With the federal route closed under the Trump administration, transgender males seeking admission to women’s sports are turning to state courts. There, fuzzy and sometimes absurd definitions in state and local policies might still force sports organizations to deny the reality of male advantage and surrender competitive fairness and safety for female athletes.
Two trans-identifying male athletes are suing sporting event organizers after being told that they were not permitted to compete in the female category. One suit is in New York, and the other in New Jersey. The same lawyer, Susan Cirilli, is representing both plaintiffs. Cirilli did not respond to my request for comment.
The New Jersey Lawsuit
In New Jersey, Sadie Schreiner is suing Princeton University, two of Princeton’s senior athletics administrators, and the timing and results company from the track meet in early May. Schreiner alleges that, despite registering for and checking in as present to compete in the women’s 200-meter race, he was not on the list of competitors posted shortly before the race.
Schreiner spoke with John Mack and Kimberly Keenan-Kirkpatrick, Princeton’s director of athletics and director of track and field operations, respectively. According to Schreiner’s suit, one of them (the filing does not specify), said, “I do not want to assume, but you are transgender” to explain why Schreiner was not in the women’s race. Keenan-Kirkpatrick then offered to organize a separate race for Schreiner, a consideration the suit describes as “a further biased response.”
“State anti-discrimination laws that protect people on the basis of their ‘gender identities’ are much stronger for male athletes who want to compete in female-only sports,” says lawyer and author Kara Dansky.
New Jersey’s Law Against Discrimination is the basis of Schreiner’s suit. The law prohibits discrimination because of “sex, [and] gender identity or expression,” amongst many other attributes.
The law’s definition of “gender identity or expression” is worse than circular: it’s a linguistic three-body problem. Not only does it use the phrase “gender identity or expression” in the course of defining the same phrase, but the law at no point defines “sex.” Yet it includes “sex assigned at birth” in the definition of “gender identity or expression.”
This renders completely hollow Schreiner’s offer to “to take any physical tests that would further demonstrate her [sic] gender.” First, there is no such test that would demonstrate, or reveal, or confirm gender. Even if there was, the NJLAD does not state how one proves his “gender identity or expression” for the purpose of enforcing the law.
If Schreiner took a physical test that would confirm sex, such as the cheek-swab test being implemented by track and field’s international governing body, in one sense that would settle everything. But under the NJLAD, the results of the cheek-swab test would be shouting into the vacuum: the law does not contemplate an objective verification of sex.
The New York Lawsuit
New York, the venue of the other case, similarly prohibits discrimination on the basis of sex and gender identity or expression, while defining the latter and not the former. But leave it to New York City to complete the job. The New York City Human Rights Law does not even include sex as a protected class, only gender.
Both the state and city laws are part of the lawsuit Cameron “Cammie” Woodman is bringing against the Tennis League Network; the owner of the Tennis League Network, Steve Chagnon; and the female player who played a match against Woodman, not knowing that she’d be playing a male, and subsequently alerted the league to his presence in the female division.
The female player knew she was dancing on the third rail when she emailed Chagnon: “I am aware how controversial this issue is right now and I am sorry to put this on your [sic] but I don’t think there’s a way around the fact that it’s unfair for me, or any other woman in this league, to play against a man under the pretense that he is a woman.”
Chagnon offered to move Woodman to a comparable level of play in the men’s division. Woodman rejected this, saying: “I am a transgender woman who has been medically transitioning for the past 4 years and can provide proof of this.”
Woodman must not have been familiar with the law: no such proof is necessary. Chagnon’s offer prompted one of the most surreal arguments in the sports genderwang compendium.
The Promotion-Relegation Sports System
Tennis has several ways to quantify a player’s ability. This helps players, leagues, and tournaments have competitive and rewarding matches. The Tennis League Network uses the National Tennis Rating Program, which goes from beginners at 1.5 to professionals at 7.0. The match that served up this lawsuit was in the 3.25 bracket.
The Tennis League Network’s rules allow the league to move players up or down the ratings brackets based on a player’s performance over a few matches. The bottom two to three teams in a league at the end of the season play the next season one league lower. They are replaced by the top teams in the league one level down, who are promoted into the higher league.
Woodman’s suit says the Tennis League Network discriminated against Woodman by violating their “Promotion-Relegation Rules” by attempting to move him to the men’s division after only one match. The Tennis League Network’s rules say nothing about moving a player from one sex-based division to the other as a result of performance. In my 13 years in the sports industry, I have never heard of a between-sex promotion-relegation scheme.
‘Promotion’ to the Men’s Competition
But pause to marvel at the misogyny in Woodman’s suit. Woodman and his attorney see it as a promotion to go from the female category to the male category. Logically, then, if a female player works hard enough, she, too, can be “promoted” to competing with men. Not incidentally, that is something female athletes who have lost to male athletes often hear: “Just train harder.”
It’s also another case of life imitating “The Simpsons.” When Homer is on a tropical island hiding from PBS, he calls home to set the new pecking order: “Bart, you’re the man of the house. Lisa, I’m promoting you to boy.”
Dansky thinks more cases like these will land on state dockets. “Notwithstanding the decisions out of the Fourth and Ninth Circuits that affirmed their rights to compete in female-only sports, these male athletes do not like their chances with the federal courts.” She noted a case where a Washington state spa accepted men with transgender genital surgery to its women’s services. A transgender man who retained his male genitals won two suits to force the spa to service him.
“People who are able to will simply leave states that have laws like this on the books,” Dansky said. “If states don’t want that to happen, they need to get rid of these outrageous ‘anti-discrimination’ laws that protect people on the basis of their opposite-sex ‘gender identities.’”
George M. Perry is a sports performance coach, sports businessman, and writer. Before going into the sports industry, he was a submarine warfare officer in the United States Navy and briefly attended law school.
