In a California case, ACLU and co-litigants claim that there are no biological differences between men and women

May 16, 2022 • 10:45 am

Here we have three articles about a suit filed against the State of California by four female prison inmates who claim violation of their rights by transgender women who were moved to women’s prison’s by a recent California law, SB-132.  The first article is by the ACLU, the second by the feminist organization WoLF (“Women’s Liberation Front”) which opposes transsexual women in women’s prisons, and the third by USSA News, a right-wing organization. Read for yourself; the story is pretty much the same, though spun in different ways by different organizations.

Click on the three screenshots to read:

SB-132, the Transgender Respect, Agency, and Dignity Act, has been in force in California for sixteen months; it permits male inmates who identify as women to seek transfer into women’s prisons. There is no requirement that the men have had surgery or hormonal treatment, a diagnosis of gender dysphoria, or any legal documents supporting their identification as women. All that’s required for such a request is that a biological male in a men’s prison assert that they identify as a woman.

According to WoLF, 300 biological men who identify as women have requested such transfers:

The ACLU objects to the state’s choice to slow the transfer of the more than 300 men who have sought transfer to women’s facilities, one-third of whom are sex offenders (though the ACLU denies this documented, material fact in its court pleadings). One of WoLF’s plaintiffs was sexually assaulted by one of the dozens of men who have already been transferred, and she suffers ongoing trauma as the state refuses to admit that her attacker is a man. So much for “this never happens.” (It has also happened in New Jersey, Washington, New York, and everywhere else that women are inhumanely locked in cages with men.)

Apparently SB-132 is quite lax about its requirements. As stated in the lawsuit against California, the suit quotes the original law and how it is to be implemented:

S.B. 132 (at Cal. Pen. Code § 2606(a)(3)) acknowledges that in California, correctional facilities are designated either for men, or for women. However, S.B. 132 requires Defendant California Department of Corrections and Rehabilitation (“CDCR”) to (1) ask each individual entering CDCR custody the individual’s “gender identity of female, male, or nonbinary” and ask “Whether the individual identifies as transgender, nonbinary, or intersex” (Cal. Pen. Code § 2605(a)(1)-(2)) and then requires Defendant CDCR to (among other things) house the individual “at a correctional facility designated for men or women based on the individual’s preference[.]” Cal. Pen. Code § 2606(a)(3).

3. S.B. 132 limits Defendant CDCR’s ability to deny an individual’s “preferred housing placement” only to situations where CDCR “has management or security concerns with an incarcerated individual’s…preferred housing placement preference” and certifies “in writing a specific and articulable basis why the department is unable to accommodate that…housing preference” and CDCR “shall not deny…a housing placement…based on any discriminatory reason, including, but not limited to…The anatomy, including, but not limited to, the genitalia or other physical characteristics, of the incarcerated person” or the “sexual orientation of the incarcerated person” or for “a factor present among other people incarcerated at the preferred type of facility.” Cal. Pen. Code § 2606(b)-(c).

The suit asks for these provisions of SB-132 to be suspended on Constitution grounds involving privacy and safety.  The ACLU  and its co-litigants, however (a group of pro-transgender and LGBTQ+ organizations) object to the WoLF filing and on May 9 filed a motion to intervene, apparently on the grounds that the ACLU does not trust the state of California to take seriously the interest of its clients (the transgender omen who want to be moved into women’s prisons).

The ACLU, in the article above, rejects the WoLF lawsuit.

The Women’s Liberation Front (WoLF), an anti-trans organization based in Washington, DC, filed Chandler v. CDCR in November in the U.S. District Court for the Eastern District of California. WoLF filed the lawsuit on behalf of three incarcerated women and Woman II Woman, a California-based nonprofit. The filing was replete with intentional and serial misgendering, and rehashed sensationalist and debunked claims about transgender women supposedly perpetrating violence.

This is one of the few cases in which transsexual people have to be judged differently from “cis” people, especially given the provision that all that’s required to request such a transfer is to claim that your gender is a women. No other proof need be adduced. This is clearly unfair and dangerous to women, especially if the transgender women are biological men who were convicte of sex crimes like rape.

This is clearly not one of the larger problems afflicting America, but I do think that one must do more than take a biological male’s word that they are female when the only evidence for that is self-identification. What bother’s me is the ACLU + co-litigant’s claim below, on page 3 of the motion:

16. Proposed Intervenors deny the implied allegation that “those who selfidentify as ‘transgender, nonbinary, or intersex” are cisgender men. The remaining allegations in Paragraph 16 consist of legal arguments and conclusions to which no response is required. To the extent a response is required, Proposed Intervenors deny the allegations in Paragraph 16.

17. Proposed Intervenors deny that “men as a class” are defined and differentiated from “women as a class” by their “anatomy, genitalia, physical characteristics, and physiology.” The remaining allegations in Paragraph 17 consist of legal arguments and conclusions to which no response is required. To the extent a response is required, Proposed Intervenors deny the allegations in Paragraph 17. To the extent that Plaintiffs purport to quote from and characterize S.B. 132, that document is the best evidence of its own contents.

The bit in bold is what I really object to, and show how the ACLU has gone off the rails with respect to sex. In a well-motivated attempt to protect the rights of transgender people, in this case they may (as with the ACLU’s stand on transgender women competing in women’s sports), be committing fundamental unfairness. And, at any rate, they are biologically wrong. I’ve already indicated that to biologists, human “men as a class” are defined and differentiated from “women as a class” because the former have the ability to make sperm and the latter eggs. To deny this, even in the service of ideology, is to deny biological truth.

And so the ACLU once again dissimulates in the interest of ideology. As for the danger to cis-women from trans-women in prison, I’m not an expert on that but there are some cases in which the latter have endangered the former. Because genuinely transgender women in men’s prison’s also face dangers like rape or sexual assault, we need some rules about this, but those rules must clearly involve the transgender person offering more than an opinion that they’re not of the biological sex into which they were born. All of this, of course, comes from the unassailable mantra that “trans women are women” (and the same for men).

h/t: Enrico

47 thoughts on “In a California case, ACLU and co-litigants claim that there are no biological differences between men and women

  1. I’m not about to surrender my membership card — I swore I never would after Poppy Bush denigrated Michael Dukakis during the ’88 presidential campaign as a “card-carrying member of the ACLU” — but I’m no longer paying ACLU dues. Cats have lost their marbles.

  2. In the UK there is a current court case where Allison Bailey (sacked from her job for holding the belief that biological sex is real) is suing Stonewall.

    Stonewall’s Head of Trans Inclusion, in order to testify in court, demanded the presence of his support worker, his support dog and his mum. Yes, really! (And, yes, we are talking about an adult.)

    He then asserted that workers in Allison Bailey’s workplace could not be expected to work alongside her because they would be “unsafe” owing to Bailey’s belief that biological sex is real. That’s it, the mere belief, and merely expressing that belief in words, makes them “unsafe” (needless to say, Allison Bailey has no record of violent or threatening behaviour towards anyone).

    But, meanwhile, women who have no choice about being imprisoned alongside bigger, stronger, criminal men who have been convicted of sexual assault and rape are not at all “unsafe” in any way, no sir, not at all.

    1. “..women who have no choice about being imprisoned alongside bigger, stronger, criminal men who have been convicted of sexual assault and rape are not at all “unsafe” in any way, no sir, not at all”.


  3. This is one of the few cases in which transsexual people have to be judged differently from “cis” people,

    But do they? I would be fine with a rule that says nobody incarcerated for rape or sexual assault may be housed in a cell with any person of their victim type. Cis or trans. I would think doing so would be a significant security concern for the incarcerated individual, and so a reason to deny the transfer request under S.B. 132 for at least the third of applicants who are in jail for sexual assault. This is not a cis or trans issue, it’s a prisoner safety issue.

      1. I disagree…or at least, that would not be how I intended by new rule to be applied. Rather, I’m making the case that anyone who has raped or sexually assaulted a woman in the past has ‘woman’ as their victim type, regardless of how the assaulter now identifies. The housing limitation I’m suggesting is based on past criminal behavior, not gender.

        1. Most sexual assaults do not result in arrest or conviction. So the mere fact that a prisoner deemed dangerous enough to be sent to prison has no record of arrest for sexual violence is scant assurance that he will not rape a woman who is locked in a cell with him.

          Men don’t belong in women’s prisons. Period.

          1. People don’t necessarily get sent to prison because they are dangerous. Many crimes do not involve physically or sexually harming another person.

            If you are saying that it is unsafe for any female to be in a secluded location with any male, regardless of other circumstances, that is demonstrably false. Certainly women (cis and trans, by the way) are at a greater risk of violence from men, and steps need to be taken to protect them. But that does not mean that every male is a danger to every female or every woman.

            Complex situations involving the safety of many persons require nuanced approaches, not simplistic ones like yours. As I said in another post, I prefer a case-by-case basis. However, given that being bigoted towards trans people seems to be your greatest priority here, I don’t imagine that I could convince you to change your mind.

            1. Jake, the biggest problem is false signalling. It is claimed that 0.1 % of the population trans identifies. If the rare bona fide XY-trans person already living as a woman goes to prison for, say, bank fraud and worries he will be at risk of assault in the men’s prison, then the Corrections Dept. can assess his case, with great skepticism, for which prison he goes to. Protective custody is one option. But if a man recently convicted and awaiting sentencing, or already in a men’s prison, suddenly declares he is a woman, we should assume he is lying and ignore his claim on its face. You are a fool if you sincerely think such a claim should be given any credence at all. If you are dissembling for ideological advocacy purposes I’m OK with that.

              My bigoted view is that society, not the individual, determines what someone’s sex is when we must for the safety of people we put in vulnerable positions. And the way we determine it is the old-fashioned way.

              1. Leslie, I’m glad you’re open to some nuance on this topic. In the two examples you provide, I would probably conclude that the former go to a woman’s prison and the latter go to/stay in a men’s prison – as I said before, a case-by-case basis is the best approach.

                As a bit of nitpicking, I hope that society doesn’t determine one’s sex – I would argue that biology determines sex, identity determines gender, and society determines the criteria for where inmates go in such a way that maximizes the safety of all involved.

                Also, I can assure you that I am not dissembling. There is little reason for me to lie here, where free speech is encouraged and progressive values often receive a less than warm reception.

        2. As a hypothetical, under this logic, how would you house a cis woman inmate who sexually assaulted another woman? Or, for that matter, a cis man inmate who sexually assaulted another man?

      2. I’m sorry I don’t understand that argument. If somebody rapes a woman and you put them in a cell with a woman, that they identify as a trans woman doesn’t change who they raped or who their cell mate is.

        Is this an argument that the pro-trans-women-in-women’s-prisons lobby is actually making? i.e. that a convicted rapist identifying as a trans woman means they are not a danger to women in spite of their proven track record in that regard.

    1. I think the protection would have to be wider than a single cell. Prison rapes and other attacks are frequently done not by one’s own cellmate but by other prisoners during the free time when the cell doors are unlocked and prisoners can visit each other’s cells.

      You might need an entire cell block or prison wing to achieve the required protection, unless we’re talking about a SuperMax prison where everybody’s effectively in lockdown all day long. Depending on the details, that might not be economically viable.

      Alternatively, the men who want to move to womens’ prisons may need a different regime so they’re locked up when the women are out and vice versa. But of course, they would consider that illegal discrimination because “women are women”.

      1. Well I was trying to be *somewhat* practical. You are right, however even just the ‘no cellmate’ rule would likely require an increase in resources which few Americans would want to pay for.

      2. You’re overlooking that men seek to go to women’s prisons in order to have access to biological women.. They and the ACLU will fight any administrative arrangement that thwarts those goals.
        “We went through all that court stuff and you’re telling me I still can’t shower wif the bitches? The fuck good are you, lawyer-man?”

        1. Actually, I think the majority of men who seek access to women’s prisons do so because they perceive it will be a safer environment for them. I do have some sympathy because I think, if you are a trans woman, you may well be at increased risk of physical and sexual violence in a prison for males.

          The above is an argument for separating trans women and other males, but it isn’t an argument for putting them in with the females, especially if they have been put in prison because they sexually assaulted a female.

  4. If a trans woman has lived openly as a woman for some time prior to incarceration, and is on hormone treatment at minimum, I could support incarceration in a woman’s prison. But the incentive to lie about your gender identification is particularly high when it comes to prison. Who wouldn’t prefer to be in a prison with women than with men? Simple self-identification isn’t enough.

    I think prison wings for trans-identifying prisoners, separated from the main population, is the simplest solution.

    1. I generally agree that placement of trans prisoners should be decided on a case-by-case basis with several criteria (ex. their preference, how long have they identified as trans, how have they transitioned, what have they been convicted of, etc), and that separate wards should be provided for matters of safety. Though I am not sure whether the current prison system is equipped for that.

      Which brings me to my second point. I would argue that the long-term solution should be prison reform on a large scale. If the major concern is that men are falsely claiming to be trans women in order to escape the horrors of men’s prisons, we should work to remove or at least minimize those horrors (for all prisoners of course, not just men). Prison should be a place for rehabilitation or at least containment, not a torture chamber where society unleashes its repressed sadism.

    1. One of WoLF’s favorite things to attack is the protection of gender identity under title IX. I really doubt one could successfully argue that they aren’t anti-trans, given that they are explicitly working to legalize discrimination against trans people.

      1. Can you be a little more specific? Because if the discrimination you’re talking about involves competing in women’s sports, then I agree with them.

      2. They are not working to legalize discrimination against trans people; they are advocating for women’s rights based on our ability to discriminate male from female.

    2. I’m no lawyer, but legally I think it counts as opinion, and so is protected on First Amendment grounds. I’m not familiar with WoLF, so it is possible they actually are what I would consider anti-trans, but my experience is that today, questioning or disagreeing with any TRA argument at all or disputing current gender ideology will likely get you called anti-trans, a hater, or a transphobe. It doesn’t matter at all that you accept trans people, think they should be treated with respect just like everyone else, and support housing and employment anti discrimination laws for them. Pointing out, for instance, it is unfair and sometimes unsafe to allow pubescent males to compete in women’s sports, despite biology clearly supporting the issue, will get you called anti-trans. Same here – even though functional male prisoners are an obvious risk to female prisoners, you aren’t supposed to think about it or mention it.

  5. The ACLU-endorsed doctrine that sexual identity is established by simple announcement reminds me of what used to be called the “anti-psychiatry” movement of the 1960s/70s. Remember that? Following such theorists as Michel Foucault and R.D. Laing, the fashion pronounced that there was no such thing as mental illness; instead, psychotic behavior and speech was a valid, if enigmatic, expression of personal lived experience. This craze (if I may use the word) blew over, but not before it contributed to the considerable defunding (if I may use that word) of state mental institutions. These institutions were markedly curtailed in the following decades, and their patients released into the community—where local mental treatment facilities were funded less and less adequately. The outcome of this trend can be observed today on the streets of many cities, particularly on the west coast.

  6. Possibly the most egregious example of Diana’s axiom, or whatever it was called, that whenever the rights of cis women come up against transactivism, then cis women will lose (sorry, I don’t remember the term exactly).

  7. A bit tengentially – here is Carole Hooven dunking all over Fuentes and his sex is not a binary thing.

    And she also links to the study used by Fuentes to bolster his claim

    “Many issues here. In the Sax ‘02 Fuentes links to, the actual “intersex” % is .018, not .2. & almost all of them are CAH (clearly female). So his 280k/140M # is way off. Also says sex can’t be determined by a “penis vs labia” method, which is not a thing.”

    How common is intersex:

    1. Colin Wright called it “the clownfish argument on steroids”. Pretty sure he picked the “on steroids” metaphor on purpose.

  8. Pass stupid, ill-thought-out legislation and this is what you get. The lackadaisical shoddiness of state-level legislation, of all kinds and on all topics, is an ongoing scandal, yet the 10th amendment ensures that its remit will only grow and grow.

  9. Speaking of biological differences, it just came out that AI can tell a person’s race now, just from examining x-rays, with over 90% success rate.

    [T]he research raises the unsettling prospect that AI-based diagnostic systems could unintentionally generate racially biased results. For example, an AI (with access to X-rays) could automatically recommend a particular course of treatment for all Black patients, whether or not it’s best for a specific person. Meanwhile, the patient’s human physician wouldn’t know that the AI based its diagnosis on racial data.

  10. It sort of boggles the mind. A pretty significant portion of the rules of civilizations were developed to address the issue of how to prevent the worst sort of men from abusing women. Certainly, it has always been universally recognized and observed that men and women are different, and there is a need to design rules to ensure the safety of women. Scientific advance, and the rise of more complicated societies has only confirmed those observations.

    I understand how people operating from the perspective of “Queer Theory” are motivated. They are using the issue to disrupt capitalism and western society. They do not actually seek to better the lives of trans individuals, or even to normalize their presence. So for them, the prison issue is perfect. Putting a male sex offender in a women’s prison, or even better, a facility for female juveniles, is certainly going to be disruptive.

    Another group, active in this case, is led by actual trans persons. They seem to be true believers, although their basic beliefs are clearly and obviously untrue. There are a lot of trans people who truly believe doctors in the delivery room actually assign sex to babies, and that when the doctor gets it wrong, the child grows up in the wrong body. Literally, a child develops as a female, with breasts and a uterus, because the doc assigned them female, and that is what they were raised to be. If the doc had made the correct choice, the child would have developed male characteristics.

    Where the ACLU actually stands on this is hard to figure. They have a long history of protecting women. One of their pages on that history uses the word “women” 60 times. Now they seem to be arguing that women don’t even exist, except as a voluntary choice of identity. Certainly, in a situation where a woman in jail for drug possession finds out that her new cellmate is a 300 pound serial rapist with a beard who wants to be called “Shirley”, the person in need of protection is not Shirley.

    1. But…how would putting a male sex offender in a facility for female juveniles disrupt capitalism and ‘western society’? Is the free market built upon a foundation composed of fixed gender binaries? For that matter, does queer theory even concern itself with capitalism (at least primarily)? This smells a lot like the claims that ‘Critical Race Theory’ pushes forward Marxism, even though one focuses on race and the other focuses on class.

      Also, regarding your statement: “There are a lot of trans people who truly believe doctors in the delivery room actually assign sex to babies, and that when the doctor gets it wrong, the child grows up in the wrong body. Literally, a child develops as a female, with breasts and a uterus, because the doc assigned them female, and that is what they were raised to be.”
      Please provide evidence for this nonsensical claim. I have never encountered anyone, trans or otherwise, who believes this. Trans activists generally understand the difference between natal sex (assigned sex at birth) and gender (socio-cultural beliefs and expectations of individuals based on their natal sex).

      1. Boston area charter schoolteacher Ray Skyer (who is transgender) told a first-grade class, “So when babies are born, the doctor looks at them and they make a guess about whether the baby is a boy or girl, based on what they look like. Most of the time that guess is 100% correct; there are no issues whatsoever, but sometimes the doctor is wrong; the doctor makes an incorrect guess. When a doctor makes a correct guess, that’s when a person is called cisgender. When a doctor’s guess is wrong that’s when they are transgender.” Skyer said this on a Zoom call. The video appeared on Libs of TikTok and spread all over the Internet and cable news outlets.

        1. I remember seeing that video. Obviously the explanation is simplified, as it is intended for first graders. However, my interpretation was that Skyer was discussing gender identities and not biological sex. The doctor guesses the infant’s eventual gender identity through examining genitalia, and usually the guess matches the person’s eventual gender identity (cis), but sometimes it does not (trans).

          The most uncharitable interpretation I can come up with is that Skyer was saying that the doctors may get the biological sex wrong, which I suppose could happen in some intersex cases. I don’t see an interpretation in which Skyer is claiming that the doctor’s ‘guess’ determines the sex of the infant on a biological level.

      2. You have to admit that sending an adult male rapist to a female juvenile facility is going to be literally disruptive. But the link to capitalism is more complicated. It all comes down to sexual norms as an instrument to uphold bourgeois power structures. All of what are considered sexual and gender norms, were conceived as part of a system to enforce “voluntary subjugation to a dehumanizing labor system”.
        Importantly, it has to stay transgressive in order to be revolutionary. Once the issue you are promoting stops being disruptive, you need to go further.
        I don’t imagine most activists actually think in such terms, or even feel particularly revolutionary. But the folks who inspired these movements tended to think in exactly those terms, and many elements of revolutionary policy, prominent in the DDR in the 60s and 70s, keep showing up today. If you read some of the original revolutionary publications, it is hard to not see that much of what we are experiencing today is essentially the same theories, freshened up a bit, with different catchphrases and slogans.

        As to the biological impossibilities, I have actually spoken to people (plural) who believe exactly that and more. It is not as though people believing absurd things is unprecedented. Religious people tend to hold lots of beliefs that don’t appear rational to the rest of us, and do not stand up to minimal scrutiny or examination.

        1. I agree that sending an adult male rapist to a female juvenile facility would be literally disruptive and not a move I would support. I just thought that revolutionary queer theorists and Marxists would sooner target those in power (ex. politicians and CEOs) than cause disruptions which harm the disenfranchised and would make their cause less popular.

          I must admit that I have not read the original revolutionary publications which you are referring to. If possible, could you recommend one or a few?

          Absurd beliefs are definitely common, no argument. They seem to be devouring the Republican Party, for example. But the idea that a doctor’s declaration of natal sex biologically changes an infant’s body and development is not one that I have seen in mainstream trans advocacy. Could you provide an example of this idea being propagated?

          1. My quote was from “Revolution der Erziehung” Hille, 1971. Not to be confused with the Nazi treatise on education by the same title, published in 1938.

            You can find foundations of the theory in Michel Foucault’s “History of Sexuality”. If you can locate copies of the magazine Kursbuch, especially volumes 16 and 17, from 1969, there are a number of articles on the basis of the philosophy. But the latter is fairly grim stuff.

            I do not claim to have a comprehensive knowledge of the subject, not at all. But I have been exposed to enough of it that much of what we are seeing in woke philosophy today was also evident in much of the writings of that time and place. Deconstruction, lived experience, decolonizing, that language preserves systemic power, It all seems to be there, even though the focus was not trans identity in particular. They were more focused on “love has no age”.

            Regarding the biological absurdity, I can cite no written accounts. It is not a subject I choose to be immersed in, but I am in no position to ignore it, either. The beliefs I related were expressed to me by teenage trans persons in face to face discussions. Smart kids, who are reasonably skeptical on other subjects. But you cannot reason someone out of a belief that they did not arrive at through reason, or something like that.
            The puzzle, for parents of trans kids, is to urge them towards reasoning it out for themselves, rather than confronting what are essentially their religious beliefs. It is similar to what happens when your kid is in a cult. Part of a successful cult’s programming is to teach them to shun those who appear critical of their beliefs.

    2. According to a report broadcast by WOLF from a former prison guard—reasonable-sounding guy, knew not to speculate beyond what he had observed on the job,—women inmates are told only that “transwomen” are going to be housed with them. These women are often poorly educated with English as a second language. He said that to them, a transwoman is a recognizable woman who has had some kind of surgery “down their” but not sure exactly what. These women are dumbfounded to discover that “Shirley” stands up to pee and gets erections when she undresses.

  11. Within the last few months on NPR (atc I think) there was a story about a woman (preference not indicated) prisoner who became pregnant as a result of impregnation by a still equipped “trans”female. This was, I believe in NY.
    So who’s the father? The State? They certainly should be financially liable.

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