Lawyers must call male runners 'trans females' in athletics lawsuit

CNA Staff, May 11, 2020 / 14:00 pm

Attorneys are calling for a federal judge to recuse himself from a transgender sports case, after the judge instructed that they use terminology for gender identity and not biological sex.

The Title IX case in Connecticut was brought by three female high school track athletes against the Connecticut Interscholastic Athletic Conference (CIAC) over a policy of allowing athletes to compete in sports based on their self-described gender identity, not their biological sex.

After males identifying themselves as female began competing in women's track events in the state, the three athletes- Selina Soule of Glastonbury High School, senior Chelsea Mitchell of Canton High School, and sophomore Alanna Smith of Danbury High School-said they were unlawfully discriminated against.

In an April 16 conference call for the case, district court judge Robert Chatigny instructed attorneys for Alliance Defending Freedom-the group representing the female athletes-to refer to the males identifying as female as "transgender females," rather than as "males," National Review reported on Monday.

"Referring to these individuals as 'transgender females' is consistent with science, common practice and perhaps human decency," the judge said. 

Chatigny said that referring to the biologically male athletes as "males" is "not accurate" and  "needlessly provocative."  

When an ADF attorney responded on the call that by referring to them as "males," they were simply complying with human "physiology," the judge said that terminology was "unfortunate." If the attorneys persisted in doing so, he said, "maybe we'll need to do something."

National Review reported Monday that ADF attorneys filed a motion for Chatigyny to recuse himself on May 9, calling his order "legally unprecedented" and saying it showed his inability to hear the case with 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," National Review reported the motion as arguing.

The three girls had initially filed a Title IX complaint with the Department of Education last summer, before filing another complaint in the federal district court in February.

Since the state's new athletic policy was instituted in 2017, two males identifying as female have won 15 women's state championship titles, and one of the two has set 10 state records previously held by 10 different girls.

Their Title IX complaint stated that "biological differences" between boys and girls "matter for fair competition," and that federally-funded education activities cannot discriminate on basis of sex.

In March, Attorney General Bill Barr and several other Department of Justice officials co-signed a statement of interest in the case, saying that biological males who identify as women should not be classified as girls when it comes to athletics.

"The Connecticut Interscholastic Athletic Conference (CIAC), however, has adopted a policy that requires biological males to compete against biological females-despite the real physiological differences between the sexes-if the male is a transgender individual who publicly identifies with the female gender. CIAC claims that 'federal law' requires this state of affairs," said the statement of interest in March.  

"They are incorrect," the Justice Department said. "One of Title IX's core purposes is to ensure that women have an 'equal athletic opportunity' to participate in school athletic programs."

"Schools realize that purpose primarily by establishing separate athletic teams for men and women and by ensuring that those teams are on equal footing," wrote the DOJ.

"Because of the physiological differences between men and women, the existence of women's sports teams permits women to participate more fully in athletics than they otherwise could."