Dazed and Recused? ADF Files for New Judge in Sports Case

May 12, 2020

No one in the country is playing sports right now -- but when they do, three brave high schoolers are trying to make sure the competitions they come back to are fair ones. But before the girls get a fair shake in track, they'll have to get one in court. And based on this judge, they'd better not hold their breath.

It's one of the biggest lawsuits in country: a trio of girls suing to stop biological boys from competing in their sports. But this case, which could hold the key to the future of Title IX, hasn't exactly gotten off to a smooth start. Before arguments even began, the judge assigned to the case -- Robert Chatigny -- made it clear whose side he's on.

Thanks to a phone transcript of a conference call, the attorneys at Alliance Defending Freedom (ADF) have pretty compelling evidence that Chatigny -- a Clinton appointee -- has already made up his mind. During a back-and-forth between the lawyers and judge, Chatigny insists, "What I'm saying is you must refer to them as 'transgender females' rather than as 'males.' Again, that's the more accurate terminology, and I think that it fully protects your client's legitimate interests. Referring to these individuals as 'transgender females' is consistent with science, common practice, and perhaps human decency. To refer to them as 'males,' period, is not accurate… So going forward, we will not refer to the proposed intervenors as 'males,' understood?"

Roger Brooks was stunned. After all, the entire point of the case is to prove that these boys are males -- physically, genetically, and every other way -- which is why it's unfair for them to compete as females. "If I use the term 'females' to describe those individuals -- and we've said in our opening brief, we're happy to use their preferred names, because names are not the point to the case. Gender identity is not the point of this case. The point of this case is physiology of bodies driven by chromosomes and the documented athletic advantage that comes from a male body, male hormones, and male puberty, in particular. So, Your Honor, I do have a concern that I am not adequately representing my client, and I'm not accurately representing their position in this case as it has to be argued before Your Honor and all the way up if I refer to these individuals as 'female,' because that's simply, when we're talking about physiology, that's not accurate, at least in the belief of my clients."

Well, the judge said, "[I]f you feel strongly… [and] and do not want to want to comply with my order, then that's unfortunate. But I'll give you some time to think about it, and you can let me know if it's a problem. If it is, gosh, maybe we'll need to do something. I don't want to bully you, but at the same time, I don't want you to be bullying anybody else. Maybe you might need to take an application to the Court of Appeals. I don't know. But I certainly don't want to put civility at risk in this case."

By using the boys' actual genetic identity we are putting "civility at risk" now? That's a pretty extreme position -- not to mention the judge's veiled threat about bullying. Even more shockingly, Chatigny had conceded that he thought biology was irrelevant to gender. And that science (no one is quite sure whose) elevates radical transgender ideology over basic human anatomy.

ADF, sensing the judge wasn't capable of neutrality, filed a motion for Chatigny to recuse himself. "A disinterested observer would reasonably believe that the Court's order and comments have destroyed the appearance of impartiality in this proceeding. That requires recusal. To be sure, the public debate over gender identity and sports is a heated and emotional one. This only increases the urgency that court preserve their role as the singular place in society where all can be heard and present facts before an impartial tribunal."

While that's being resolved, there is one view they don't have to worry about: the administration's. In March, the Justice Department filed a statement of interest on the girls' behalf, warning that "equal athletic opportunity" was at risk. In a pluralistic society like ours, Attorney General William Barr admitted, "we generally try to accommodate how individuals desire to live their lives -- up to the point where those desires impinge on the other people's rights. Allowing biological males to compete in all-female sports deprives women of the opportunity to participate fully and fairly in sports and is fundamentally unfair to female athletes."