Ask a Trans Lawyer: Trans Women in Sport
Assigned Media interviews former GenderPAC lawyer, Dana Priesing, discussing anti-trans lawsuits and trans women in women’s sports.
by Riki Wilchins
As attacks on trans rights have increasingly moved from the legislature to the courtroom, encompassing dozens of state and federal cases, most non-lawyers have little understanding of the legal nuances involved, even though it’s our rights and lives that are at stake. News reports often gloss over the details or sometimes even get them wrong. Here, Assigned Media is featuring Riki Wilchins in conversation with Georgetown-trained lawyer Dana Priesing (who once headed GenderPAC’s Congressional work), to shed light on the arguments, stakes, and legal strategies involved in key anti-trans lawsuits.
Dana Priesing: Alliance defending Freedom filed a complaint a few days ago before the U.S. District Court for the District of Minnesota, Female Athletes United v. Keith Ellison et al, which at first glance might seem to be about softball pitchers. The complaint also describes a cis girl being hit by a pitch—a common occurrence—but in this case “the speed and strength of the pitch made the pain more intense than she has felt at other times getting hit by a pitch thrown by a |cisgender| girl…E.P. had never experienced pain like this.”
ADF’s contention is that Minnesota's human rights law—which allows trans girls—is in violation of Title IX by allowing trans women to compete in women's sports. ADF’s position basically is that if one is not an XX female, one may not compete fairly and lawfully under Title IX against cisgender females, even if one's physical characteristics fall within the bell curve of females overall.
Riki Wilchins for Assigned Media: So even if you’re a small, weak, unathletic trans girl and every cis girl you've ever met beats you at every sport, it’s irrelevant: ADF’s position here seems to me to have subtly upped the stakes in the argument against trans girls in school sports, saying it’s independent of whether they’re factually better, stronger, and fast—which was the argument in the past. Here they’re arguing that trans girls are de facto males and thus ineligible even if all trans girls are complete weaklings.
But then they introduce this scaremongering example you mentioned with the pitcher, and the suit also says that trans girls are "bigger, stronger, and taller" and have “significant advantages in pitching, hitting, and running.” So it seems to me these two arguments seem to be in tension with one another.
DP: The entire campaign of the right around this issue relies on creating a stereotype in the hearers’ mind that the trans girl in question is bigger than any cis woman could be and stronger than any cis woman could possibly be. But I think the reality is that most, if not all, of the trans women you might find trying to compete in women's sports fit somewhere on the bell curve of the physical characteristics of cis women as a whole, which also includes Brittney Griner and Stefanie Dolson and Breanna Stewart who are all strong cis females with large wingspans and large bodies.
AM: And yet as you point out, in this ADF’s complaint this is technically irrelevant, since even if the pitcher weighed 70 lbs soaking wet and after being hit with the pitch E.P. charged the mound and beat her to a pulp, they’re saying only XX females can play female sports. For ADF it’s not girls’ softball, it's cis girls’ softball.
DP: Yeah, that's right. And there's two other contentions ADF makes for which it will be interesting to see the proof as this case goes on if they provide any. First, ADF alleges that even as young as 6, kids who are XY outperform kids who are XX physically. And second, even if XY kids take puberty blockers, their physical advantages persist. I’d really like to see the evidence they introduce to try to back that allegation up.
AM: Yeah, that’s pretty ridiculous. To begin with, on average XX kids begin puberty earlier—as early as 7—and are taller than XY kids until around age 14. On average XX individuals hit their growth spurt about 2 years earlier than XY kids, assuming the latter don’t take blockers and/or exogenous hormones. So I don’t think they can back that up. Then again, ADF has created an enormous pseudoscience complex that can probably churn out convincing-looking disinformation to prove almost anything.
Did ADF’s complaint argue this particular transgender girl, who was so overwhelming and strong, had undergone a male puberty? Minnesota's a pretty blue state and as far as we know, she may have been on blockers since she hit Tanner stage one. That would account for the weird and gratuitous “age 6” argument.
DP: Yeah. ADF doesn’t go into the facts about the “males” about whose presence they complain. The facts presented focus on the cis players; the trans players are ciphers, simply termed “males.”
AM: You know, it sounds to me like they're trying to cover all their bases in making every contrary argument they can, even if some don't ultimately hold water and some contradict others.
DP: Yeah, it's called notice pleading—which is when you put the defendant you’re suing on notice of the elements of your claim and the asserted factual support for them. For notice pleading, ADF doesn’t need to provide the detailed proof they would at trial.
AM: They seem to me like they've now amplified their argument. So now even if you've undergone a thoroughly female puberty, it doesn't make any difference—you shouldn't be allowed to play girls’ sports. They’re anticipating the counter arguments that might be raised in a blue state like Minnesota. For ADF, apparently there are biological differences that track all the way back to the womb, in which they’ve studied fraternal twins and the male fetus outperforms female fetus, probably kicking her with a speed and strength she’d never felt in utero.
DP: Yeah. The underlying notion here is that no XX person can outperform an XY person. Therefore, the mere presence of a non XX person is unfair, which is kind of an absurd statement. But that's their position.
AM: It seems to me their strongest argument is the most basic one: the argument that it's girls sports and so anyone who is not a “biological girl” shouldn’t be allowed to play it. To a non-lawyer like me, everything else seems like window dressing.
DP: But I don't understand how “biological girls” would work either.
AM: I know: no one is taking cheek swabs on all these players to determine their chromosomal sex before they take the field.
DP: Well, maybe that's one end-result of all this is that everyone has to submit to examinations before they're allowed to play. As happened in women's Olympic sports, where some athletes got very surprised to learn what their chromosomal makeup was. It’s a purity argument they're making which isn't surprising from what is basically a patriarchal organization.
AM: I’d gently disagree with you. I don't think it's a purity argument by a patriarchal organization: I think it's a Biblical argument about gender advanced by a white Christian nationalist organization. I think we fail to underscore that this is not a political war but a religious war being waged on transgender people over a scriptural interpretation of what sex and the body mean.
DP: Okay. I'm fine with that. I think that's a semantic difference. And I'll concede that.
AM: Going back to your argument, since public schools sure aren’t set up to do chromosomal tests, we’d end up right back with genital inspections, which is morally disgusting.
AM: Erin Reed’s fear about this lawsuit is that ADF is using it as a template in starting with Minnesota, one of the more progressive states, and then they plan to work their way through the other blue states by weaponizing Title IX by interpreting it as not permitting discrimination against trans girls, but mandating it.
DP: Yes, I think that's ADF’s position. The good news is that they’re taking a scientifically ignorant position. But the bad news is, it's a position that is consistent with the executive orders that the administration has issued and the stances that the Department of Justice and Department of Education are taking. So bad news is I think ADF wins here because what they're doing is consistent with the current US government policy and statutory interpretation. And I don't see who is currently in a position of power who is going to advance and prevail on the opposing argument assuming this goes before the Supreme Court.
AM: So do you think we're hitting a United Kingdom moment where our Supreme Court goes on record saying only cis girls can be considered girls for legal purposes under the law.
DP: I think that could be a possible outcome. But the Supreme Court tends to shy away from getting really scientific, so I wouldn't be surprised to see them dance around this in some way while coming to the same result that trans women can't participate in women's sports.
AM: In essence then mandating anti-trans discrimination. That would be pretty awful. You know, trans boys have been pretty absent in this whole ongoing legal fight around the country. I do wonder how they’re going to react when a trans boy decides to go out for the girls’ softball or soccer team, or simply an XX nonbinary person, particularly if they’ve been on testosterone.
DP: The Right always is surprised to learn that transmascs exist. Perhaps if that happens, we’ll see parsing of testosterone levels in XX females, as a means of exclusion. All of this to protect an idealized fragile cis player.
I'm looking forward to the Attorney General of Minnesota's response to ADF and what legal grounds he advances for the policies of the state and how they square with current law. We should see that in 30 or 60 days. You remember what Trump did with the state of Maine where he tried to force them to discriminate against trans girls and Governor Mills said, No, we're going to comply with the law. So Trump tried to take away their federal education funding and she said, Go ahead. We're conforming with the law and it doesn’t mandate discrimination against trans girls. We’ll see you in court.
Although she never made clear if she meant she believed Maine was in compliance with federal law or current Supreme Court precedent or Maine state law. But Maine sued and said, Give us our grant funding. You can't withhold it over this dispute. And a federal court agreed, saying that Maine was likely to win that particular fight. And the funds were released.
But there’s another federal lawsuit still pending against Maine for non-compliance with the administration's directives about sports. And that lawsuit is kind of analogous to what ADF is doing here. So we'll have to see what happens. But ADF is not alone in advancing this position. We will have to wait to see the answers filed in these cases to really understand what the terrain of this dispute will be.
AM: Thank you.
Riki Wilchins writes on trans theory and politics at: www.medium.com\@rikiwilchins. Her two last books are: BAD INK: How the NYTimes SOLD OUT Transgender Teens, and Healing the Broken Places: Transgender People Speak Out About Addiction & Recovery. She can be reached at TransTeensMatter@gmail.com.