Legal: Judge Forbids Lawyers In High School Runners’ Case From Calling Trans Athletes ‘Male,’ They Ask Him To Recuse

OPINION | This article contains commentary which reflects the author's opinion.

A legal case for whether or not biologically male, “transgender female” athletes can compete in high school women’s sports hinges entirely on whether or not the attorneys representing three female high school track athletes can argue the biological males have an unfair advantage in the sport.

“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 National Review reports.

But they just encountered a major problem: the presiding judge forbid the attorneys from calling the transgender athletes “males.”

According to a transcript obtained by the National Review, the attorneys were scolded by District Judge Robert Chatigny and are now requesting he recuse himself.

The transcript of the call shows Chatigny specifically tell the attorneys not to use the term “male” to describe the individuals:

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?

Roger Brooks, an ADF attorney leading the case, argued his whole case is dependent on how the individuals are represented and—if he cannot call them male—they would be given preferential treatment by the courts.

Brooks responded:

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.

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That was not enough to convince Chatigny, who said he would give Brooks some time to consider the order:

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.

So, Brooks formally filed a motion to argue Chatigyny’s order is “legally unprecedented” and impartially favors one of the legal parties.

“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,” Brooks said in the motion, via National Review. “To be sure, the public debate over gender identity and sports is a heated and emotional one. This only increases the urgency that court preserve their role as the singular place in society where all can be heard and present facts before an impartial tribunal.”