus would be receptive to something of the form, “Opposing counsel refers to changing biological reality. What reality is that? That my clients are, in his/her view, male. He/she might as well have called my clients Penis People. He’s saying that the reality is my clients are male and either lying or delusional.”
The attempt to circumvent the restriction would get the same sort of response as when I attempted to turn one wish into n wishes in a D&D game by having my character invent a new word “flibble”, define it in a long document as meaning the realization of my n demands, and then wishing that “flibble” obtain. Things did not go well for that character. Interplanar entities older than the first stars don’t appreciate having their generosity exploited.
No, it doesn’t. It can’t, because whatever case you make cannot entail that the “transgender females” are literally male. One might contend that what is verboten is specifically and only the word male. That can’t be true, however, as employing “trans-identified male” or “persons born with penises” would not be well received. Neither, I imagine, would using the Pig Latin “ale-may”, nor the equivalent of “male” in any natural language, living or dead. No, the prohibition is on communicating the concept that males who claim to be girls are in fact males.
But maybe that seems irrelevant to you, because:
That would be a reasonable read, except that (a) your analogy is incomplete and (b) you’ve muddied the mix of technical and vulgar language. This would be closer to analogous:
“It’s like a husband who’s aggrieved that the family law judge told him that he needs to stop referring to his soon-to-be-ex-wife as a “prostitute”. The man is standing there saying, `But judge, she was criminally convicted for prostitution. The language of our prenuptial agreement is clear that if she’s ever involved in criminal prostitution, she loses all claim to any remuneration. Ipso facto, my wife’s being a prostitute is the core of my case, and you are infringing on my rights!”
Actually, it’s worse than that. It’s closer to requiring that the husband refer to the wife as the “prenuptial-compliant maiden”. Any reference to her criminal conviction would entail that she is not in compliance with the agreement. The judge’s order makes it so that whatever case you make cannot even state the nature of the suit per se, as the fundamental claim is that males are where males should not be.
But again you’re replacing a value-neutral term (male) with a value-laden one (fairy tale). A true analogy would require that the judge enjoin the pro-secular group to stop referring to the other side’s beliefs as “unsupported by evidence”, “unproven”, “not demonstrated to be true”, or even just a simple “false”.
Analogies are useful. A good one can aid understanding more than an entire treatise of systematic premises (e.g., Tractatus Logico Philosophicus). On the other hand, analogies are also dangerous. An almost-good one can confuse, mislead, and utterly confound, because small imperfections can have far-reaching consequences. Because they’re small, it’s easy to dismiss them as being trivial, but constructing a complex analogy is like long-range shooting. Even a heartbeat’s disturbance can send a shot awry.
Screechy, in general I accept your point, but I think it is a bit much to refer to it as scientifically accepted. PZ Myers accepts it, and some other scientists, but I do think the judge was making his own determination on an issue where he has no expertise. And I get that it was a phone call, not a ruling, but I still feel that is a bridge too far. He probably has the right to say it, but the scientist in me gets bent out of joint to hear things like this. Science actually divides humans into two sexes, with most people fitting unambiguously into one sex or the other, and a tiny fraction of people who are ambiguous because of some unusual genetic differences.
Male is a term of sex, and is defined scientifically, and science hasn’t actually changed the definition of that term, though there are some that claim it is meaningless, at least when applied to humans. I have lost all respect for most of those scientists, at least on this issue, because they cannot give any good scientific reason why that should be. So maybe if the judge would refrain from making scientific pronouncements he clearly doesn’t have the expertise to make, I might feel a bit less miffed. But judges will do the things judges do, and there have been judges making scientific pronouncements that have miffed me in many other cases, particularly creationist judges, so why should this be any different? ;-)
That second analogy, by the way, would also be made closer if the judge required that the secular group refer to the other side’s beliefs as true or something, as the judge in this case is requiring that the plaintiffs use language endorsing their opponents’ belief.
Nullius,
Look, I don’t like playing this card, especially since I’m pseudonymous here, but since you’re not being diplomatic by your own admission:
I’ve litigated cases in state and federal trial and appellate courts for over 20 years.
You’ve got experience playing Dungeons & Dragons. As do I, for what that’s worth — which is zip.
I know whose interpretation of a judge’s comments I trust more. I’ll let others decide for themselves.
#12 Nullius
This is where the whole problem starts and ends —> one side is demanding that reality and all of humanity bend to their whims and the other side is speaking the truth. There is just no “compromising” that can be done at the beginning and the end of all this trans cult dogma. Either the government decides it can compel citizens to lie and bow to the demands of one particular religion (transgenderism) or the Supreme Court will decide that the First Amendment prevents that.
If the government decides that, out of all the belief systems on earth, transgenderism is the one to reign supreme over all, even non-believers, then it is time to get rid of the government. Hopefully peacefully via voting out fools or, well, I am going to stop before I get myself accused of advocating violence.
Screechy and Nullius, I think there’s a sense in which you’re arguing different cases here:
-Screechy is arguing about how courtrooms actually work in practice
-Nullius is arguing about how courtrooms ought to work if they were fair
Those of us who have watched lots of courtroom drama… or, who have, you know, been to court multiple times… know that a judge is a little king. His word is law. You will gain nothing from opposing him except his ire. So Screechy is entirely right there: the judge can decide the facts of the case before the case is tried, as he does by insisting you not refer to the males in question as males, and there’s nothing you can do about it.
On the other hand, if he does this it is a significant flaw in any ruling he could make against the girls, because it provides plausible evidence of bias on his part. That means Nullius is right too; it’s just that the effect of this bias won’t be decided in his court. It will be decided on appeal. And this lawsuit was filed in federal court. Either one of you want to bet it won’t end up with the Supremes?
Papito,
I’d say there’s a good chance that this issue ends up before the Supreme Court Whether this particular case does (by which I mean they agree to take the case, not just that one side asks them to) is a different question — it wouldn’t surprise me, but I would bet against it at even odds. SCOTUS often lets the law in new areas develop, and waits until there are conflicting rulings from different federal circuit Courts of Appeal before stepping in to resolve the conflict. I haven’t researched whether or not there are any existing federal appellate rulings directly on this issue, so I’m not sure where we are in that process.
As to your other comment about reality vs. theoretical fairness, I can’t agree with that. What you and others here seem to be implying is that any court ruling on this subject that goes against your preferred outcome is not just an incorrect ruling, but evidence of judicial bias and ethical misconduct. Believe me, I have a long list of I-can’t-believe-the-court-ruled-that-way decisions, both famous ones and obscure ones, but I don’t assume that “wrong outcome in my opinion” implies unfair process, which sure seems to be the express or implied sentiment of many here.
And I actually wasn’t even making a normative argument. I wasn’t concerned with how courts ought to function, with fairness, or with bias. The judge’s position could conceivably be ethically correct, but ethics is not my field of expertise. It could be legally correct, but law is not my field of expertise. My only concern was the semantic entailment of the judge’s request vis-a-vis the substance of the case. To wit …
@Screechy: On your interpretation (from what I can tell) the prohibition is tightly restricted to the word ‘male’. To me, that seems incredible, in the sense that it is difficult to believe that it jibes with your experience.
Screechy, I suppose I didn’t explain myself well, because you are still responding on a tangent. My point is that the judge is making a prejudicial statement about facts that are at the center of the case by requiring that the two boys be referred to as females rather than males.
Suppose the case were a slip and fall, and a key question were whether the plaintiff had slipped on the sidewalk or in the street. The plaintiff wished to demonstrate that she slipped on the sidewalk, and the defendant wishes to establish that she slipped in the street.
Here comes the judge, and he says “Plaintiff, you are no longer allowed to use the word ‘sidewalk’. But not inly can the defendant use the word ‘street,’ but you have to as well.”
Would that be impartial?
Let me make a few observations/assertions from experience that I think will address some of where both @17 an @18 are coming from:
1. Judges usually bend over backwards to ensure procedural fairness. Whether out of a sincere belief that it’s important to provide fairness, or out of a fear of being reversed by a higher court, or both. Judges generally accept that people are going to disagree with their rulings, but they don’t like people thinking they weren’t given a fair hearing. That’s not to say that judges never overstep, out of innocent error or poor judicial temperament, and commit such a severe procedural error as to be a denial of a fair trial. It happens. But it’s the easiest kind of error to avoid, and most judges are pretty careful about it.
2. Because of (1), it is quite unlikely that a judge would make a ruling in a telephonic conference that utterly kneecaps one side’s ability to present its case. It would be an incredibly sloppy thing to do unintentionally, and (at least pre-Trump), very few federal judges are that sloppy and reckless. And if a judge just hates one side’s case is out to sabotage them, it’s completely unnecessary. You know what judges do to litigants they think have awful, weak cases that are sure losers? They grant them every procedural indulgence within reason. They leave no grounds for appeal for the side they expect will lose. “You want to call an extra witness you didn’t disclose before? Well, I could preclude it, but I’ll allow it. You want to file a supplemental brief on that issue? Sure, go ahead. Etc.”
3. In addition to fairness, judges are very big on civility. They hate it when counsel bicker with each other. They don’t want inflammatory rhetoric or terminology being tossed back and forth. They don’t like you calling an opposing party or witness a “liar,” even when you’ve got rock-solid evidence that they lied.
4. In light of 1-3, when you’re presented with a judge’s comments, and deciding “hmm, is this judge issuing a broad declaration that one party is not allowed to make an argument essential to its ability to present its case, or is he just making a limited instruction to avoid specific words or rhetorical devices in the interests of civility?” you should presume the latter absent very compelling evidence.
5. Can limiting one side’s rhetoric be prejudicial in theory? Sure, we can all construct those hypotheticals. But consider who the audience is in this case. Perhaps some of these issues might ultimately end up at a jury trial. But right now, this case is at the pretrial stage, and given the nature of the case, it’s the judge who is the crucial audience right now. When the crucial audience is telling you “I don’t find that piece of rhetoric helpful,” that isn’t “unfair” to you, that’s helpful. Real lawyers, as opposed to ones on tv, don’t browbeat judges. They don’t keep pounding an argument or, even worse, a specific word or phrase, that a judge isn’t buying in the hopes that the judge will somehow be impressed and won over by the lawyer’s sheer passion. You look for another way. Any lawyer worth his or her salt can find multiple ways to frame the same point. The job, again, is to persuade THIS JUDGE. Not the folks in the gallery. Not people on Twitter or in a blog comments section. And not even an appellate court, because appellate courts receive an entirely new set of briefs and arguments — the actual phrasing of arguments in the lower court is generally irrelevant, unless it is to show that one side completely waived an argument. (And that wouldn’t be an issue here — it’s arguments that can be waived, not specific phraseology, and in any event, you haven’t waived something if you tried to raise it and the judge ordered you not to.)
6. It is not unethical for a judge to comment on a case before him or her, during an official proceeding at which the parties are all represented (or had an opportunity to be, and chose not to be there). In other words, yeah, it would probably violate the ethical rules for a judge to call up a newspaper reporter and say, “plaintiff’s case is weak.” But it isn’t improper for a judge to comment during a status conference or other preliminary proceeding that “I’m not sure you’re going to be able to prove claim X based on what you’re telling me here.” Or, “seems like both sides have good arguments here, and a jury might go either way — have you discussed settlement?” Judges do not have to sit there, Sphinx-like and inscrutable, until it is time for them to issue final judgment on the matter at the conclusion of all the evidence. Judges form opinions as the facts are presented and arguments made, and they often express them, either directly in the form of assertions, or indirectly in the form of questions. Now, you’re entitled to think that this is unfair and inappropriate if you like. But I think most litigators will tell you it’s actually helpful to know what a judge is thinking, so that you can respond to it appropriately and plan your case accordingly — it makes for a better hearing, not a worse one. I don’t want to spend 90% of my argument on Issue #1, which I think is the pivotal one, only to discover after the fact that the judge thinks I’ve got a slam-dunk on Issue #1, but has real concerns about Issue #2, which I thought was a minor point.
This is long enough, and I think I’m starting to repeat myself, so time to stop.