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Making a Law Without Being an Ass
“The law is an ass.” — Charles Dickens, Oliver Twist
The problem with law is that it codifies a set of conditions — actions by individuals and response by government. Government’s tools in enforcing laws are a set of hammers of increasing size until one kills you. Culture, in contrast, is a market: people bargain, ignore, decline, accept. Comparing government and culture is like comparing a three-way bulb to a dimmable bulb. Government action is abrupt, but culture can adjust gradually.
These are the thoughts I had as I contemplated the drama in South Dakota over HB 1217. There have been some previous posts about it: How To Sink Your Future Career, Kristi Noem Vetos Bill that Bans Males from Destroying Female Sports, and Give Kristi a Chance.
The focus of this post is the problem in drafting a law to preserve a cultural norm that has existed since the beginning of time itself, but is being blown up by the post-modernists in academia and the “woke” shock troops in corporations and the media. There is no disagreement amongst conservatives over the need to preserve biology and protect girls and women from “woke” reversals. There is a lot of disagreement on how, exactly, to do it. Often the first, and natural, reaction is: “There ought to be a law.” But getting a law in an environment in which skilled lawfare makes the courts your opponent rather than your protector is a perilous activity. And if we are to successfully craft one, we must really think through the strategy to survive lawfare.
In a comment on Give Kristi a Chance, I said:
Governor Noem has alluded to the other states that have adopted protections for girls’ and women’s sports. I need to find the text of those statutes to find out whether the Governor’s or the legislature’s version was more in line with those. She argues that hers is. I’ll try and find out.
Four states — Idaho, Mississippi, Arkansas, and Tennessee — have already adopted “fairness” statutes to prohibit biological men from competing against biological women on sports not intended to be co-ed. Idaho’s law has been enjoined by a federal district court. To enter an injunction a judge has to believe that the plaintiffs (those opposing the law) are likely to prevail in their claims.
Idaho’s was the first “fairness act” adopted in March 2o2o, and enjoined in August. No doubt Governor Noem of South Dakota had studied the Idaho experience in considering her “style and form” changes that the state legislature rejected. So how do these laws, Idaho’s HB 500 and South Dakota’s HB 1217, compare? How do they compare with Arkansas’, Mississippi’s, and Tennessee’s statutes?
Let’s look at the fundamental requirement:
Idaho
DESIGNATION OF ATHLETIC TEAMS.
(1) Interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by a public school or any school that is a member of the Idaho high school activities association or a public institution of higher education or any higher education institution that is a member of the national collegiate athletic association (NCAA), national association of intercollegiate athletics (NAIA), or national junior college athletic association (NJCAA) shall be expressly designated as one (1) of the following based on biological sex:
(a) Males, men, or boys;
(b) Females, women, or girls; or
(c) Coed or mixed.
(2) Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.
(3) If disputed, a student may establish sex by presenting a signed physician’s statement that shall indicate the student’s sex based solely on:
(a) The student’s internal and external reproductive anatomy;
(b) The student’s normal endogenously produced levels of testosterone; and
(c) An analysis of the student’s genetic makeup.
Mississippi
Designation of athletic teams.
(1) Interscholastic or intramural athletic teams or sports that are sponsored by a public primary or secondary school or any school that is a member of the Mississippi High School Activities Association or public institution of higher education or any higher education institution that is a member of the NCAA, NAIA or NJCCA shall be expressly designated as one of the following based on biological sex:
(a) “Males,” “men” or “boys;”
(b) “Females,” “women” or “girls;” or
(c) “Coed” or “mixed.”
(2) Athletic teams or sports designated for “females,” “women” or “girls” shall not be open to students of the male sex.
(3) If disputed, a student may establish his or her sex by presenting a signed physician’s statement which shall indicate the student’s sex based solely upon:
(a) The student’s internal and external reproductive anatomy;
(b) The student’s normal endogenously produced levels of testosterone; and
(c) An analysis of the student’s genetic makeup.
Arkansas
(b)(1) As used in this section, “school” means:
(A) A public elementary or secondary school;
(B) An open-enrollment public charter school; and
(C) A public two-year or four-year institution of higher education.
(2) “School” includes a private educational institution whose interscholastic, intercollegiate, intramural, or club athletic teams or sports compete against a public school.
(c) Interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by a school shall be expressly designated as one (1) of the following based on biological sex:
(1) “Male”, “men’s”, or “boys;
(2)(A) “Female”, “women’s”, or “girls”.
(B) An interscholastic, intercollegiate, intramural, or club athletic team or sport that is expressly designated for females, women, or girls shall not be open to students of the male sex; or
(3) “Coed” or “mixed”.
Tennessee
(a) A student’s gender for purposes of participation in a public middle school or high school interscholastic athletic activity or event must be determined by the student’s sex at the time of the student’s birth, as indicated on the student’s original birth certificate. If a birth certificate provided by a student pursuant to this subsection (a) does not appear to be the student’s original birth certificate or does not indicate the student’s sex upon birth, then the student must provide other evidence indicating the student’s sex at the time of birth. The student or the student’s parent or guardian must pay any costs associated with providing the evidence required under this subsection (a).
(b) The state board of education, each local board of education, and each governing body of a public charter school shall adopt and enforce policies to ensure compliance with subsection (a) in the public schools governed by the respective entity.
(c) As used in this section:
(1) “High school” means a school in which any combination of grades nine through twelve (9-12) are taught; and
(2) “Middle school” means a school in which any combination of grades five through eight (5-8) are taught.
(d) This section does not apply to students in any grade kindergarten through four (K-4).
South Dakota
HB1217
13-67-2. Athletic teams and sports-–Designation by sex–Participation.
Any athletic team or sport that is sponsored or sanctioned by a public school, a school district, an association meeting the requirements of § 13-36-4, or an institution of 12 higher education under the control of the Board of Regents or the South Dakota Board of Technical Education must be expressly designated as being:
(1) A male team or sport;
(2) A female team or sport; or
(3) A coeducational team or sport.
A team or sport designated as being female is available only to participants who are female, based on their biological sex, as verified in accordance with § 13-67-3.
13-67-3. Annual statement–False statement as cause for removal.
Once each school year and before permitting a student to participate on an athletic team or in a sport, the sponsoring or sanctioning entity shall obtain a written statement verifying:
(1) The student’s age;
(2) The student’s biological sex, as ascertained at or before birth in accordance with the student’s genetics and reproductive biology; and
(3) That the student is not taking and has not taken, during the preceding twelve 28 months, any performance enhancing drugs, including anabolic steroids.
The statement must be signed by the student’s parent, if the student is under eighteen years of age or by the student, if the student is eighteen years of age or older.
If a sponsoring or sanctioning entity has reasonable cause to believe that any 32 information provided in accordance with this section is false or misleading, the entity may remove the student from, and prohibit further participation in, any sport or on any athletic 1 team for the duration of the school year.
Governor’s Style and Form Amendment
13-67-1 Athletic teams and sports-–Designation by sex–Participation.
Any athletic team or sport that is sponsored or sanctioned by an accredited elementary or secondary school, a school district, or an association meeting the requirements of § 13-36-4 must be expressly designated as being:
(1) A male team or sport;
(2) A female team or sport; or
(3) A coeducational team or sport.A team or sport designated as being female is available only to participants who are female, based on their biological sex, as reflected on the birth certificate or affidavit provided upon initial enrollment in accordance with § 13-27-3.1.
[13-67-2. Annual statement–False statement as cause for removal. deleted]
[13-27-3.1. Birth certificate or affidavit to be submitted–Violation as misdemeanor.
Any person who is required pursuant to § 13-27-1 to cause any child to attend any public or nonpublic school or alternative instruction program pursuant to § 13-27-3 in this state shall, either at the time of enrollment in any school in this state or upon being excused from school attendance pursuant to § 13-27-3 or within thirty days of initial enrollment or excuse, provide the public or nonpublic school or the alternative instruction program with a certified copy of the child’s birth certificate or affidavit in lieu of birth certificate as issued by the Department of Health in such cases where the original birth certificate is deemed unattainable. Any parent or guardian who requests an excuse for his or her child pursuant to § 13-27-3, shall with the initial request for excuse, provide a certified copy of the child’s birth certificate or an affidavit notarized or witnessed by two or more witnesses, swearing or affirming that the child identified on the request for excuse is the same person appearing on the child’s certified birth certificate. A violation of this section is a Class 2 misdemeanor.]
Now that we have read the texts, let’s ask the following questions:
(1) How does the law protect girl and women athletes?
Idaho: “Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.”
Mississippi: “Athletic teams or sports designated for ‘females,’ ‘women’ or ‘girls’ shall not be open to students of the male sex.”
Arkansas: “An interscholastic, intercollegiate, intramural, or club athletic team or sport that is expressly designated for females, women, or girls shall not be open to students of the male sex;”
Tennessee: “A student’s gender for purposes of participation in a public middle school or high school interscholastic athletic activity or event must be determined by the student’s sex at the time of the student’s birth….”
South Dakota: “A team or sport designated as being female is available only to participants who are female, based on their biological sex….”
(b) Which girls and women athletes are protected?
Idaho, Mississippi, Arkansas, South Dakota HB 1217: Middle school through Higher Education at public and private schools within the state.
Tennessee: Middle school through High School at public schools and any private schools within the state competing with public schools.
South Dakota Governor Noem’s form and style amendments: Middle school through High School at public and private schools within the state. (Governor Noem has issued an executive order encouraging state Higher Education institutions to adopt similar policies.)
(c) How do we determine who is a girl or a woman?
Idaho and Mississippi: If disputed, a signed physicians statement detailing anatomical, hormonal and genetic evidence.
Arkansas: Unstated.
Tennessee and South Dakota Governor Noem’s style and form amendments: Original birth certificate.
South Dakota HB 1217: Required annual statement signed by the student (if over 18 years of age) or parent (if student is under 18 years of age) containing the required affirmative statements about birth anatomy and genetics.
If you have read this far you can see legislators are trying to do a “simple” thing but oftentimes are creating complex machinery to do it. News accounts never do justice to explaining legislation. After all, the news is to entertain and inflame, not to educate. And lawyers representing aggrieved persons will seize upon every ambiguity or interpretation that is problematic.
And I have excerpted only part of the statutes, above. The Idaho, Mississippi, Arkansas and HB1217 bills create private causes of action for violation of the prohibition on male participation in women’s sports. HB1217 also includes provisions relating to performance-enhancing drugs which presumably prohibits transitioning athletes from competing, but which may create a private cause of action against men, by men, for use of PEDs.
If you have to resort to law, you have already lost — your culture is fractured and your arguments unending.
Published in General
I find myself in very strong disagreement with the OP, especially the conclusion. The conclusion seems to state some sort of legal or moral principle, which I find to be erroneous, almost beyond my comprehension. It comes across, to me, as a statement of complete anarchistic libertarianism, if taken seriously. The conclusion is:
I suggest that, when making a sweeping assertion like this, one should consider how it would apply to historical events and, in this particular case, laws.
By this standard, it was wrong to pass the 13th Amendment to outlaw slavery. Gee, they had to “resort to law,” which means that the abolitionists had “already lost.”
No. They won, and ended an odious and immoral oppression through force of law.
The examples are virtually endless. By this standard, we should never adopt laws against murder, or rape, or pedophilia. Or even less serious problems, like trespass in your house or reckless driving.
Thanks, Rodin, you’ve done your usual thorough job of laying out the issues involved in this latest effort of those whose aim is to remake our society.
I write a second comment to address the complexity issue. If I understand the OP correctly, it seems to imply that these laws to prevent so-called “trans-women” — who are really men — from competing in women’s sports are unnecessarily complex.
Such laws have to be complex, in an effort to avoid judicial nullification. We just had an example of this last year, when a SCOTUS majority ruled that the prohibition of discrimination on the basis of “sex” in the 1964 Civil Rights Act applied to homosexuality and transgenderism. Congress had failed to define “sex” — because, I think, it never occurred to anyone in 1964 that there could be judges so mendacious (in my view) as to believe that the definition of this word was in doubt.
Of course, they should have known this in 1964, given that back in the 1940s, SCOTUS had redefined “interstate commerce” and “establishment of religion” in radical ways.
What an extraordinary compendium of state by state law that you have undertaken.
Then your concluding sentence is magnificent as well: If you have to resort to law, you have already lost — your culture is fractured and your arguments unending.
I have the same feeling in following various lawsuits about governors overstepping their executive level abilities and issuing non-state legislature approved COVID edicts. As well as the various lawsuits now coming about regarding Medical Health Freedom cases. In other words, those lawsuits that attempt to allow us to avoid being held hostage by the Biden-insisted upon use of individual businesses to prohibit the un-vaxxed from entering the premises and using the businesses services.
Yes, why didn’t states merely define, or even by-pass, “sex” to use the Y chromosome (dubbed “male”) as prohibited from competing with those without a Y chromosome (dubbed “female”)? Wouldn’t this have made if clearer?
And perhaps included “or as evidenced at birth by physical conformation of the infant” or something like that.
It is always perilous to take on the esteemed Arizona Patriot, but let me point out that the country fought a civil war. The law did not prevent that. In fact the Dred Scott case added to its certainty to occur.
I think that @arizonapatriot misapprehends my point; there is always a risk when coding the thoughts in one’s mind and putting them out there that they will not be decoded in the manner you intended. I love the rule of law and believe it to be the greatest feature of Western Civilization. But rule of law implies dispassionate and consistent application which best occurs when not taxed too greatly. It has become the fashion in my lifetime to pursue a Living Constitution which is now flowering into “whatever we want the law to mean”. Accordingly when trying to use law in this environment to rebalance society, it is a heavy lift and full of hazard.
With respect to Arizona Patriot’s second comment —
I think I am arguing something a little different: Complexity breeds opportunity for error. I agree that the problem has become complicated, and that promotes complex solutions. I struggled in reading the statutes and crafting this post with how to approach this without condemning myself to a multipart series and an effort for which I used to be paid but for which I can no longer justify ignoring chores for Mrs Rodin. That, and a recognition that statutory analysis necessitates a deep understanding of the structure of the code in question and how much lifting is already taken care of by other statutory provisions. Thus, I thought Governor Noem did a brilliant thing by relying on the South Dakota rule that when children are enrolled in school they present their original birth certificate. Typically at the time of enrollment (although not exclusively if news reports are to be believed) sexual reassignment is not in the picture unless one was born a hermaphrodite. Presumably, if born a hermaphrodite, then certain biological actions have been well underway before schooling occurs. (Continued)
(Continued from #6) In effect, by relying on an existing education code provision, the sex of the student was already a well-established fact and not in issue when pursuing interscholastic sports. Idaho, in contrast, passed a separate and additional statute dealing with changing your birth certificate. This legislation (Idaho House Bill 509) seems to have been created because they didn’t want a transgender student who had successfully amended their birth certificates to use that fact against the provisions of House Bill 500 (the “Fairness Act”). Governor Noem’s approach evaded that by reference to the sex designation on the birth certificate presented at original enrollment, likely years before sexual identity became an issue.
Similarly, the South Dakota legislature tried to insert restrictions on performance enhancing drugs into the South Dakota “Fairness Act”. While laudatory in itself, it seem to tackle one aspect of transitioning — hormone therapy — but in a way that strayed into a broader use of PEDs. I am no expert on the rules associated with how and when any drug is labelled a PED and when they are accepted and when they are not. Like everyone else I am generally aware of testing protocols in a variety of athletic competitions and the periodic disputes over whether someone took a substance with the intent to gain and advantage, or whether the substance was unknowingly ingested or medically indicated for reasons unrelated to sport. All of these stories highlight how complicated it is to ensure a fair contest and how difficult it can be for an athlete who has a physical condition requiring a prohibited medication to manage rule compliance and their health.
So, yes, it’s complicated. And when it is complicated legislators have to have some humility about their ability to craft laws that deal with all relevant situations. The odds are they won’t. And when the odds are against you, sometimes it’s better to take a more limited and focused approach. That is the one that stands the best chance of not being nullified. The Tennessee law and Governor Noem’s amendments take the minimalist approach. That is unsatisfying to many, but stands the best chance of avoiding some of the landmines associated with intercollegiate athletics and their protocols. At the same time they are letting young women excel and train and position themselves for their best competition when they do face intercollegiate competition.
Check your premises, Legislatures. If you start with the Premise, Understood that, in Human Biology, there are exactly Two Sexes, Male and Female. No re-arrangement of physical characteristics by surgery; or hormones, via chemistry, can change the incontrovertible Truth of Two Sexes. If a male, with and X and a Y chromosome, attempts to “identify” as female, that “identification” is purely mental, regardless of re-arrangement of physical characteristics, and that Male may not compete in Female-designated sports.
I guess we should get rid of traffic laws because we’ve lost there too . . .
You make a lot of good points, but (I hate but-monkeys, don’t you?) the science and medicine involved with gender dysphoria is creating complex situations, including legal ones – and lawyers get rich off of complex legal situations. Personally, I’d use a variation of the General Prudential Rule when anylizing a complex situation and trying to find a solution. What is the GPR you say? It has to do with ships at sea, and how they operate to avoid collisions:
2. Responsibility
(a) Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case
(b) In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger
In plain English, this says 1) you must follow the rules, but 2) do whatever it takes to avoid a collision, even if it means departure from the rules. In regard to transsexual athletes, the simple solution would be to chuck the complex legal arguments and say, “If you were born a man, you cannot compete in women’s sports, period. The same for being born female – you cannot compete in men’s sports, period.” This is one case where “It’s about fairness” is a valid concern and argument. The world shouldn’t have to be turned upside down and inside out to cater to people with a serious mental disorder . . .
Didn’t women’s sports come about because the average woman could not successfully compete against the average man? Or, the best women couldn’t beat the best men in a given sport? Doesn’t The Fastest Female Ice Skater In Town mean something different than being just the 24th fastest ice skater in town?
Now you’ve stepped in it -It’s worse than that:
https://247sports.com/college/kansas/board/103726/Contents/14-yo-boys-beat-5-international-womens-soccer-team-7-0-71452938/
https://www.cbssports.com/soccer/news/a-dallas-fc-under-15-boys-squad-beat-the-u-s-womens-national-team-in-a-scrimmage/
Yeah, I saw that. There is some kindly questioning whether the ladies let the boys win. Either way, why the match-up?
When I was an undergraduate (way back in
18731973), me and another guy (sorry, not an English major) were shooting hoops alone in the gym. Low and behold, two of our hottest (by skill and by looks) female basketball players came up and asked if we wanted to do a pickup game. We agreed.We did pretty well against the twins, but they eventually beat us through superior passing and shooting (and coaching). However, they had trouble when we guarded them closely. Their coaching came into play because they always passed before we could get close enough to guard them. That’s when they pulled ahead and beat us. Wide open, they didn’t miss too many shots. Needless to say, all four of us had fun, and I became a fan.
I guess my point is that back then, a couple of average yokels did well against two college athletes. Today? We’d get smoked, because the women today play (for lack of a better term) more like men. They’re also stronger, faster, and taller (thank you, @drbastiat). But I still think average students who played basketball in high school might do well against their colleges’ women’s teams, and perhaps beat them.
I played in a senior men’s soccer league ( men>35 but women >18). The local college women’s team would often enter the league as a complete squad in the winter indoor season. The women’s team was pretty good and actually a few years later won the NCAA championship (d 3). My team was all male and while usually in the top 2-3 teams in the league we were the oldest on average-some of the girls were my children’s classmates. We would routinely dominate the college women’s team- like 8-2. And the young women didn’t take it well & would cheat like mad (the refs were usually college male soccer players and would let the women get away with all kinds of holding-since I suspect most of the refs wanted to date the young women.) One of our French players actually liked the fact that the young women were grabbing him-he said “If these young ladies want to hang on me who am I to complain?”
addendum- French player? If you want to meet the foreigners in your town join the soccer league. I met Brits, Australians, Frenchman, Jordanians, Koreans, Nigerians, and all sorts of Central Americans- and this isn’t a big city. Some were serious players (ex Olympic team members, ex MLS) some were duffers.