Three female high school track athletes are suing the Connecticut Interscholastic Athletic Conference (CIAC) over unfair rules that allow biological males who identify as female to compete in women’s sports. Last month, a district court judge barred the girls’ lawyers from referring to the biological males as “males,” insisting that the lawyers call them “transgender females.” He threatened to retaliate if they refuse to do so. This effective gag order may undermine their case, and it certainly shows bias against their underlying argument. Therefore, the lawyers moved for the judge to recuse himself.
“The Court has now reprimanded Plaintiffs’ counsel and prohibited Plaintiffs from referring to those individuals as ‘male athletes’ because—in the Court’s view— alluding to an individual of the male sex as male is contrary to science, ‘bullying,’ and violates ‘human decency’ if that individual claims a female gender identity,” attorneys Roger Brooks, Kristen Waggoner, and Howard M. Wood III wrote in a motion filed Friday and provided to PJ Media. “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.”
They asked District Court Judge Robert Chatigny to recuse himself from the case, arguing that his order “and comments during the hearing would leave an impartial observer gravely concerned that the Court has prejudged the matter, rejected core aspects of Plaintiffs’ case before hearing the evidence and legal arguments, and assumed the role of advocate for the defendants, all to the detriment of Selina Soule, Chelsea Mitchell, Alanna Smith, and Ashley Nicoletti.”
What, exactly, did Chatigny say that would require him to recuse himself? Here are his remarks to Roger Brooks during an April 16 hearing, via a transcript provided to PJ Media:
Let me raise a point that undoubtedly will cause some consternation for you, Mr. Brooks, and your colleagues, but I exercise my prerogative as the presiding judge in this instance and I hope you will forgive me.
I don’t think we should be referring to the proposed intervenors as “male athletes.” I understand that you prefer to use those words, but they’re very provocative, and I think needlessly so. 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?
Brooks did indeed express consternation at this order.
“The entire focus of the case has to do with the fact that male bodies have a physiological advantage over female bodies that gives them an unfair advantage,” he replied. “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,” Brooks explained. He insisted that referring to the males as “transgender females” would do his clients a disservice by “not accurately represented their position in this case” and it would be “not accurate” because they lack female physiology.
Chatigny was undeterred [Emphasis added]:
I’m not asking you to refer to these individuals as “females.” I know that you don’t want to do so. 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; and, for me, civility is a very important value, especially in litigation.
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. Quite the opposite. My goals for this case include, very importantly, the goal of maintaining civil discourse, respectful, humane, intelligent, civil discourse in the course of the case. Nothing more, nothing less.
Despite Chatigny’s high-minded rhetoric about “civility” and “decency” and making sure lawyers do not “bully” anyone, his effective gag order involves demonizing the plain biological fact that the boys who want to race against girls in high school sports are male. The judge was indeed bullying the high school girls in the case, by hamstringing their lawyers from making the cogent case that the CIAC’s rules discriminate against biological females.
By insisting that using the term “male” to refer to people with XY chromosomes who experienced more testosterone from the womb onward and who went through male puberty is “not accurate,” Chatigny not only denied basic biology but he also took sides in the case, undermining the girls’ central argument.
To be fair, the judge later agreed to allow the girls’ lawyers to call the male athletes “transgender athletes,” and he did not gag them from “discussing, as need be to make argument, the fact that they have male bodies, and at least in one case, don’t deny that they went through male puberty.”
However, Chatigny’s insistence that the use of the term “male” is inaccurate, “needlessly provocative,” “bullying,” and perhaps in violation of “human decency” is beyond the pale. His repeated threat that it would be “unfortunate” if the girls’ lawyers disagreed and that “maybe we’ll need to do something” if they don’t shut up about the whole “male” thing is particularly terrifying.
This judge has dismissed the key argument in the case as offensive, attempted to silence the girls’ lawyers, and threatened them if they do not comply. Anyone who is rightly concerned about the unfairness of allowing boys to compete in women’s sports should be horrified — and even transgender advocates should be aghast at this miscarriage of impartial justice.
Follow Tyler O’Neil, the author of this article, on Twitter at @Tyler2ONeil.