Ninth Circuit Court of Appeals to Decide Who Qualifies as a “Woman” Athlete in Idaho

Is a particular person was a "woman"? For most of my life, everyone I knew would say that the question is answered by considering what kind of genitals that person had. For many people, the answer to that question is no longer answered purely by biology. And to make the discussion all-the-more confusing, transgender activists insist that "intersex" conditions are relevant to this discussion while others consider intersex a red herring.

Lindsay Hecox v Bradley Little [Governor of Idaho] will weigh in on this issue.  This appeal is pending in the Ninth Circuit (and perhaps headed to the United States Supreme Court). The context is transgender sports competition involving students in Idaho. A new Idaho statute is the focus of this lawsuit. The following excerpt is a description of Idaho law taken from the appellate brief of Idaho (the Defendant):

The statute at issue is the Fairness in Women’s Sports Act, Idaho Code §§ 33-6201 through -6206. The Act excludes members of the male sex from participating in sports designated for athletes of the female sex due to males’ physiological advantages, consistent with settled Ninth Circuit law . . . . The Act also permits male and co-ed teams, both of which are open to members of either sex. See Idaho Code § 33-6203.

To ensure the Act’s protections for female athletes, the Act provides that if a dispute arises over a student’s sex and eligibility for female sports, the student may establish female sex in one of three ways: through a high school health examination and consent form signed by a health care provider, which all student-athletes must submit; through another written statement signed by the student’s health care provider; or through a sports physical examination, in which the health care provider relies on one of three specified criteria to determine sex. See Idaho Code § 33-6203(3). See also ER 417-19 (Idaho High School Activities Association Health Examination and Consent Form); IHSAA Rule 13 (requiring high school athletes to submit form). The Act does not provide any sex-verification procedures for male or co-ed sports, because they are open to all, regardless of sex. In support of the bill, the Idaho Legislature made a number of findings based on court decisions, scholarly publications, and scientific studies recognizing the physiological advantages members of the male sex have over their female counterparts. Idaho Code § 33-6202(8)-(11). The Legislature also described the Act’s purpose:

Having separate sex-specific teams furthers efforts to promote sex equality. Sex-specific teams accomplish this by providing opportunities for female athletes to demonstrate their skill, strength, and athletic abilities while also providing them with opportunities to obtain recognition and accolades, college scholarships, and the numerous other long-term benefits that flow from success in athletic endeavors. Id. § 33-6202(12).

Plaintiffs describe the Idaho law at page 8ff of their brief.

A federal trial court granted an injunction, holding that the above law violates federal law. See the Idaho Brief at pp 6-7 and the Plaintiffs' brief, pp. 2-4 for more detail. This is a fascinating set of briefs for many reasons, one of them being that if you read both briefs, it is often hard to believe that they are describing the same lawsuit. That is because the crux of the case is whether one of the two plaintiffs, Lindsay Hecox, is more accurately described as male versus female. Consider Hecox's descriptions in the two briefs:

[From the Plaintiffs' Brief, p. 15: "Lindsay is a woman athlete living in Idaho who is transgender." Plaintiffs' brief includes a photo of Lindsay:

[From Defendant Idaho's Brief] "One plaintiff is Lindsay Hecox, who is transgender, and whose sex is male but whose gender identity is female."

Both sides agree that Lindsay is "transgender." As you can see, Plaintiffs claim she is "a woman" while Idaho states that the "sex is male."

I haven't yet read every word of every brief, but I have reviewed a lot of the filings.  In case anyone is interested in following along to see exactly what is being claimed as far as the "facts" or the law, you are welcome to click on the links below.  My focus is biology, but the Plaintiffs claim that biology does is not determinative.

Continue ReadingNinth Circuit Court of Appeals to Decide Who Qualifies as a “Woman” Athlete in Idaho

Republican Justice: blindness to conflicts of interest

The United States Supreme Court was barely able to hold that it's wrong to spend $3,000,000 electing a judge and than be able to have your newly purchased judge decide a big case in your favor. Decided June 8, 2009, Caperton v. A.T. Massey Coal Company Inc. was a 5-4 decision, with dissents by John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito. The defendant in the West Virginia case was a coal company that had been accused of fraud, and the jury had awarded $50 M in damages against defendant. It was A.T. Massey's Chairman and Chief Officer Don Blankenship who stepped in to buy the judgship for Brent Benjamin for $3 M after the verdict, knowing that this case would be considered by the West Virginia Supreme Court. Chief Justice John Roberts frets that he can't criticize this obviously wrong case of a $3,000,000 judge because there are less obvious cases that would be more difficult to decide. Think about it: Roberts is urging that the Court can't decide the easy cases because there are also some other cases that aren't so easy. Why not just hang up your robes and give it up? Tell me a situation where that isn't true. Roberts goes even further, suggesting that hammering the $3,000,000 judge will undermine our fair, independent, and impartial judiciary. Good grief. Scalia had previously shown that he is completely obtuse to the idea of a conflict of interest when he decided a case favoring his duck-hunting buddy, Dick Cheney.

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The long convoluted path to sanity, then celebration.

Today I am celebrating the inauguration of Barack Obama as President of the United States.   I know that most of you already think of Obama's inauguration as old news, even though it only happened a few short hours ago.   Nonetheless, I am still celebrating and I'm proudly linking to a…

Continue ReadingThe long convoluted path to sanity, then celebration.