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. I’m sorry, but I have running shelf feet of law books and books by lawyers and law professors. Civil Procedure, Common Law Pleading Arbitration, Business Law, Litigation, Administrative Law Pleading, books by H. L. A. Hart, Andrew Napolitano, Gerry Spence, Gloria Allred, Philip K. Howard, Bob Mionski, Antonin Scalia, Kenneth Lasson, Edwin Vieira, Catherine Crier, Richard Posner, and many more, most of which, because my family was financially trashed by the stunning dishonesty of the Door County Circuit Court after our son and his wife were killed when their car exploded because of faulty spot welds, were put into safe storage because we were forced into a small modular home in order to stay out of the rain and snow because of having been financially ruined for adopting an eleven year old boy who in need of a safe home.

    I picked one accessible book that may help convey the range of my library, Felix Frankfurter, “The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen,” Little, Brown, and Co., Boston, 1927. I have in hand the September, 1927 reprinting.

    I am an engineer, seeking to do my part to properly engineer safe social structures for human society, and am licensed by the State of Wisconsin.

    No other profession has ever found a way to solve the enigma of human destructiveness. Many years ago, it occurred to me that a sufficiently, verifiably accurate understanding of human brain function might lead to a way out of the morass of human violence.

    Methinks I may be making progress. Especially when I run into people who decline to understand my work accurately enough to critique its scientific merit and, instead, throw filth at me as though that would other than teach me to work ever more effectively and efficiently.

    I am not interested in how the law works.

    I am only interested in how the law does not work.

    What works is not in need of repair.

    What does not work may benefit from proper repair.

    I come to truly help in genuinely decent ways, and I am only egged on toward being decent and helpful, when rotten eggs are thrown at me.

    I do what I do, not only because I do not understand the law, but also because I very clearly understand why I do not understand the law, and why is because the structure of the law is desperately in need of proper repair.

    For the actual benefit of lawyers no less than anyone else.

    I come not to bury the law, but to raise it into the light where it can be seen, heard, and fixed.

    I remain curious as to why, to me, it is as though unimportant whether a conscientious person can deliberately be continuously law-abiding.

    If I could not do engineering in conformity with known, verifiable engineering laws, I would be unable to engineer anything except by pure coincidence.

    Given the obvious biological fact that human law is an expression of human biological activity, why is human law impossible for human biological activity to comprehend well enough that humans can obey engineering laws better than human laws?

    I cannot escape the intense notion that there is a profound and pervasive deception within the structure of human social law.

  2. James M. — sorry, no offense intended.

    I am just suggesting that being a former policeman and judging by the photo, my guess is that Ms Lawless is not a thin-skinned girl that can’t take care of herself. She is probably a pretty tough person, even “One hell of a competitor”.

    Though she may be innocent of wrong-doing, she is no MORE innocent than I am — where’s my right to join the LPGA? See the point?

  3. I take your broader point, but this:

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

    is a really offensive way to make it.

  4. It’s always interesting reading the commentary on JT’s blog, but this time I think you all missed the boat.

    There is a place for people excluded from the LPGA, it’s called the PGA — it’s for both men AND women.

    The WHOLE POINT of the LPGA is that big hulking brutes aren’t allowed. That’s is the only purpose is serves, it’s only reason to exist, and always has been.

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

    I don’t mind Lana Lawless switching her gender — fine, enjoy, whatever. But if you want to be a professional athlete, in any sport, be prepared to live by whatever screwed up rules the gerry-riggers have contrived to guarantee an interesting show for the spectators. Pro sports exist to satisfy the spectators, not the athletes.

    Keeping out Lawless because she wasn’t BORN female is not different than keeping out me because I have never been female — it is genbder based discrimination and it’s their very reason for existing.

  5. As a bioengineer who has studied biology intensively and extensively, methinks sorting out genetic ancestry needs to be given mitochondrial DNA attention no less than nuclear DNA.

    Meanwhile, everyone has many “negroid” markers, it is just that some of them tend to not switch on in people who live in low sunlight areas (far from the equator) because some “negroid” genes are switched off in order for people in low sunlight areas to avoid rickets long enough to have progeny.

    We are all negroid, so “says” the observed pattern of genetic diversity geographic distribution to me.

    For someone rather faded like me, it only takes being out in the sun without getting sunburned, to activate a bunch of negroid genes.

    Some people call that, “getting a tan.”

  6. I’m sorry, but just because you wish everything you’d ever need to know about the law would be summed up in Black’s, that doesn’t make it so.

  7. RE: James M., January 31, 2011 at 11:56 am

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

    The phrase natural person is used to distinguish a flesh-and-blood human from an artificial person, such as a corporation.

    ###################################

    Back to my law dictionary collection.

    Black’s 9th, only on definition for blood:

    “blood. A relationship between persons arising by descent from a common ancestor.”

    As I am not a relationship between persons, because I am an person and not a relationship, I am obviously not a blood person. And “flesh” is not defined in any of my law dictionaries.

    Whatever flesh may be, as I am not a blood person, I cannot be a flesh and blood person, no matter what flesh is.

    I am not a natural person.

    I sure would love learning about the law!

    I’m just too stupid to do that, alas.

    Sad news for those who hope to teach me the law.

    Seems to me that I am like everyone else, vastly too stupid to learn the law, but not quite so stupid as not to know that I am that stupid.

  8. mespo:

    I learned that information in science at school long ago. And after searching articles on the web and finding a lot of titles filled with words like “Myth” and “Sickle Cell Anemia”, I take it many more people learned it too.

    Of course, you realize that whites and Hispanics can have black relatives in their background and not even know it and that explains why whites and Hispanics might have it? And unless those genetic markers were screened for in the government data it cannot really imply that pure Caucasians or Hispanics (ancestors of Asians)have sickle cell anemia (and no Negroid markers).

    The question is do the whites or Hispanics have evidence of black ancestry in their DNA in the numbers the government supplies? They probably do and the government isn’t telling us or it didn’t screen for it. It probably wouldn’t tell you about genetic properties of race and IQ either.

    This is because science is tossed overboard when it points to things government (and leftists) don’t wish to discuss.

    All hail science, until it makes us uncomfy.

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

    The phrase natural person is used to distinguish a flesh-and-blood human from an artificial person, such as a corporation.

  10. If I seek to know something about someone, I simply ask the person.

    And, given the disparities between law dictionaries and court decisions, I am driven to the common written view of many law professors that, “the law is what the judge says it is.”

    Until there is only one judge who never changes, there will never be any actual specific legal meaning for anything.

    If there is only one judge who never changes, the judge will not be able to judge, and there will never be any actual specific legal meaning for anything.

    There will never be any specific legal meaning for anything.

    Whoopie. I learned how to write from Jared Loughner?

    Now his writing makes perfect sense to me?

    He really needed someone who really understood him.

    He found that the law is what it isn’t and isn’t what it is?

    He and I may have one little bit of shared understanding?

    Or not?

    (Except that I ABSOLUTELY will never use a gun to kill anyone for any reason.)

    But, methinks, conventional lawyers and I appear to have absolutely no shared understanding of actual, directly-observable scientifically-intelligible human brain biology structure and function.

    Not, “Or not.”

    Diversity IS!

    “Reasonable Person” ISN’T!

  11. RE: James M., January 30, 2011 at 8:43 pm

    The phrase “natural persons” has a specific legal meaning..

    ################################

    I just love finding something specific that is unspecified.

    Sure would make real engineering easier if there were a table of specifications, thus:

    SPECIFICATIONS:
    Unspecified.

    There is a specific legal meaning of the terms, “natural person” and/or “natural persons”???

    Says who?

    While “natural person is defined, for example, in Black’s 9th, as a “human being,” neither “human” nor “being” is defined; hence “natural person” is defined without being defined by the words in its definition because the words in the definition are undefined.

    Seems to me like many legal definitions are made only of imaginary “pseudo-silly-putty.” (apologies to the trade-mark holder?) They are specifically unspecified.

    Tilt!

  12. RE: Zoe Brain, January 30, 2011 at 9:17 am

    Thanks. It is good to hear from someone who knows and understands…

    I have formal autism diagnoses and formal transgender diagnoses.

    I am of the Kanner clan. I cannot experience thought in pictures or words and have to transliterate thoughts from words or pictures into meaning to process picture or word form messages and I have to transliterate thoughts into picture or word forms to share thoughts with those communication tools. In terms of being able to experience thought in words, as the Sapir-Whorf hypothesis suggests people may commonly do, I may have eternal language delay.

    Being transgendered made it easy for me after I understood my dad’s nearly dying at age 50 from prostate disease which included pre-malignant cancer. To be alive without testosterone actually much improved my inner life.

    There are some fun things my life allows me to do that few people can legally do. Because I chose to not change my gender for legal purposes after the orchiectomy, and because being provided with properly low testosterone levels allowed me to develop rather nicely in the right and left two places, I am able to “show off” in pubic without being in violation of law.

    If only I were an actual exhibitionist, which I a not… Yet I can act out a way of ridiculing narrow minded gender bigotry and get away with it…

    I was, for a number of years while living in the Chicago area, a proper member of the Chicago Gender Society, a really decent bunch of caring people.

    At one meeting, another member asked me why I did not cross-dress (I wear typical masculine clothing) and I replied, “What makes you think I am not cross-dressed now?” The other person first put on an astonished facial gesture, did a double-take, and then beautifully, gently, laughed in affirmation.

    Ignorance is, to me, simply an opportunity for learning in waiting.

    There are folks who are unaware of Jim Sinclair. There are folks who are unaware of Gloria Hemingway, writer Ernest Hemingways daughter, who sadly died in Miami-Dade Women’s Correctional Center, and there are folks who are unaware that she wrote the book, “Papa,” using her birth name and medical degree, Gregory Hemingway, M.D.

    Jim Sinclair’s “Don’t Mourn For Us,” summary is among the most beautifully endearing writings I have yet read, it is available on several Internet sites.

  13. I don’t see an appeal under the name you gave me, but I see a ton of references to the E.D.Pa. district court case which I read earlier. That district court case does not say that intersex people are not natural persons.

    The E.D.Pa. case is the one which the Intersex Society of North America discusses on their website.

    The E.D.Pa. case is the one which Prof. Greenberg talks about (at length) in her law review article “Defining Male and Female: Intersexuality and the Collision between Law and Biology”.

    I can’t find a single citation that includes the fate of the case on appeal — admittedly, I didn’t do an exhaustive search, but I did enough that I’ll be surprised that all of those people are ignoring an important decision on appeal.

    If the Third Circuit really implied that intersex people are not natural persons, that’s a big deal, and I want to read the case. Can you please give me a citation to the appeal to which you’re referring?

  14. James M – having ruled that Ms Woods was not discriminated against because she was neither a man nor a woman, the court remarked obita dicta that the definition of “natural Person” meant “a man, a woman, or a child”. As Ms Woods was not a minor, nor a man, nor a woman, she was not a “natural person” and thus had arguably no standing to bring the action in the first place. The point was moot though, as she had already been ruled against on other grounds.

    The court used this definition:
    PERSON. This word is applied to men, women and children, who are called natural persons. 1 Bouv. Inst. n. 137

    This obscure ruling has had international implications, involving inter alia changes to South African Law:

    The amendment was drafted because an American case made it clear to me that the Equality Clause did not protect the intersexed. An American federal court found that the firing of a woman because she was born intersexed did not breach a Pennsylvania equality statute similar to our Equality Clause.

    “Human being” and “[natural] person” are also defined as having a sex in exclusively binary terms. The intersexed, somewhere in between, could thus be argued to be neither human beings nor natural persons.

    In South African law, one needs locus standi, the right to address the court, to mount a legal challenge. Since the intersexed did not fit workaday definitions of “human beings” and “[natural] persons”, arguably they lacked the locus standi to challenge this or any other type of discrimination. It followed that the intersexed, because they were intersexed, had no secure rights — not even to dignity or to life itself.

    http://www.mg.co.za/article/2009-09-19-intersex-and-the-law
    To give you an idea of just how bizarre US law is on such issues, I’ll quote from Littleton vs Prange:

    “Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Texas, is a male and has a void marriage; as she travels to Houston, Texas, and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.

    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.

  15. The phrase “natural persons” has a specific legal meaning, and I’d be absolutely shocked if any judicial circuit ever ruled that intersex people were not natural persons. Also, standing to sue under a specific federal employment law is not the same as “standing” generally. I’d be just as shocked if any modern circuit ever said intersex people have no standing. (I did look at the case you cited.)

    I think you may be mistaking a comment about how LPGA should have adopted their position with approval of that position.

    Based on the first part of your response, I think you may have also missed this part of my answer:
    “After looking at some more details about the California law, I’m not sure it would make any difference, but avoiding the appearance of acting solely from animus is still good advice.”

  16. James M wrote:

    I wasn’t suggesting there was an accurate test — I was suggesting that the LPGA would have been better served legally to come up with a specific testing procedure

    Ah, if accuracy isn’t a problem – use height. Men are taller than women, so just rule that everyone above average height is male, those below, female.

    That has just as much justification as does genetic testing, and would be just as difficult to defend in a California court.

    Note though that in Ohio and Kansas, anyone with XY chromosomes is male, even if they’ve given birth, and in Kansas, XXY people have no legal existence. In the 6th Federal Circuit (IIRC) Trans and Intersexed people, being regarded as “neither men nor women” are not, in law, “natural persons”, and so have no standing (see Woods vs C.G.Studios).

    To give you an idea of what a legal mess this is, I’ll quote from Littleton vs Prange:

    “Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Texas, is a male and has a void marriage; as she travels to Houston, Texas, and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”

    We had the same kind of mess with anti-miscegenation laws. Someone who was 1/64 Black would be Black in one state, so forbidden from marrying a White, and White in another state, so forbidden from marrying a Black.

  17. Zoe Brain,

    Exactly what magical “gene test” do you propose?

    I wasn’t suggesting there was an accurate test — I was suggesting that the LPGA would have been better served legally to come up with a specific testing procedure and use that as its definition of who qualified as a woman. The whole “female by birth” phrasing makes it extremely transparent what they are trying to avoid. After looking at some more details about the California law, I’m not sure it would make any difference, but avoiding the appearance of acting solely from animus is still good advice. “I’m sorry you don’t qualify, but determining sex is a complicated issue so we’ve decided to use this one testing procedure. If we start making exceptions, our standard would be meaningless” is a lot easier to defend than “No trannies!”

    The IOC is trying to be fair, and allows people who have completed sexual reassignment surgery to compete, two years after their final operation. http://www.guardian.co.uk/sport/2008/jul/30/olympicgames2008.gender

    Trying to craft a fair policy is much harder than a discriminatory one that excludes all the people you don’t want involved, especially if you don’t care if there are some people who were “born female” who get excluded as well.

  18. mespo – Thanks, most kind of you to say so.

    It’s really just a case of the old T-shirt design: “SCIENCE. It works!”

Comments are closed.