Who Has the Right to Be Called a Girl? | Opinion

Attorneys representing three girls suing the Connecticut Interscholastic Athletic Conference for forcing them to compete with biological boys filed a motion asking the judge to recuse himself. Their motion came after the judge, Robert Chatigny of the U.S. district court, ordered the plaintiffs to stop referring to their biologically male competitors as "males" and instead to refer to them as "transgender females."

Plaintiffs Selina Soule, Chelsea Mitchell and Alanna Smith are no ordinary high school athletes. They are among the very fastest female runners in their state. They claim that Title IX requires athletic programs to provide equal athletic opportunities to both sexes. Since the biologically male high school runners competing against girls in Connecticut have consistently taken top spots at the girls' state finals, there are now fewer girls advancing to regional competitions. That means fewer girls are being scouted by top coaches and winning athletic scholarships.

The physical advantages conferred during male puberty are massive and unbridgeable, especially in sprinting and contests of strength. To take just one example cited in the complaint, the fastest female sprinter in the world is American runner Allyson Felix. Her lifetime best for the 400-meter run is remarkable—just 49.26 seconds. But based on 2018 data, nearly three hundred high school boys in the U.S. alone could beat it. When the two boy runners now besting Connecticut girls identified as male, they had no notable achievements in sprinting; now, identifying as female and competing against girls, they have taken first place in 13 out of 14 state championship events.

In daily life, many of us would consider it courteous to refer to transgender friends, colleagues and neighbors by the name and pronouns they choose. But a federal court case determining the future of women's athletics—indeed, women's rights in general—is not the local Starbucks. It is a domain dedicated to the pursuit of justice, and the case before it must be laid out with perfect clarity. Because the maleness of the boy competitors lies at the very heart of the plaintiffs' legal case, they refer in the pleadings to those biological boys as "males."

But on Monday, Judge Robert Chatigny admonished the plaintiffs' lawyers for referring to the biological male competitors as "males," calling that terminology "provocative" and "bullying." He opined that "civility is a very important value, especially in litigation." And he instructed the litigants that the term "transgender females" is not only "more accurate," but is also "consistent with science, common practice and perhaps human decency."

Judge Chatigny's claim that "transgender females" is more consistent with science warrants a closer look. The psychological condition that underlies it—gender dysphoria—has no directly observable diagnostic criteria. This does not make it less real (many psychological ailments have no directly observable diagnostic criteria), but it also doesn't lend itself to empirical proof. As an objective matter, the most one can claim about these biological males is that they dress as girls and wish to be treated as such—with all the rights and privileges that go along with it.

Stepping into the shoes of the defendant, Judge Chatigny informed the plaintiffs that referring to the biological male competitors as "transgender females" would not "surrender any legitimate interest or position." But this is wrong, of course. The case is not merely about whether forcing girls to compete against biological boys constitutes invidious discrimination. It is also about what, if any, of the rights and privileges reserved to women must be afforded to others merely on the basis of their saying so? One of these is the right to be recognized as a girl. Which is why it was highly prejudicial that the judge should already have given this right away.

To test this argument, imagine another case—one in which a defendant is charged with having impersonated a police officer. Imagine the judge in such a case instructed the prosecution to refer to the defendant as "Officer O'Malley," out of courtesy, merely because that's what the defendant claimed he was. The entire issue in dispute is whether the defendant was impersonating an officer—or whether he really was one and entitled to be treated as such. It isn't hard to see why such judicial instruction would prejudicially determine the legal outcome.

Female track and field athletes
Female track and field athletes Tim Clayton/Corbis via Getty Images

Indeed, Judge Chatigny informed the litigants: "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 in girls' events."

In Judge Chatigny's view, in other words, this is a case about one kind of girl excluding another kind of girl. That is a wildly prejudicial admission: Even before expert testimony is heard, Judge Chatigny has already determined that these biological boys are some type of girl. And despite the pleadings, Judge Chatigny has decided this is not even really a case about impermissible sex discrimination. It's a case about those who would exclude from their club the "wrong" kind of girl.

If the plaintiffs concede this, they will have surrendered significant ground. They'll have made the unwarranted admission that there are at least some girls who possess male biology. Once you grant that, the question becomes: Which rights and privileges belonging to girls with female biology are up for grabs by girls with male biology? In the mind of the judge, the answer could be all of them.

Either way, the judge has already indicated that this case is largely decided. Judge Chatigny ought to recuse himself for prejudice. If not, his statements should lay the basis for reversal.

Abigail Shrier is author of Irreversible Damage: The Transgender Craze Seducing Our Daughters, forthcoming in June.

The views expressed in this article are the writer's own.​​​​​