Playing It Straight: LPGA’s “Female By Birth” Rule Challenged

Submitted by Mark Esposito, Guest Blogger

California professional golfer (and former police officer) Lana Lawless is challenging the LPGA’s rule requiring tournament participants to be “female by birth.”  The LPGA has ruled, according to Lawless, that as a transgender woman, she is ineligible to compete. The rule seems to fly directly in the face of California’s Unruh Law which holds that all people in the state are “free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

Lawless, 57, is seeking injunctive relief against the LPGA as well as Long Drive Association (LDA) and various tournament sponsors like CVS pharmacy and Dick’s Sporting Goods for allegedly conspiring to deny her civil rights and engaging in unlawful business practices to prevent her from competing. Lawless is also seeking monetary damages and a bar to all LPGA and LDA events in California. Interestingly, Lawless won the 2008 LDA long drive competition but alleges the LDA revised its rules thereafter to prevent her from competing in the future.

A copy of her Complaint is found here.  Lawless may be on the cutting edge of transgender equality issues with her challenge to eligibility rules of private businesses. She does not raise constitutional issues in her Complaint but I wonder if such discrimination may be prevented under the holdings in  the equal protection and interstate commerce clause cases.

Last July, a Georgia federal district court ruled that the Georgia General Assembly acted unlawfully in firing an employee who announced she was changing her gender. The decision was remarkably reached at the summary judgment stage and directly invoked the 14th Amendment’s equal protection provision arguing that the legislature’s action violated 42 USC 1983, that allows lawsuits against state officers who violate a person’s constitutional rights under color of any state authority. The specific allegation of denial of equal protection was that the Georgia legislature ” treated her differently due to her nonconformity with sex stereotypes.” Sounds a lot like the Lawless case to me. You can read about  the Georgia case here.

For her part, Lawless is unperturbed by the legal wrangling over the law’s application to the LPGA and LDA rules. To her, it’s a simply an issue of fairness. “I could participate in female wrestling in international Olympic events” Lawless said,”but, here in my own state, in my chosen profession, because of blatant prejudice, I am excluded and discriminated against.”

In any event, it seems like the 14th Amendment will be getting a workout this year as these cases pass into the appeal process. I wish both plaintiffs smooth sailing. Under what arrogance may one individual dictate another’s lawful hopes, dreams, employment, loves, and actions? Seems the fight against unlawful discrimination and stereotyping never ends.

Source: FindLaw

~Mark Esposito, Guest Blogger

73 thoughts on “Playing It Straight: LPGA’s “Female By Birth” Rule Challenged”

  1. Every person is perfectly unique, in my experience, though it is possible to use classifier schemes which result in clusters of shared classifications which may appear to group people into shared similarities. The more detail used in the classifiers, the smaller the cluster membership tends to become.

    So, I regard each individual as perfectly unique, the better to know any given person without contaminating my sense of what the person is with my sense of what someone else is.

    In this manner, I do not regard any of the classified properties of anyone I already know as pertinent to anyone I have yet to know. This means, for me, that life is always a new adventure, sharing some traits of past adventures and always having traits totally new to me.

    In my world, there are no two the same of anything, and if two of anything are the same, there is only one of them.

    Some years ago, I calculated the number of possible genders, using gender characteristic classifiers from a collection of sources, including the research document which was an adjunct to Kim Elizabeth Stuarts, “The Uninvited Dilemma,” and found that there are far more possible unique genders than there have ever been people on earth. A few such characteristics include gender identity, gender role, sexual orientation, pheromone expression, pheromone response, and there are very many more.

    While the law of the excluded middle does apply to a real dichotomy, the fallacy of the excluded middle applies rather well to everything else. It is easy, if unwise, to model a continuum as a dichotomy.

    It can be profoundly damaging to model a high-dimension-space continuum as a two-state dichotomy. The dichotomy of guilty (exclusive-or) not guilty is terribly damaging, I find, in such ways when applied to the bewilderingly high dimension continuum space of human biology as social process.

    Somewhere, there must be someone who can allow that I exist and that there may be some value in my life and my life work. Besides me, that is.

    So much ignorance, so little time… That got to me in a beautiful way.

    Therefore, to me, Zoe, you are perfectly normal, just like everyone else.

    So, writing only for myself, Zoe Brain, I am thrilled and delighted that you have begun to comment here. While I never get lonely, I do welcome people who share some less common, normal aspects of my life, when such is possible.

    Thanks for sharing what you did. I find it very helpful. As your situation allows, please continue, for your sake and the sake of others who may be helped to know they are also normally diverse.

  2. Zoe,

    Thanks for posting. Traditional transsexuals are pretty well known in the American LGBT community, but there’s much less attention paid to intersex people.

  3. Zoe,

    Interesting blog you’ve got there. I particularly liked the credit “Voted Best ANZ Blog not owned by Rupert Murdoch”. 🙂 It’s also nice to have another scientist on board. Slartibartfast (on temporary hiatus) is a mathematician and we’ve had several transient scientist posters over the years – many doctors and psychological professionals, but never an actual rocket scientist.

    That’s just cool.

    And as there are a lot of S/F aficionados posting here, I’m sure that is not going to be an uncommon reaction. So again, welcome. And don’t underestimate your brain power either. Your blog is an intelligent and witty read.

  4. Thanks everyone.

    IANAL – I’ve had no formal legal training. I did, however, lead a team retrieving data from WESTLAW’s numerous databases, fastening it all together, and publishing it in HTML and on CD.

    That involved having to check line-by-line every reported case in every (Australian) jurisdiction, federal, state, and territory over 5 years, plus commentary, and of course all legislation in every jurisdiction too.

    Anyway, I have to rely on secondary sources now.

    I’m no genius (unlike some here). I’m a polymath, with atypical neurology. But typically atypical – conforming strongly to a stereotype often found in Intersexed and Transsexual people. Aspergic, intuitive, and an ability to see connections others don’t. Not as good at that as I might be, but if taken to extremes, that become schizophrenia, where you see connections that have no objective reality.

    Anyway, I’m a standard Rocket Scientist (2 spacecraft contain my work), Naval Combat Systems architect, and doing a PhD in Genetic Algorithms and Evolutionary Computation. Usually unusual, like Stephanie Langhoff (Chief Scientist at NASA’s Aimes research centre) or Amanda Simpson, who managed to put in a 20 year career as a test pilot, as well as collecting a string of degrees. They’re both standard Trans as far as I know, though Stephanie might be 47XXY, she has all the physical “tells” for that.

    My priorities are now : 1. Bringing up my 9 year old son (also Intersexed, but mildly so). 2. Completing my PhD. 3. Dealing with the repercussions of my unusual biology.

    In 1985, I was diagnosed as a mildly Intersexed male. “Undervirilised fertile male syndrome”, a form of mild Androgen Insensitivity Syndrome. I looked male, mostly. Like a short quarterback, though the abdominal scar where anomalous structures had been removed was a bit of a giveaway, as was the mildly non-standard genitalia.

    A psychological test (not that I had one) would have revealed that I was standard transsexual. I’d picked the name “Zoe” when I was 10, confidently expecting to have a female puberty despite my masculinised appearance. But when you look like a footballer, not a cheerleader, you try to make the best of things. I couldn’t “pass” as female.

    In 2005, my metabolism had a meltdown: I was losing a kilo a day at one point. And my shape changed. After MRI scans, ultrasounds, gene tests etc, none of which were available in 1985, I was re-diagnosed as a case of “severe androgenisation of a non-pregnant woman”. By that time I looked about as anomalously female as I’d looked anomalously male before then. I couldn’t “pass” as male.

    We don’t have a good handle on why this happened yet, and it’s been 5 years. There’s been less than 100 cases recorded, from a variety of causes. Female to Male changes are 100 times more common, and are well understood – but not us.

    Because of my situation, I’ve had to become educated in the legal aspects of things. It took me a 20 month legal fight just to get a passport, for example. Necessary to go to overseas conferences as part of my PhD, but also necessary to see various specialists around the world, notably Thailand and Hawaii.

    To get my UK Birth Certificate changed would take a change in the law, and a European Court of Human Rights case before that. The UK Gender Recognition Act only covers Transsexuals.

    Now that does mean that in Australia, where I live, I’m legally female, due to being biologically female. Same-sex marriage is illegal, so I could only marry a man. But in the UK, I’m legally male, so could only marry another woman. Because same-sex marriage is illegal there too.

    DigitalDave wrote:

    Isn’t it obvious they would contrive some way to keep out men impersonating women? Even those that resort to surgery and hormones?

    Keeping out Lawless because she wasn’t BORN female is not different than keeping out me because I have never been female

    I admit when I read this, my initial reaction wasn’t exactly cool, calm, collected and rational.

    Yes, I’m human. (Though actually there was some argument amongst my medical team about that at one point… whether I was a member of the species H.Sap. anyway, based on my endocrinology…).

    ANYWAY… I wasn’t “born female” in some respects. Certainly not in external appearance, though an autopsy would have shown that I was.

    Perhaps it’s a good job I don’t play golf.

  5. Zoe Brain:

    “Consequently.. having studied the area… while I would also be shocked if in this day and age, an Intersexed person would be deemed not to be a “natural person”.. it wouldn’t surprise me. There have been even sillier, and more inhuman, rulings by US courts on similar issues.”


    You really need to hang around this blog. With precious few exceptions, yours is as clear, reasoned, persuasive, and rational a voice for your position as we’ve seen in a while. I’ll bet you have equally refined positions on other issues bandied about around here.

    Wiht no particular authority to do so, welcome aboard.

  6. For what it may be worth, I do automatic spell checking and rapid proofreading of my comments, and often copy and past my comment into WordPad and save it before posting it. Some typos which appear on this blawg are not to be found in the comment as I sent it.

    Errors happen.

    Third line of mine in my previous comment should be:

    “I began a while ago…”

    I wonder if it will get through unaltered this time?

  7. RE: James M. 1, January 31, 2011 at 5:35 pm

    J. Brian Harris, Ph.D., P.E.,

    You seemed to be trying to parse the phrase “flesh-and-blood” using Black’s Law Dictionary. My comment was meant to point out that that is a pointless endeavor. Flesh-and-blood is simply a phrase I used to help describe the difference between natural and artificial persons. It’s a very common phrase; a cliche really. The fact that the definition of blood in Black’s doesn’t fit into the context of that phrase is completely meaningless.


    I used Black’s that way solely because doing that was preposterously absurd beyond the ludicrously ridiculous.

    I began a while go to learn whether I might be able to share a genuine concern about public safety as research scientist-bioengineer based upon aspects of my doctoral research which my committee members deemed perhaps a possible scientific revolution of completely-new paradigm magnitude.

    If my committee members’ view eventually is confirmed, it appears to me that such a scientific revolution will be of importance that is without precedent in annals of science and human history.

    When I found “swear words” returning for merely describing a minor aspect of my research findings, that piqued my interest, and I set out to find whether that astonishing (to me) happening had within it some useful data. Alas, it seems to have massively significance.

    I am finding myself quite nonplussed by your responding as though I am serious about not being a natural person because I am not a blood person according to Black’s… Alas, the nature of adversarial law may make individual people their own best adversaries, which I actually do find is as though so for some people who become substance-addicted as a psychological displacement coping mechanism.

    At the Carleton 1961 Class reunion in 1991, one of my brighter classmates, Dr. John Krohn, spoke with me while we were sitting on the Bald Spot grass slightly north of the northeast Skinner Chapel entrance.

    Freshman year, I lived in a now-non-existent single room which wrapped around the elevator shaft, 302 Davis Hall. Other men on Third Davis, as Dr. Krohn said in 1991, felt sorry for me because I was alone in a single room. They never figured out that I knew that I was profoundly autistic and chose to be in a single room because I had no way to be sure that my being autistic would not unduly interfere with a roommate’s studying.

    Dr. Krohn told me the other men on Third Davis often talked about me during “bull sessions.” He said to me that they finally decided that I was some sort of genius beyond what they had thought possible.”

    I was able to read and understand college level books of my own choosing before starting kindergarten. I had my own library card for the Columbia Branch of the Seattle Public Library when I was four, and chose the books that interested me from wherever a book which seemed interesting was shelved.

    When I was four, I asked my mother to show me how “writing” worked, because I was already familiar with “printing.” She wrote out the “cursive” letters paired with the “printed” letters I had known for nearly two years. It took me about half an hour to master the whole cursive alphabet, both upper and lower case.

    Because my life does not include the infant-child transition (or infant-child discontinuity, brain scan methods such as a quantitative, spacial mapping electroencephalogram show that essentially the whole of my brain is working constantly. I do not show the usual pattern of using a fraction of my brain most of the time as is easily shown to be typical of a vast majority of people who have developed “normally.”

    The week after finishing fourth grade, I began studying electronics engineering at college level on my own initiative and began a radio repair business early in sixth grade, repairing every radio I was asked to repair if the radio owner was willing to buy the needed parts.

    I could not afford to buy a voltmeter or ohmmmeter on my five cents per week allowance, and had to repair many radios before I was able to buy a five-dollar voltmeter.

    People gave me some old radio parts, and I made my own test equipment, a potentiometer using a pair of old headphones for the null detector and a resistance bridge. That equipment made measurements with perhaps plus or minus fifty percent accuracy, but it was enough to get going. Because of my small allowance, I had to find exactly what parts needed to be replaced because I had no way to pay for any part I could not sell to my customer and, by conscience, could not sell a part I could not pay for myself to my customer if it was not essential to the repair. I had to troubleshoot each radio without missing a part needing replacement or ordering a part not needing replacement. After a couple years, I had earned enough money to buy a 1952 Knight-Kit VTVM from Allied Radio, and my productivity much increased.

    How many people do things similar to what I did? I know of others, some are friends of mine. However, methinks it rather rare. When I was doing some work for Hewlett Packard, the service department supervisor, who had been a technician for Crossely Associates, then the Chicago are HP sales representative, commented to his supevisor that I was the best electronics technician he had ever known.

    My ability in electronics is, I would guess, less than one percent of my ability in social science research. I happen to be a particular form of autistic savant, and my area of greatest demonstrable ability is in unriddling social structures into their component parts and the relationships among said components.

    I do not compete with people my chosen professional field. Even if there was someone with whom I could compete, I would refuse to do so because I find competition is a form of addiction which gives intense immediate gratification followed later by damage which overwhelms any transient gratification benefit many times over.

    I merely ask someone to understand an aspect of my work that I can easily explain to almost any two year old child, only to find myself excoriated. Such response initially bewildered me, and I set out to identify why that bewildering response happened.

    Because authoritarian (aggressive-passive) people tend to deride me because I am intolerant of the abuses of authoritarianism, I continue to work at finding out what happened to them, because, in more than twenty years of working around very young children at Cook County Children’s Hospital, I observed that no nearly newborn baby I ever encountered was even slightly passive-aggressive.

    I suppose I might usefully give a very brief summary of my grasp of the adversarial system, the better to learn whether or not I actually understand it at all. The following summary leaves out many details, else it would not be brief…

    The purpose of the adversarial system is dispute resolution. Absent a dispute, the adversarial system is quiescent. To activate the adversarial system, a claim needs to be brought before the system by a claimant. The claimant, via the court, activates the respondent by bringing to the claim to the respondent’s attention. Claimant and respondent put forth their claims and counter-claims as evidence. The court determines what of the claims and counter-claims comprise valid evidence, “weighs” the evidence of claimant and respondent, and whether the claimant or respondent prevails is determined by the relative weight of the valid evidence each has provided. Claims not rebutted are intrinsically valid. Through precedent, what is and is not valid evidence is established. Through precedent, procedure is made person-neutral. The court procedure is designed to exclude from the decision everything except the weight of the evidence. This gives the court impartiality as to persons.

    Which basic, absolutely essential, core features did I miss?

    My actual scientific-bioengineering concern is of those aspects of socialization which are of child abuse in the sense of generating time-corrupted-learning brain trauma. This is, methinks, such a new aspect of biological science as to not previously have begun to garner the attention of the law profession.

    Thus, I am bringing a claim before the law profession. Alas, the inherent nature of my claim absolutely precludes my doing it in any adversarial way whatsoever.

    Were I to bring my claim through any form of adversarial pathway or process I would thereby automatically and completely rebut my claim myself before beginning to make it.

    Which is why I have been drawing such attention as I have found feasible to the scientific-biological issues of self-reference.

  8. J. Brian Harris, Ph.D., P.E.,

    Some places the law could be made a lot clearer. I’m thinking on one example in particular that was a pain in the ass to memorize for the bar exam. In Florida, there is no single “statutory rape” law, and instead there are about 3 different laws located in different sections of the Florida criminal code that cover different types of conduct and different ages of the perpetrator. That’s a case where a rewrite would make the law a lot more clear.

    There are other situations in which the law is generally clear, but gets less clear as you get towards the edges of what is prohibited. In those cases we want the law to be a little murky, or at least jagged, because it allows for a more just result. We can have a simple rule that works most of the time, but as you keep pushing the limits on what’s allowed, it becomes harder and harder to pinpoint the exact moment when something should be illegal. For instance, how much does a person have to drink before their consent is no longer legally valid? There’s no possibility of a hard rule (such-and-such a blood alcohol level), so we set up a soft rule and judges and juries have to make the decision in close cases.

  9. J. Brian Harris, Ph.D., P.E.,

    You seemed to be trying to parse the phrase “flesh-and-blood” using Black’s Law Dictionary. My comment was meant to point out that that is a pointless endeavor. Flesh-and-blood is simply a phrase I used to help describe the difference between natural and artificial persons. It’s a very common phrase; a cliche really. The fact that the definition of blood in Black’s doesn’t fit into the context of that phrase is completely meaningless.

    I’m sorry if you have had problems with the legal system, or with understanding the law, but frankly I don’t have BIL’s patience or interest in discussing that with you.

Comments are closed.