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