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.
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