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
I hear wolves are demanding access to the chickens after surgery to attach wings and beaks.
There is precedent. Dr. Renee Richards sued the US Tennis Association for the exact same thing and won. You can find the ruling of the Court in the Google :Legal Scholar link below.
Case is cited as” 93 Misc.2d 713 (1977)
http://scholar.google.com/scholar_case?case=5931698182921762876&q=93+Misc.2d+713+%281977%29&hl=en&as_sdt=2,43
A cautionary noteL Transgender is different from homosexuals in the eyes of the law. Another New York case is Daniel M. Maffei v. Kolaeton Industry, Inc., et al.
Cite as: 164 Misc.2d 547 (1995; 626 N.Y.S.2d 391
In Maffei, the court said:
“Thus, an employer who harasses an employee because the person, as a result of surgery and hormone treatments, is now of a different sex has violated our City prohibition against discrimination based on sex. In other words, an employee who has fulfilled a sexual identity urge by changing sex and is harassed because of such fulfillment is entitled to the law’s protection against employer harassment.
Although, as indicated above, a person may have both male and female characteristics, society only recognizes two sexes. In the complaint plaintiff alleges that he is now a male based on his identity and outward anatomy. Being a transsexual male he may be considered part of a subgroup of men. There is no reason to permit discrimination against that subgroup under the broad antidiscrimination law of our City.”
Jandrew: “If Lawless can sue under this law to be allowed to play in the LPGA, couldn’t a man do that as well?”
———
Yes, if it were applied consistently, words meaning what they mean, IMO. Unless a law itself defines “sex”, for the purpose of association as only a biologically/genetically determined matter, and Unruh does not appear to do that. If the APA definition (American Psychological Association) is used then it becomes a different matter entirely. The use of the term “sexual orientation” broadens the definition of sex beyond simple biological/genetic testing. The law in question, the Unruh law as stated above, uses the APA standard while the Olympics uses a simple biological/genetic standard as I recall.
Sexual Orientation from Wikipedia:
“Sexual orientation describes a pattern of emotional, romantic, or sexual attraction to men, women, both genders, neither gender, or another gender. According to the American Psychological Association, sexual orientation is enduring[1] and also refers to a person’s sense of “personal and social identity based on those attractions, behaviors expressing them, and membership in a community of others who share them.”[2] The consensus among most contemporary scholars in the field is that one’s sexual orientation is not a choice.[3][4][5] No simple, single cause for sexual orientation has been conclusively demonstrated, but research suggests that it is by a combination of genetic, hormonal, and environmental influences,[6] with biological factors involving a complex interplay of genetic factors and the early uterine environment.[7] …. The American Psychological Association states that “[s]exual orientation is an enduring emotional, romantic, sexual, or affectional attraction toward others. It is easily distinguished from other components of sexuality including biological sex, gender identity (the psychological sense of being male or female), and the social gender role (adherence to cultural norms for feminine and masculine behavior). ….”
The biggest issue is that these persons are not women and they are castrated men. They are genetically male if they have a Y chromosome.
By any definition if you have only X chromosomes your are not male. To be female you must have at least two X chromosome and no Y chromosome.
Why should men who choose to give up their secondary male sexual characteristics as adults be redefined as women, when they clearly are not, as they will cease having secondary female characteristics as soon as they stop taking artificial hormones.
Why should the legal definition of womanhood be the default position for a person who has failed as a man? Is that not the ultimate misogynistic discrimination?
Lets face it all the altered male has to do to cheat is to take less female hormone, then the testosterone that is still produced by his adrenal gland will act rather like an illegal steroid supplement would in a male athlete.
Jandrew,
That was why I asked if anyone knew what sex Ms. Lawless was legally considered, e.g. in terms of who she could marry. If she is legally a woman, there’s a clear-cut standard and we don’t have to worry about a slippery slope at all.
If Ms. Lawless is still legally a man, it does become a much harder distinction to make (and a much harder argument for Ms. Lawless to make in court).
Jandrew,
You all are just trying to dick the lawless around aren’t you….there will be no beating around the bush on this one….come clean…..
If Lawless can sue under this law to be allowed to play in the LPGA, couldn’t a man do that as well? No disrespect to Ms. Lawless but that is absurd to me.
And just think it was twenty years ago when Augusta National first permitted a black man to become a member of the club.
I wish Ms. Lawless all the best. Maybe she could become the first female admitted to the club.
James M.,
Thanks for sharing the law’s language. Ms. Lawless (interesting name isn’t it?) should be allowed to play if she is good enough. rcampbell, if she isn’t good enough to qualify then she won’t be taking up someone else’s spot very long.
A little later in the Unruh law, there’s this:
“Sex, race, color, religion, ancestry, national origin,
disability, medical condition, marital status, or sexual orientation” includes a perception that the person has any particular characteristic or characteristics within the listed categories or that the person is associated with a person who has, or is perceived to have, any particular characteristic or characteristics within the listed categories.
That seems to make the whole law much more favorable to Ms. Lawless.
Does anyone know the law on transgender persons in California? Are they legally considered their birth sex or their chosen sex? e.g. since gay marriage is illegal, who can they marry? If they were legally considered to be members of their chosen sex, the quote “no matter what their sex . . . [or] medical condition” would seem to be pretty strongly in favor of Ms. Lawless.
I wonder how California interprets “entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Most of that sounds like its directed at people patronizing businesses, rather than describing hiring practices.
If I were advising the LPGA, I would have had them phrase the rule in terms of showing up as female on a specified gene test, so it looked like a method of verifying who was female, rather than clearly a discriminatory act against transgender persons (even though the effect would be much the same).
I don’t know how this will ultimately be decided and I will accept whatever the legal conclusion, but I do not endorse Ms. Lawless’ request and side with the LPGA ban. This feels an awful lot like providing Lawless with an unfair advantage (size, muscle mass, etc.) I also did not agree that Casey Martin (golf pro with a disability who sued the PGA for special needs request to be allowed to use an electric cart during competition) should have been given the competitive advantage of a cart.
However, since there is far more to playing successful competitive golf at the level of the PGA and LPGA than, perhaps they should let her humiliate herself and move on. The problem is that she would be taking up the slot of an otherwise eligible player and preventing her from earning her living.
Everybody’s wit is sharp today … the mind pictures are creating many smiles …
Seriously, this is a big country and there is room for everyone so I’m with mespo and rafflaw in wishing Lawless success.
“Seems the fight against unlawful discrimination and stereotyping never ends.” (mespo) … ain’t that the truth … thank god for good lawyers.
AY,
Some might say I’ve got a bushel basket full, but that’s only because they know me.
pardon me? That was funny……
Buddha, you got a pocket full?
Kudo’s to Lawless and her efforts to protect her rights. Maybe she can give me some golf pointers. I would agree that the equal protection issue might be a good one for her to utilize. However, with the California Law she shouldn’t need it.
“It’s good sportsmanship to not pick up lost golf balls while they are still rolling.” – Mark Twain
I don’t play golf, but assume the earlier the hole-in-one, the better.