I’ve had plenty of occasion to observe that transgender legal claims sure make judges stupid. A Ninth Circuit decision on Monday (in Doe v. Horne) provides yet another illustration.
At issue in the case is an Arizona law that bars males at public schools (and at private schools that compete with public schools) from playing on girls’ or women’s sports teams. The panel ruled that the district court did not abuse its discretion in enjoining Arizona officials from enforcing the law against two boys who have not gone through puberty and who identify as female.
Given the Ninth Circuit’s unsound precedent in Hecox v. Little, the panel might well have been constrained to rule as it did. But that doesn’t mean that it had to utter its own idiocies.
It ought to be plain that the Arizona law draws a line based on sex, not on gender identity: Boys, irrespective of gender identity, may not take part in girls’ sports. But Judge Morgan Christen, the author of the panel opinion, repeatedly botches this elementary point:
- “[T]he ban turns entirely on a student’s transgender or cisgender status,” she asserts. No, it turns on a student’s male sex.
- “[T]here is simply no denying that a transgender sports ban discriminates based on transgender status,” she declares. Perhaps her own confused term “transgender sports ban” has discombobulated her. The Arizona law classifies—“discriminates,” if you wish—on the basis of a student’s male sex, not on transgender status.
Christen commits a somewhat more subtle confusion when she complains that the law “treats transgender women and girls less favorably than all other students” because all other students can “play on teams corresponding with their gender identities.” Christen states that the plaintiffs do not “challenge the existence of separate teams for girls and boys.” But when transgender individuals are involved, it is impossible to have teams simultaneously defined both by sex and by gender identity. So Christen’s complaint is really a disguised assertion that there is something constitutionally suspect about assigning males who identify as female to teams based on their sex rather than their gender identity.
Christen’s approach treats boys who identify as female more favorably than all other boys, as they could choose to play on boys’ teams and could also claim a supposed Equal Protection right to play on girls’ teams. (For males who have gone through puberty, the panel ruling doesn’t dictate that they would be successful in their claim, but they would have a claim that other boys wouldn’t, and I certainly wouldn’t be optimistic about how future Ninth Circuit panels would decide this claim)
A lesser but related point: Christen is also wrong that all students other than transgender students can “play on teams corresponding with their gender identities.” Christen somehow misses that non-binary students—those who identify as neither male nor female but rather as eunuchs, genderqueer, or any of 100 or so other gender identities—can’t play on teams that correspond with their gender identities.