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

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.

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-fits-all — 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.

This is the opinion of Day sports columnist Mike DiMauro


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