The ACLU Attacks a Key Civil Rights Law for Women and Girls

Because misogyny is woke now

The American Civil Liberties Union has completely lost the plot. That is apparent from reading the organization’s challenge to H.B. 500, Idaho’s new legislation protecting Title IX sports for women and girls. The ACLU filing, which you can read here, us a series of outright lies, knowing obfuscations, deliberate conflations, and absurd rationalizations. Beginning with the mantra “trans girls are girls,” then dismissing the biological reality of human sexual dimorphism with quotation marks, the plaintiffs argue that full-grown men should be allowed to dominate women’s sports. and denounce any objection as bigotry.

I am not exaggerating when I call the plaintiffs gaslighting liars. “Millions of student-athletes have competed in the NCAA since 2011,” they sniff, “with no reported examples of any disturbance to women’s sports as a result of transgender inclusion.” The assertion is false. We have photo and video evidence of “disturbances” already happening across America, including Idaho, making a mockery of core sporting values and key civil rights legislation.

For example, at the Big Sky Conference Championships in Idaho last year, transgender athlete June Eastwood went full Secretariat on the rest of the field. The ACLU would have you believe this person lacks unfair physiological advantages over their competitors because their personality is female.

While the legislation at issue is far from perfect — a perfect example of why I have no faith in Republican competence to fight back this tide of radical gender extremism — it is the very first such state law in America, and so it will help set the template for what promises to be a Supreme Court case one day. I say this not because I have some special foresight; I am not even a lawyer. However, lawyers watching this case tell me that the ACLU will probably win in the circuit and district courts of this particular jurisdiction. Furthermore, this will remain a live issue once the pandemic is over and sporting events resume. There is a nonzero chance that this case forms part of a constitutional precedent that effectively renders Title IX meaningless.

I am not just being a catastrophist. As enacted by Congress in 1972, federal law says that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX was not passed to repair an injustice of gender, but to create fair opportunities in sport for a biological sex class that has important competitive disadvantages. The protected class under the relevant section of Title IX is the female sex class. It excludes the male sex class. The ACLU would have us all pretend otherwise and defeat the entire purpose of having Title IX in the first place.

Sporting competition is about bodies, not identities. The ACLU argues that the law should not apply to the two different classes of human bodies anymore, but the two main classes of human gender instead. One wonders why they leave out libragenders, agenders, bigenders, bogogenders, and genderqueers? “Everyone has a gender identity. An individual’s gender identity is durable,” the ACLU says, and therefore unchangeable. Such genderfluid-exclusionary ideas! Why are they throwing multigenders under the bus?

And in fact the plaintiff’s brief struggles a bit due to the fundamental incoherence of “transgender” as a category. Neither of the plaintiffs in the case is intersex, for example, yet intersex people are once again held up here as a human shield for the trans political agenda. This appropriation is compounded with bad science. The ACLU greatly overstates the prevalence and plasticity of intersex conditions; 99.98 percent of human beings fall into one of two sex categories unambiguously, while the remainder fall into the same two sex categories ambiguously. It is all far less uncertain and imprecise than the plaintiffs pretend.

Curiously, the fiing re-litigates the intersectional story of intersex athlete María José Martínez-Patiño, but not intersectional intersex athlete Caster Semenya, who has been excluded from Olympic competition for having internal testes (and thus male testosterone levels) even while “transgender” people have been allowed to compete since 2011 (as long as they have no more than five times the median female testosterone level. To, you know, keep things fair).

More to the point, intersex people face their own challenges separate from cross-dressing men, to say nothing of gender nonconforming children. Yet the ACLU and plaintiffs would treat all of these classes as a single class with a single shared interest, then shoehorn them all into the female sex class with a verbal legerdemain. “Idaho is the first and only state in the United States to categorically bar the participation of a subset of women in women’s student athletics because they are transgender and/or intersex,” the complaint reads. Presto, chango, wave the magic gender wand, and male bodies become part of the female body class. Harry Potter could not do it better.

As Dr. Emma Hilton says, “Female sport exists to celebrate the achievement of extraordinary females, not ordinary males.” The ACLU would have ordinary male bodies celebrated for their achievements in competition against female bodies. If the Olympics were held as coed games, very, very few biological females would even qualify, much less win medals. It is nothing less than incredible to me that the ACLU, and the broader liberal and progressive organizing establishment, pretends otherwise. Shameful, actually, and a sign of just how far the destructive rot of gender politics has advanced.

Sports scientist Ross Tucker, who opposes the Semenya decision by the arbitration court, has also called the Y chromosome “the single greatest performance advantage a person can have.” Male bodies have 10-30 percent greater muscle strength, greater bone density, better oxygen efficiency, larger heart and lungs, more efficient pelvic Q-angle and elbow angles, as well as 10 percent more overall body mass. These advantages accrue by testosterone in adolescence and are retained later in life even if the testosterone stops. This is what the ACLU dismisses as “unfounded stereotypes and false scientific claims:” human biological development. No doubt the athletic training textbooks used in classes at Idaho universities acknowledge all of these realities, as they are fundamental to the project of training athletes. Would the ACLU have them removed from the classroom? Because that would not surprise me at this point. In fact, I am pretty sure they would defend a gang of gender studies majors breaking into the campus gymnasium to burn those “transphobic” books.

Again, these are physiological advantages. They do not disappear altogether with hormone treatment or reduced testosterone, as the suit proclaims, and they are not small. In the context of contact sports, they can actually be dangerous for members of the female sex class. The ACLU knows this; they just don’t care. “In the past, she has seen runners physically jostle or push each other at meets,” the complaint says of Lindsey Hecox, plaintiff number one in this lawsuit. Such behavior is not unknown on the cross country trail, and it is unsafe, but that situation is not improved by having male bodies jostling and pushing against female bodies. It is actually made far worse, and what’s more, anyone with working eyeballs can see that.

People look at this photo and intuitively know it is morally indefensible. The ACLU is scolding them for wrongthink. We have a word for that in English: gaslighting.

Plaintiff number two is a Jane Doe who wants to play soccer with transgender athletes. Evidently chosen to speak for all female-bodied athletes in Idaho, Jane Doe worries she might be subject to “an invasive or uncomfortable test” (a cheek swab) if someone deems her too masculine and challenges her eligibility. This potential horror (again, a cheek swab) threatens “to intrude upon the privacy and bodily autonomy of all women and girls engaged in student athletics,” whereas letting intact male bodies into the girls’ locker room and the women’s rugby field does not intrude at all on their privacy or bodily autonomy. To even suggest that would be transphobic.

Worst of all is the hostage-taking. For unless these male-bodied people are allowed to compete (and let’s face it, mostly win) against female-bodied people, they will continue to “face exceedingly high rates of suicidality due to ongoing societal inequities” — the poor dears might just murder themselves if they feel misgendered, you see.

The complaint includes a photo of Hecox wearing makeup and pretty hair to prove that the plaintiff is a girl, a really real girl, while the text snipes at ideological opponents using the wrong pronouns for this plaintiff. According to the ACLU, there is no greater human rights violation than to be misgendered.

“It would be painful and humiliating to be forced to be the only woman on a men’s team,” Hecox asserts. “It would also be contrary to her medical treatment plan for her gender dysphoria,” the ACLU insists. The underlying message: Idaho’s law is literally murdering the plaintiff by misgendering them.

Of course, the plaintiffs could just as easily work to establish a “gender games” that would give transgender and intersex athletes opportunities for fair competition. That would never work, however, because it would not give them the thing they actually crave, which is validation as the opposite sex. For Hecox and the ACLU, women’s sports exist to provide validation, not a fair competition.

It is telling that the ACLU does not use the word “competition” in this document. Nor do we find the words “race” or “contest” or “championship” or “record” or “medal” or “trophy” or “scholarship.” The latter word is a poignant example of the sex-based rights that are to be redistributed on the basis of “gender identity.” The plaintiffs would have male bodies winning things of value that were specifically set aside for female bodies — and they would call it social justice.

Nothing I have said here was controversial even five years ago. The ACLU makes much of Idaho being the first to pass such legislation, but this has only become an issue quite recently as activists lobbied sports organizations to let transgender athletes compete against members of the opposite sex class. This program has succeeded with almost no public debate — because “this is not a debate,” natch, and they would be unlikely to win a fair contest of facts and ideas. Their success has only been possible because no one in Congress in 1972 could imagine there would ever be a need to spell out the definitions of male and female as sex classes. Now that an actual public debate has finally broken out, the ACLU calls it discrimination, and projects animus on anyone who disagrees with their maximalist position.

As I said above, H.B. 500 is hardly perfect. As the ACLU says, its language is “expressly directed at only women’s and girls’ sports; it does not restrict participation in men’s and boys’ sports.” Trans boys — female-bodied athletes taking testosterone — have obvious unfair advantages over members of their own sexed-body class. (This just reinforces the role of testosterone in producing those athletic advantages in the male body during puberty, the very moment when male world records surpass female adult world records and never look back.) Idaho legislators do need to craft better legislation. Like the lawmakers of 1972, there are challenges they have simply not imagined.

To make matters worse, the Idaho attorney general seems unenthusiastic about defending H.B. 500. Which is a shame, for the case deserves a talented and creative defender who can turn this new gender orthodoxy on its head and make a strong defense of sex-based rights.

We should not be sanguine about this bill’s chances for survival, but it is good to see legislatures getting up on their hind legs to push back against the pseudoscientific campaign to derange a core federal civil rights law against the very class it was enacted to protect.

About the author

Former progressive activist declared heretic by his former movement for refusing to believe that "woman" is a costume or a feeling and recognizing male pattern behavior as male even when it wears lipstick and high heels. Just because you hate something I say does not make it hate speech.
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[…] a tweet about the decision, the ACLU continued its relentless campaign to gaslight this issue by describing such laws as “bans on transgender athletes” […]

[…] categories. The American Civil Liberties Union is working hard to overturn the law so that males can cheat at sports. As sixty-six percent of likely voters in Idaho approve of the legislation, don’t imagine […]

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