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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