This Article will address the “unfair advantage” the male-to-female athletes have over their females in sports that require a high degree of strength and power. Mixed Martial Artist Fallon Fox is a an ideal example for this issue because a high contact sport high intensity and “hyper-masculine” like Mixed Martial Arts is a good demonstration to illustrate the unfair advantage newly identified females have over their opponents after being a male, physically and legally in society for an extensive period of time.
Part II of this article will summarize the policies governing transgender athlete participation in Sport. Further, this section will note some of the tests that sports governing bodies use in determining whether a transgender athlete should be identified in athletics as her newly legal gender.
Part III will discuss the difference in cross-sectional musculature, hormone composition, and DNA relevant to both males and females, and discuss why even hormonal therapy and other forms of surgery that will aid in a “gender change” will still leave a natal male with a far superior athletic advantage over a male; especially done after a certain age. This article will conclude by contending a modification in the current guidelines for depicting whether a transgender should be allowed to participate.
Teresa Brugliera, Offender ID W47605, is serving a life sentence in a Massachusetts prison. He has court-ordered treatment for his gender identity disorder.
On October 5, 1997, Dezeray Marie Roblero-Barrios (real name Wesley Ross Mullins) attempted to sexually assault a six-year-old boy in a K-Mart restroom. On February 9, 1998, Barrios pleaded guilty to second-degree assault and attempted second-degree criminal sexual conduct in relation to this incident. He was sentenced to serve a total of 36 months imprisonment.
Barrios was released from prison on October 4, 2000, and was transferred directly to the custody of the Minnesota Sex Offender Program (MSOP) pending the outcome of a petition to commit him as a sexual psychopathic personality (SPP) and as a sexually dangerous person (SDP). In June 2001, the district court committed Barrios indeterminately as a sexually dangerous person. In July 2001, Barrios was sent back to prison for violating his parole by assaulting a staff member at MSOP. He returned to MSOP on April 19, 2005. During his commitment, Barrios legally changed his name from Wesley Ross Mullins to Dezeray Marie Roblero-Barrios because he says he feels like a woman trapped in a man’s body.
Besides the assault at K-Mart, Barrios has admitted to sexually assaulting four other children. At age 13, he sexually molested a five-year-old relative. At age 14 or 15, he sexually assaulted an 11-or 12-year-old girl who he was babysitting. At age 15, he had anal intercourse with an eight-year-old boy. At the time, Barrios was the boy’s Sunday-school teacher, and he repeatedly molested the boy during a two-year period. At age 22, he sexually assaulted a 15-year-old girl several times after having consensual sex with her once. Before entering prison, he began a sexual “relationship” with a 14-year old boy and maintained this relationship while in prison. Barrios has recanted many of these stories but has consistently maintained a lack of remorse for his offenses. For instance, he has claimed that the five-year-old initiated the abuse by touching his penis, and that his abuse of the 14-year-old was not a sexual offense because it was a “love relationship.”
On July 25, 2007, a special review board heard Barrios’s petition for full or provisional discharge from civil commitment. Dr. Elizabeth J. Barbo, Ph.D., L.P., Director of Psychology at MSOP, prepared an evaluation for the board’s consideration. The State Operated Forensic Services also prepared a “Risk Appraisal” for the board’s review. The appraisal placed Barrios in the group with the highest rate of sexually violent recidivism, and indicated that he had a higher-than-average risk for violent recidivism. The review board found that Barrios was not participating in treatment because he could not control his behavior and was often placed in isolation as a consequence. At the time of this hearing, Barrios had pending felony assault charges. Following the recommendation of the review board, the commissioner denied Barrios’s petition for provisional discharge, and Barrios appealed.
On March 21, 2008, a judicial appeal panel heard Barrios’s appeal. Barrios testified that he was seeking provisional discharge, that he had not completed sex-offender treatment, and that he would like to seek treatment at Alpha House or the Pride Institute if he were provisionally discharged. He expressed concern that he would not be able to receive therapy for his gender identity issues if he remained at MSOP. He also testified that he pleaded guilty in August of 2007 to a felony assault, that none of the programs in his discharge plan had actually accepted him, and that he did not have the assistance or approval of his case manager or MSOP staff members in creating the plan.
The appeal panel concluded that Barrios had not established a prima facie case that he was capable of making an acceptable adjustment to open society, finding he continued to need treatment in the MSOP setting, and that his provisional discharge plan did not adequately protect the public. Therefore, it granted the state’s motion to dismiss and affirmed the commissioner’s order denying Barrios’s release. Barrios appealed to this court.
The panel also considered 18 exhibits, none of which recommended that Barrios be released, and most of which characterized him as impulsive, violent, unresponsive to treatment, and lacking remorse or insight into his behavior. A forensic psychiatrist, Dr. Robin R. Ballina, M.D., J.D., prepared a “Risk Appraisal” for Barrios in June of 2007. In the appraisal, she described Barrios’s lack of remorse and his “generally nonparticipatory” and “disruptive” behaviors in his groups. A summary of Barrios’s history in the prison system lists about 40 behavioral incidents between 1999 and 2005, and ten such incidents at MSOP from 2000 to 2001 and 2005 to 2006. Nearly all of these incidents involved threatening or assaultive behavior, and some involved sexually inappropriate behavior. Barrios has had 11 more documented rule violations since January 2007, including the fourth-degree assault charge and exposing his genitalia to staff members at MSOP. Dr. Barbo’s report concluded that “[i]t is the opinion of his treatment team and this examiner that [Barrios] continues to require the highly structured and supervised setting of an inpatient placement . . . Mr. Roblero-Barrios’s petition for a provisional discharge . . . is currently without the support of the MSOP treatment team.”
Based on the testimony and exhibits introduced, the appeal panel made the following findings: “To date, no programs have indicated a willingness to accept him and acceptance is unlikely until it is recommended by the MSOP treatment team”; “[h]is treatment team did not assist with creation of the discharge plan and they do not support it at this time”; he “needs to complete chemical dependency treatment”; “MSOP does not offer treatment for Gender Identity issues and Mr. Roblero-Barrios will have to defer that until he is released to the community”; “[a]s an untreated sex offender, [he] presents a high risk to reoffend”; and Barrios “has an extensive history of assaultive, disruptive behaviors, attempted assaults, sexually inappropriate conduct, and threats while hospitalized in the MSOP.”
All of the appeal panel’s conclusions are supported by Barrios’s own testimony: he has not finished any treatment for his pedophilia and chemical dependency, he continues to engage in assaultive behavior, no program has accepted him, and no program is likely to accept him because his treatment team does not believe he is ready to be discharged. Barrios failed to provide the panel with any explanation for why he is no longer dangerous to others or in need of in-patient treatment. Rather, he merely expressed his desire to attend different programs. All of the testimony and exhibits led the panel to properly conclude that Barrios failed to make a showing that he was ready to be provisionally discharged.
Lee Gustafson entered no contest pleas to one count of repeated sexual assault of a child and one count of second-degree sexual assault of another child. The court imposed concurrent sentences totaling four years’ initial confinement and five years’ extended supervision. Instead, citing new factors, he requested a reduced sentence of two years, six months’ initial confinement and six years, six months’ extended supervision. The circuit court denied the motion without a hearing and denied Gustafson’s motion for reconsideration. Gustafson appealled, contending that the sentencing court erred by not considering his diagnosis of gender identity disorder as a factor that would apparently justify a reduced sentence.
The appellate court rejected his arguments, finding that the lower court appropriately considered the seriousness of the offenses, Gustafson’s character and the need to protect the public. The court noted that Gustafson took advantage of the young victims placed in his trust, and it appropriately imposed a sentence to deter him from victimizing other children. The court concluded it would unduly depreciate the seriousness of the offenses to place Gustafson on probation. Gustafson notes his lack of a prior record, his admission to the crimes, the steps he took to change his behavior before involvement of the legal system and his age at the time the offenses occurred. All of these mitigating factors explain Gustafson’s relatively lenient sentence. The court could have imposed consecutive prison terms totaling 100 years’ imprisonment. Gustafson asserts intensive treatment provided only in a prison setting is not necessary and the court placed too much weight on the seriousness of the offense and the need to protect the public. The weight to be given these factors is solely within the sentencing court’s discretion.
Gustafson’s postconviction diagnosis of gender identity disorder is not a new factor. A new factor is a fact highly relevant to the imposition of sentence, but not known to the trial judge at the time of sentencing, either because it was not then in existence or because it was unknowingly overlooked by all of the parties. Gustafson’s gender identity issues were facts in existence at the time of sentencing and were addressed in the presentence investigation report. Gustafson was also personally aware of these issues. Therefore, the gender identity disorder was not overlooked by the sentencing court and was not unknowingly overlooked by all of the parties. Gustafson’s motion does not identify anything about a formal diagnosis occurring after sentencing that would be more meaningful to the imposition of sentence than the information already provided at the time of sentencing. The sentencing court did not consider Gustafson’s gender identity issues to be either an aggravating or mitigating factor. The disorder, whether formally diagnosed or not, was not highly relevant to the sentences imposed.
The Connecticut Department of Insurance issued a Bulletin directing insurance companies to ensure that there is no discrimination against insured individuals with gender dysphoria and ensure that individuals are not denied access to “medically necessary care because of the individual’s gender identity or gender expression.”
The case concerned the failure to introduce implementing legislation to enable a female to undergo sex reassignment surgery and change her sex identification in official documents.
The Court held that there had been no violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention. While the applicant had suffered understandable distress and frustration the circumstances were not of such an intense degree, involving exceptional, life-threatening conditions, as to fall within the scope of this provision.
The Court further held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. Lithuanian law recognised transsexuals’ right to change not only their sex but also their civil status. However, there was a gap in
the legislation in that there was no law regulating full sex reassignment surgery. This legislative gap had left the applicant in a situation of distressing uncertainty with regard to her private life and the recognition of her “true identity.” Budgetary restraints in the public health service might have justified some initial delays in implementing the rights of transsexuals under the Civil Code but not a delay of over four years. Given the limited number of people involved, the budgetary burden would not have been unduly heavy.
The applicant complained about the alleged unfairness of German court proceedings concerning his claims for reimbursement of sex reassignment measures against a private health insurance company. He further considered that the impugned court
decisions had infringed his right to respect for his private life.
The Court held that there had been a violation of Article 6 § 1 (right to a fair hearing) of the Convention. The German courts should have requested further clarification from a medical expert. With regard to the Court of Appeal’s reference to the causes of the
applicant’s condition, it could not be said that there was anything arbitrary or capricious in a decision to undergo sex reassignment surgery and the applicant had in fact already undergone such surgery by the time the Court of Appeal gave its judgment.
The proceedings, taken as a whole, had not satisfied the requirements of a fair hearing. The Court also held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. Since gender identity was one of the most intimate aspects of a person’s private life, it appeared disproportionate to require the applicant to prove the medical necessity of the treatment. No fair balance had been struck between the interests of the insurance company on the one hand and the interests of the individual on the other.
The case concerned the refusal by Max Schlumpf’s health insurers to pay the costs of his sex-change operation on the ground that he had not complied with a two-year period before gender reassignment surgery, as required by the case-law as a condition for payment of the costs of such operations.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. The waiting period had been applied mechanically without having regard to the age (67) of the applicant, whose decision to undergo an
operation was likely to be affected by that delay, thus impairing his “freedom to determine his gender identity.”
The Dutch Senate passed a new law to allow people to change the “gender” marker in their official identity papers to their preferred gender. The law does away with previous requirements for taking hormones and surgery, including irreversible sterilization, though it is a step short of complete personal autonomy for the decision. Thus, the Netherlands will allow any person to “change their gender” (sic) on identity documents with a simple declaration, thus obliterating the category of “sex” as a meaningful legal category.
According to Human Rights Watch, which has “researched” – and fundraised off of – this issue, in 1985, the Netherlands was among the first European nations to adopt legislation granting “transgender people—individuals whose gender identity differs from the sex assigned them at birth—legal recognition of their gender identity, albeit under onerous legal conditions.” The law allowed trans people to “change their gender” on official documents only on condition that they have altered their bodies through hormones and surgery, and that they are permanently and irreversibly infertile. This is what is known as “a legal sex change.”
“These requirements routinely leave trans people with identity documents that do not match their deeply felt gender identity, resulting in frequent public humiliation, vulnerability to discrimination, and great difficulty finding or holding a job,” according to Human Rights Watch.
According to Human Rights Watch, the “conditions imposed by article 1:28 of the Civil Code violate transgender people’s rights to personal autonomy and physical integrity and deny transgender people the ability to define their own gender identity,” deemed by the European Court of Human Rights to be “one of the most basic essentials of self-determination.”
No word from Human Rights Watch about the rights of Women to have space away from the male-bodied who identify as “Women.”