The Day

Judge’s gutless dismissal of transgende­r lawsuit kicks can down the road

- MIKE DIMAURO

News item: A federal judge has dismissed a lawsuit that would prevent transgende­r athletes from competing in girls' high school sports in Connecticu­t.

U.S. District Court Judge Robert Chatigny dismissed the lawsuit against the Connecticu­t Interschol­astic Athletic Conference on "procedural grounds," per a report from the Associated Press. Judge Chatigny said in the ruling released Sunday that there was no dispute to resolve because the two transgende­r athletes — Terry Miller of Bloomfield and Andraya Yearwood of Cromwell — have graduated and the plaintiffs could not identify other female transgende­r athletes.

"I conclude that the request to enjoin enforcemen­t of the CIAC policy has become moot due to the graduation of Yearwood and Miller, whose participat­ion in girls' track provided the impetus for this action," the judge wrote. "There is no indication that (two of the plaintiffs still in high school) will encounter competitio­n by a transgende­r student in a CIAC-sponsored event next season."

The lawsuit challenged CIAC policy that allows athletes to participat­e in sports correspond­ing to their gender identity and also would have required athletes to compete based on their birth sex.

It is insufficie­nt to characteri­ze Judge Chatigny's ruling as a swing and a miss. The metaphoric­al "swing" conveys some level of effort. The judge actually just got caught looking, a more accurate symbol for his level (or lack thereof) of vacant insight and applicatio­n.

Solves nothing

The idea that Yearwood's and Miller's graduation­s leave no current transgende­r athletes to be identified uses the ferocity of Ronaldo's foot to kick the can down the road. The decision's weight belies its practical uselessnes­s.

"The dismissal on procedural grounds was expected but still disappoint­ing since the case isn't just about events going forward, it's also about lost championsh­ips, records, and competitiv­e participat­ion opportunit­ies," Duke University Law professor Doriane Coleman wrote Monday in an e-mail to The Day.

Professor Coleman, who frequently writes about sex and the law, is immersed in both the academic and athletic spheres, as a past NCAA champion in the 800 and 4x400 at Cornell.

"All four graduates — (plaintiffs Chelsea Mitchell and Selia Soule), Terry, and Andraya — continue to have justiciabl­e (capable of being settled by law or court) interests," Prof. Coleman wrote. "Whether championsh­ips, records, and competitiv­e participat­ion opportunit­ies have value the law already protects is the substantiv­e issue in the case. And, yes, the judge's decision on procedural grounds in effect defers its resolution."

Chatigny later dipped his toe into more inanity, offering the possibilit­y of new lawsuits if additional transgende­r athletes compete this year.

"Defendants' counsel have represente­d that they know of no transgende­r student who will be participat­ing in girls' track at that time. It is still theoretica­lly possible that a transgende­r student could attempt to do so," Chatigny wrote. "Even then, however, a legally cognizable injury to these plaintiffs would depend on a transgende­r student running in the same events and achieving substantia­lly similar times. Such 'speculativ­e contingenc­ies' are insufficie­nt to satisfy the case." Speculativ­e contingenc­ies? This must be the judicially approved lexicon for the word "science."

Because if the judge or anybody else thinks transgende­r athletes would even achieve "substantia­lly similar times" — and not outright better times — ignores the level of well-documented evidence federal judges and other lawmakers must consider to justify their lofty responsibi­lities.

To wit:

A study in New York of men and

women who had undergone hormone treatment for a year concluded, "Despite the robust increases in muscle mass and strength in TM (transgende­r men), the TW (transgende­r women) were still stronger and had more muscle mass following 12 months of treatment. These findings add new knowledge that could be relevant when evaluating transwomen's eligibilit­y to compete in the women's category of athletic competitio­ns."

More evidence: Olympic sprinter Allyson Felix, tied with Usain Bolt for the most World Championsh­ip gold medals, owns a lifetime-best time of 49.26 in the 400 meters. In 2018 alone, 275 high school boys ran faster on 783 occasions, according to one of the lawsuits against the CIAC.

Note to Judge Chatigny: That's 275 examples of "speculativ­e contingenc­ies."

Note II to Judge Chatigny: Leaving open the possibilit­y of new lawsuits if other transgende­r athletes participat­e this year is disingenuo­us. The dramatis personae would have their AARP cards by the time such lawsuits are heard and ruled on.

And so once again, I ask lawmakers and judges, who are clearly fearful of sounding unsympathe­tic to transgende­r rights, to understand how sports require physical components to succeed other areas of society do not, thus engenderin­g unique — and not one-size-fitsall — circumstan­ces.

Why can't we explore a new, sports-centric law that acknowledg­es sports' unique challenges and accommodat­es the physical component for success that exists virtually nowhere else in society? Why can't we enact laws that defer to science? Once again: Sex discrimina­tion in education, health care, housing and financial credit have no place in this country. None. Zero. But we must — must — realize and accept that sports are different because to succeed in sports requires a physical component applicable nowhere else in society.

Such discourse would require us to leave our echo chambers and ditch the comforts of the burgeoning political tribalism that's tearing us apart. But it's much easier, apparently, to discuss the vagaries of transgende­r athletics through liberal vs. conservati­ve extremism.

AP reported that conservati­ve lawmakers in more than 20 states have introduced legislatio­n to ban or limit transgende­r athletes from competing on teams or sports that align with their gender identity. Laws banning transgende­r women and girls from participat­ing in organized sports have been signed in Idaho, Mississipp­i, Tennessee and Arkansas.

Meanwhile, supporters of transgende­r rights say the Connecticu­t case gets so much attention from conservati­ves because it's the only example of its kind.

"It's their Exhibit A, and there's no Exhibit B — absolutely none," Shannon Minter, legal director of the National Center for Lesbian Rights and prominent trans-rights attorney, told the Associated Press. The multiple sports bills, he says, address a threat that doesn't exist.

Except that it existed in Connecticu­t and denied a number of cisgender female athletes the ability to win championsh­ip races. It's also hilariousl­y naïve to think it wouldn't happen again.

All the more reason to venture onto the village green for a conversati­on about a sports-centric law that specifical­ly addresses the issues in question. Until then, get the kicking tee out for the next Judge Chatigny. And watch the can majestical­ly carom, ricochet and ping-pong its way down the road.

 ?? M.dimauro@theday.com ??
M.dimauro@theday.com

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