A Matter of Decency
Anti-transgender proponents add insult to injury as they try to litigate us away
Transgender people have always existed, but it’s only recently that society has made any sort of room for them. Like everyone, transgender people want to live their lives. This includes doing things like playing sports.
But that hasn’t sat well with anti-trans groups, particularly when it comes to trans girls. Groups like the Alliance Defending Freedom, the Federal Government, and recently the Idaho State Legislature, don’t want trans girls playing with cis girls. On the surface, they claim to be protecting women’s rights to a level playing field. They argue that including transgender girls in girls’ sports violates Title IX of the Education Amendments Act of 1972 — a federal law which holds that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
But a closer look at filings and legislation reveals these groups’ real agenda: define trans people out of existence. To them, there are no transgender girls/women. There are boys/men who dress as girls/women. These groups don’t miss an opportunity to misgender us whenever they can. By doing so, they check human decency at the door.
In April, Federal Judge Robert Chatigny called one group out for this behavior. He asked attorneys to stop referring to two transgender girls as “males.” A few weeks later, those attorneys asked for the judge’s recusal arguing that he had left the “ineradicable impression that the Court has prejudged matters at the very center of Plaintiffs’ case.”
The case at issue (Soule v. Connecticut Association of Schools, Inc.) involves three cisgender track athletes who allege that the Connecticut Interscholastic Athletic Conference (CIAC) violated their Title IX rights by adopting a “new policy that is permitting boys who are male in every biological respect to compete in girls’ athletic competitions if they claim a female gender identity [footnote omitted].”
(A note about terminology: the two transgender athletes at issue here identify as girls. I refer to them as “trans girls” if I need to delineate them from “cis girls.” Even though this case revolves around them, they are not defendants, yet they are seeking to become such. Therefore, I occasionally refer to them as “intervenors.” “Intervenors are organizations or persons who want to participate in a proceeding because they believe the proceeding, or its outcome, may affect their rights or duties.” See here.)
As the teleconference transcript reveals, the judge wasn’t even asking plaintiffs’ lawyers to refer to the two girls as female: “I’m not asking you to refer to these individuals as ‘females.’ I know that you don’t want to do so.” Rather, he was telling them that they “must refer to them as ‘transgender females’ rather than as ‘males.’”
Why?
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; and, for me, civility is a very important value, especially in litigation.
Commentators pounced on the judge. One particular piece published in Newsweek caught my eye. On the surface, Abigail Shrier, a columnist for The Wall Street Journal,” asks a seemingly important question: “Who Has the Right to Be Called a Girl?” But her piece reads like a greatest hits playlist from the anti-trans discography complete with all the usual dog-whistling. Anti-trans proponents increasingly use sophisticated tactics to justify their voice as one that belongs at the rational discourse table, rather than the small, intolerant, hate-mongering, fringe table set up in the other room. Theirs is a voice premised on the belief that transgender people do not exist, and they are hoping for a legal precedent that says so.
I respond to her claims as I explore whether it’s possible to simultaneously maintain civility and question whether trans girls have a physical advantage in sports over cis girls.
Affirming transgender existence and rights should be the starting point
Ms. Shrier wrote that Judge Chatigny, “has already determined that these biological boys are some type of girl” and she, therefore, called for him to recuse himself for such a “wildly prejudicial admission.”
It might surprise people to find out that Judge Chatigny was not actually determining that. In fact, he first qualified their “girl status” with the word “transgender” as in “transgender female.” As any transgender person can attest to, the word “transgender” is often code that signals “not really a…” When attorneys pushed back against “transgender female,” asking whether they could instead use the term “transgender athletes,” the judge agreed.
To be clear: These calls for Judge Chatigny to recuse himself are because he asked plaintiffs’ lawyers to refer to the two proposed intervenors as “transgender athletes” rather than as “males.” Sure, “transgender athletes” is a step up from the dehumanizing “male” moniker, but it’s a far cry from “girl.” At the heart of Judge Chatigny’s order was his goal that litigants “maintain[] civil discourse, respectful, humane, intelligent, civil discourse.” Is that really too much to ask?
For anti-trans advocates, yes it is. This is because to those groups, it’s imperative that transgender girls be seen as “boys.” Ms. Shrier deigns to “consider it courteous to refer to transgender friends, colleagues and neighbors by the name and pronouns they choose” when at “the local Starbucks,” but she argues that because a court of law is “dedicated to the pursuit of justice,” such courteousness is no longer required. Therefore, like the plaintiffs’ lawyers, she insists on repeatedly insulting the two trans girls whom she derisively describes as “biological males [who] dress as girls and wish to be treated as such.”
If you think that the plaintiffs’ lawyers are just representing their clients’ feelings about these runners, think again. At least one plaintiff has “no problem with [the two transgender athletes] wanting to be a girl.” Her mother doesn’t want transgender athletes banned; rather, she wants transgender girls to undergo hormone therapy before participating in sports consistent with their gender. According to their lawyers, both transgender girls receive hormone therapy to treat their gender dysphoria, resulting in “testosterone levels, circulating in their bodies that are typical for non-transgender girls.”
How about the coach? “There’s never been an issue in our town,” he told The Boston Globe. “These kids, many of them have known [one of the trans girls] since elementary school. They know who she is. So when she signed up, the attitude was: ‘OK, [she] is running with the girl’s team. Here we go.’” (Note: I replaced the names in the preceding quotes to try and protect whatever privacy these girls, both cisgender and transgender, have left.)
It’s not just cis people who claim that some transgender athletes might have physiological advantages over cisgender ones. Joanna Harper, who is a transgender runner from Portland, Oregon and also studies transgender athletes, commented in The Boston Globe, “The gender identity doesn’t matter, it’s the testosterone levels.” She argued, “Trans girls should have the right to compete in sports. But cisgender girls should have the right to compete and succeed, too. How do you balance that? That’s the question.”
See? That wasn’t so hard. One can advocate for fairness in competition without demeaning trans people. That’s all Judge Chatigny was saying. It’s possible for lawyers to refer to the proposed intervenors as “girls” or “women” or “females” without, as the judge put it, “surrender[ing] any legitimate interest.”
Trans people are not impersonating women to commit crimes
Ms. Shrier argues that since a court would never refer to a defendant charged with impersonating a police officer as “Officer” simply because he claimed to be one, it should therefore follow suit with the intervenors here. It’s tempting to just roll one’s eyes at this analogy because, after all, impersonating a police officer is against the law, whereas being trans is not. And transgender girls don’t just “claim” to be girls — rather, they suffer from gender dysphoria (see discussion below).
On the surface, this analogy might seem merely inapt. However, this is an example of anti-trans dog-whistling. Perpetrators who impersonate law enforcement often do so to commit crimes, including robbery, rape and homicide. This analogy signals the common anti-trans myth that trans women are cis male predators who impersonate women to commit violent sexual crimes against cis women. In reality, trans women are often the victims of such crimes (see discussion below).
It’s hard not to see this analogy as an intentional and coded message: If you let a couple of trans girls run with cis girls, you will be destroying (cisgender) women’s rights and threatening their safety. This brings me to my next point.
This case is not “determining the future of women’s athletics — indeed, women’s rights in general”
Neither is at issue in this case. Let’s look at what the people involved in the litigation say. First, the judge:
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.
Then there’s Roger G. Brooks, an Alliance Defending Freedom attorney representing the plaintiffs, who characterizes it this way:
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.
This isn’t a case about “women’s rights in general.” Rather, it asks whether the CIAC has violated plaintiffs’ Title IX rights by allowing transgender girls to compete with cisgender ones. Yet, central to the anti-trans platform is the premise that giving trans women an inch — even acknowledging that, to use Ms. Shrier’s words, they are “some type of girl” — will open the floodgates and redefine women out of existence. In this way, anti-trans groups, like many groups preaching intolerance, use fear to motivate their followers.
The world is not going to end because trans kids participate in sports. There is no flood of transgender people — the prevalence of transgender identities in the US ranges from 0.3–0.6%. (See here and here.) Not all transgender people transition. Certainly, not all of them play gender-segregated sports.
In fact, transgender athletes often don’t participate in team sports because of, well, things like this. A recent publication in the Journal of Physical Activity and Health reported results of a survey of 212 Spanish transgender persons assessing participation in physical activity and sport before and after their gender disclosure. They found that:
- trans persons preferred individual sports — the top 3 reported activities were jogging, walking, and bodybuilding;
- 14.5% of them stopped activity after gender disclosure;
- participation in non-organized sports was higher than organized sports and was greater after disclosure because most gave up organized sports.
The sky is not going to fall because trans children and adults participate in sports. Women aren’t going to be defined out of existence.
Trans girls are not “biological boys”
Ms. Shrier refers to the intervenors as some permutation of “biological boys” eleven times in an approximately 950-word essay. People above a certain age learned in ninth-grade biology that two X chromosomes equal a girl and one X and one Y equals a boy. But science, unlike peoples’ opinions, is mutable. It evolves. And biology goes beyond the ninth grade.
Others have exquisitely toppled the scientific fallacy on which anti-trans sentiments rest — that “sex” is an immutable categorization determined by some undefined group of characteristics at birth that might include chromosomal makeup, genitalia and who knows what else. (See Kim Hipwell’s phenomenally thorough discourse Where Biological Meets Illogical: Transphobic Semantics for a complete breakdown of the logical fallacies that abound in anti-trans arguments. See also Stop Using Phony Science to Justify Transphobia and Sex isn’t binary, and we should stop acting like it is for very good discussions as to why “scientific” anti-trans arguments are a merely a house of cards.)
Even the plaintiffs cannot get their definition of “male” straight. In their original complaint, they asked for:
An injunction prohibiting all Defendants, in interscholastic athletic competitions sponsored, organized, or participated in by the Defendants or any of them, from permitting males — individuals with an XY genotype — from participating in events that are designated for girls, women, or females
Perhaps because this definition would actually exclude cisgender women with XY genotypes, such as those with Androgen Insensitivity Syndrome and Swyer Syndrome (or Pure Gonadal Dysgenesis), from participating in girls’ sports as well, the plaintiffs’ amended complaint now reads:
An injunction prohibiting all Defendants, in interscholastic athletic competitions sponsored, organized, or participated in by the Defendants or any of them, from permitting males from participating in events that are designated for girls, women, or females
This slip up highlights the danger that comes from trying to define a “true” girl. Go ahead and try to define one using any combination of the following and see if some cisgender girls are not excluded from it: chromosomal makeup, genitalia, hormone levels, primary and secondary sex characteristics, gender assigned at birth, style of dress, sexuality, height, BMI, muscle mass, manner of speech. As the plaintiffs themselves demonstrate, the only one that can’t be changed — chromosomal makeup — doesn’t even do the trick. Nor should it — sex chromosomal genotype is but one of the myriad factors that define “sex” and “gender.”
Plaintiffs’ new definition, which prohibits “males,” is devious. For it to actually prohibit transgender girls from participating in gender-congruent sports, they would need to be defined as “males,” yet they don’t even provide a definition of male! That’s the ultimate outcome anti-trans groups crave.
Gender dysphoria is real
Gender dysphoria, Ms. Shrier writes, “doesn’t lend itself to empirical proof” and “has no directly observable diagnostic criteria.” Her back-handed concession that “[t]his does not make it less real” might as well read, “I’m not saying, I’m just saying…”
Gender dysphoria might not have a blood test, but it is not a self-diagnosis either, and transgender people often suffer tremendously as a result of it. Go watch the controversial film Girl and note the percentage of the film that involves the protagonist silently staring at herself in the mirror. I have yet to meet a trans woman who doesn’t know exactly what she’s thinking. (Warning, the film’s end is very disturbing and triggering).
The suggestion that anybody would feign being transgender and thereby subject themselves to anti-trans bigotry and the mental health consequences of openly living as trans just to excel at a sport minimizes the struggles transgender people face. The Report of the 2015 U.S. Transgender Survey from National Center for Transgender Equality found that:
- transgender respondents who were out or perceived as transgender while in school (K–12) experienced some form of mistreatment, including being verbally harassed (54%), physically attacked (24%), and sexually assaulted (13%) because they were transgender;
- in the year prior to completing the survey, 46% of respondents were verbally harassed and 9% were physically attacked because of being transgender;
- during that same time period, 10% of respondents were sexually assaulted, and nearly half (47%) reported being sexually assaulted at some point in their lifetime;
- 39% of respondents experienced serious psychological distress in the month prior to completing the survey, compared with only 5% of the U.S. population;
- 40% of respondents have attempted suicide in their lifetime — nearly nine times the attempted suicide rate in the U.S. population (4.6%);
- transgender people of color experience deeper and broader patterns of discrimination than white respondents and the U.S. population in general.
Through their ACLU lawyers, the two intervenors commented on Twitter in February. One said:
There is no shortage of discrimination that I face as a young Black woman who is transgender.
And the other commented,
There is a long history of excluding Black girls from sports and policing our bodies.
It is remarkable what transgender people go through just to be themselves. Trans women don’t just don a dress and tell the world they’re a woman. Many suffer for years before transitioning, and life isn’t all roses for them on the other side either.
No one argues that cisgender girls don’t have the right to call themselves a girl simply because they had the fortune of being assigned their correct gender at birth. But when transgender people overcome staggering stigmatization, trauma and mental health challenges and dare to just live their lives, cisgender gatekeepers come out and swat them away. Cisgender people are not bouncers, and gender is not a nightclub to which they can deny entrance. To answer Ms. Shrier’s question: Trans girls have earned the right to call themselves a girl. Cisgender girls were granted that at birth.
Male puberty does not create an “unbridgeable” advantage
In her piece, Ms. Shrier argues that “The physical advantages conferred during male puberty are massive and unbridgeable.” “Unbridgeable” is finite. It signals an irremediable situation.
Can someone please explain where one of the cisgender plaintiffs in this case found a bridge to beat one of the trans intervenors not once but twice in one week? Plaintiffs’ attorneys shapeshifted quickly, arguing that the trans girl had nonetheless deprived another cis girl of a second-place finish. I mean, if trans girls finish dead last in every heat, will it be ok for them to participate then? It is ludicrous to argue that cisgender girls can’t possibly beat transgender girls, while that exact thing happened. At the very least, it casts doubt that the disadvantage is “unbridgeable.”
Why don’t we ask former and current MLB players whether their male anatomy conferred an “unbridgeable” advantage when facing softball pitcher Jennie Finch. She struck out Albert Puljos (“I never want to experience that again”), Mike Piazza and Brian Giles (“I never touched a pitch…Her fastball was the fastest thing I’ve ever seen from that distance. It rises and cuts at the same time.”) And here’s University of Wisconsin coach Kirsten Verdun striking out Vinny Castilla.
Presumably, none of these MLB players were on hormone blockers and all went through puberty, yet they were still completely outmatched. This is because “male anatomy” and testosterone are not sufficient for athletic success even among girls. Suggesting that they are demeans female athletes.
Finally, here’s a story about a (presumably) cisgender female who was dumped by her (equally presumably) cisgender boyfriend because she deadlifted more than him — girls aren’t supposed to deadlift more than boys.
Athletes come in many different shapes and sizes. Different traits confer different advantages. Just as there is no “true” woman, there is no “true” athlete. Trying to define “true” people is a dangerous precedent, one which often precedes violence— history is littered with examples of this.
Conclusion
At the core of this case are five girls who just want to run. Two of them happen to be transgender. Transgender girls are not “boys.” They have the right to call themselves girls and have earned all the rights, privileges and disadvantages that come with being a girl. And they are protected under Title IX as well.
Misgendering transgender people is a form of bullying. It’s mean-spirited and doesn’t belong in civil discourse. Neither is it necessary to discuss apparent physical advantages trans girls might have. Groups that have concerns about the effects transgender acceptance might have on cis people should begin by acknowledging transgender people’s existence and rights, rather than maliciously misgendering them under the guise of “science” or “biology.” Maybe then they might get a seat at the main table where basic decency is the first course.
Anti-trans groups want to act as gatekeepers. They want to define what a “true” member of a gender group is but don’t provide an algorithm for doing so. If you don’t meet their hidden criteria, you’re not allowed entrance. Such veiled deliberation shouldn’t just scare transgender people. If groups can unilaterally deem transgender women not woman enough, what’s to say that certain cisgender women won’t be targeted as well? Underpinning anti-trans sentiment is a misogynistic belief that women must be a certain way.
That is patently false. There is no one right way to woman.
