PEACEFUL COEXISTENCE

Commissioners’ Rebuttals
143
would therefore have cut in favor of assigning a young Caitlyn to the boys’ teams in high school
on both grounds. 38
The notion that gender is not binary further complicates the issue. See Anne Fausto-
Sterling, The Five Sexes: Why Male and Female Are Not Enough, The Sciences 20 (March/April
1993); Darren Rosenblum, Trapped in Sing Sing: Transgendered Prisoners Caught in the Gender
Binarism, 6 Mich. J. Gender & Law 499, 503 (2000) (“Although most people accept that there are
two sexes, “male” and “female,” these categories actually contain a myriad of genders, formed
genetically, biologically, and culturally”). If gender were determinative of sports team eligibility,
schools would need to field a whole range of teams, rather than just a boys’ and a girls’ team.
According to the National Transgender Discrimination Survey conducted by UCLA’s
Williams Institute, 31 percent of transgender respondents identified either strongly (10 percent) or
somewhat (21 percent) with the identity “Third Gender.” 39 Since no school can float a different
team for all the gender choices that seem to be in fashion these days, going with sex as
determined at birth may well be the best and most practical rule. See, e.g., Sam Escobar, I’m
Not Male I’m Not Female. Please Don’t Ask Me About My Junk, Esquire (March 31, 2016); Ernie
Grimm, My Gender is Bunny, San Diego Reader (March 25, 2009). I note that the number of
high school and middle school transgenders who have received surgery in order to have their
anatomy appear more like the sex they psychologically identify with is vanishingly small. 40
Voluntarily indulging an individual’s eccentricities can be a good thing, whether those eccentricities are connected to
the individual’s sex or to some other characteristic. Indeed, such indulgences can add to life’s charm. Cf. William
Drury, Norton I, Emperor of the United States (1986). Mandating that an employer, landlord or business owner
address an employee, tenant or customer as if he is something he is not, on pain of a $250,000 fine, is quite another
thing. And the notion that an employer, landlord or owner of a public accommodation can be forced to use pronouns
that are alien to the English language like ze/hir is abhorrent.
Even during the French Revolution’s Reign of Terror, when Robespierre’s Committee on Public Safety banned
traditional titles like “Madame” and “Monsieur” and required instead the use of “Citoyen” and “Citoyenne” (i.e.
“Citizen” and “Citizeness”) as titles, no one tried to force new-fangled pronouns on unwilling persons. Proper nouns
weren’t considered sacred: Robespierre and his compatriots changed the names of the months of the year, the days of
the week and many other things. But they didn’t just make up pronouns.
I believe that I have an obligation to refrain from contributing to the confusion, especially given that this is a
government report.
38
Buzz Bisinger, Caitlyn Jenner: The Full Story, Vanity Fair, June 25, 2015, available at
http://www.vanityfair.com/hollywood/2015/06/caitlyn-jenner-bruce-cover-annie-leibovitz.
39
See Ann P. Haas, Philip L. Rodgers & Jody L. Herman, Suicide Attempts Among Transgender and Gender Non-
Conforming Adults: Findings of the National Transgender Discrimination Survey 6 (January 2014).
40
Note also that different individuals have different onsets of “gender dysphoria,” which complicates the issue yet
again. In a recent study in Finland, the authors describe both childhood-and adolescent-onset gender dysphoria. See
Riittakerttu Kaltiala-Heino, Maria Sumia, Marja Työläjärvi & Nina Lindberg, Two Years of Gender Identity Service
for Minor: Overrepresentation of Natal Girls with Severe Problems in Adolescent Development, 9 Child &
Adolescent Psych. & Ment. Health 9 (2015).