Episode 46: A Surprise Witness for the Defense

“The defense calls Profesora Castillo to the stand!” Senator Travis pivoted to face her.

Senator Castillo frowned and crossed her arms.

“You want to call counsel for the state to the witness stand?” Judge Connor was incredulous.

“The defense desires to call Profesora Castillo as a witness,” Senator Travis explained. “Of course, the only question here is what Dr. Andrews taught and whether it conflicts with the GAIA Act. We recognize what Profesora Castillo says as a witness would not be very valuable on questions of fact. We think, however, there are other questions involved. We have already had the testimony of President Buchmann as to the nature of gender affirmation as described in the GAIA Act. However, the defense has not had an opportunity to put our own views on the subject and nature of gender affirmation before the jury’s consideration. We believe so-called gender-affirmation is harmful, and we wish to question a subject matter expert on gender affirmation to prove our point.

“Profesora Castillo was recently granted the honor and dignity of the ‘Doctor of Philosophy degree, Honoris Causa, in Social Justice and Gender Studies,’ and received an appointment as ‘Adjunct Professor of Social Justice and Gender Studies.’ She has been teaching classes, delivering the ‘Zebulon and Mindswell Winthrop Endowed Lectures in Moral Philosophy’ at your local university expounding upon gender affirmation. So, in my mind, I think there can be no question but that she is eminently well-qualified to testify upon these matters.

“Your honor has declared that the defense may present an expert witness, provided the state regards that witness as ‘qualified.’ If the state wishes to acknowledge that Profesora Castillo is NOT qualified to testify as to the nature of gender affirmation as described in the GAIA Act, why then of course the defense would accept that decision, and we would withdraw our request for her to testify.

“Even if your honor chooses to ask the jury to disregard Profesora Castillo’s testimony, we still want to take her testimony for the purposes of our record, so we wish to call her now.”

“This is highly irregular,” the district attorney rose to his feet. “There is no provision in the law or in the procedures of this court for an attorney to be called to testify as a material witness. In matters where the attorney is a party or witness to the issue at hand, that attorney must withdraw from the case to avoid a conflict of interest.”

Judge Connor sat back and pondered the request. “Do you think you have a right to her testimony or evidence, Professor?”

“Your honor HAS granted the defense the right to call an expert witness acceptable to the state,” Senator Travis pointed out. “Profesora Castillo would be testifying as an expert witness,” he continued, “not as a witness of fact to the matter before your honor. The defense will freely waive any concerns over conflicts of interest, if only the state will confirm that Profesora Castillo’s expert qualifications are acceptable. The relevant question here hinges upon whether or not the state is willing to accept Profesora Castillo as a credible expert witness. If she does not feel herself qualified, or if she lacks the courage to be cross-examined in open court on her expertise, the defense will respect that decision.”

“If you ask her about any confidential or privileged matter,” Judge Connor advised, “I will protect her, of course.”

“I do not intend to do that,” Senator Travis affirmed.

“Then,” Judge Connor ruled, “I will allow Profesora Castillo to decide for herself whether she is qualified and willing to serve as your expert witness.”

“If your honor please,” Senator Castillo rose, “I insist that Professor Travis be put on the stand, as well!”

“You may call anybody you desire,” Judge Connor advised, “and ask them any questions you wish.”

“Then, where do you want me to sit?” Senator Castillo asked.

“Profesora Castillo,” Judge Connor cocked his head and looked at the senator with surprise, “you are not objecting to going on the stand?”

“Not at all,” Senator Castillo affirmed, adopting a power pose with one fist on her hip.

“Does the defense want Profesora Castillo sworn in?” Judge Connor asked.

“No,” Senator Travis answered. “I take it for granted you will tell the truth, Profesora.”

Senator Castillo confidently strode to the witness stand and took her seat.

“Let me begin,” Senator Travis flipped the page of his legal pad and walked over to stand next to Senator Castillo in the witness box, “with a simple question to which President Buchmann was unable to provide a simple answer. What is a woman? Could you define that for us, please?”

“No, I can’t provide an expert definition,” Senator Castillo answered smugly. “I’m not a biologist.”

“You’re not a biologist?” Senator Travis stepped back in surprise. “So, you acknowledge that being a woman is, in fact, a matter for the biological sciences instead of so-called gender studies?”

“No,” Senator Castillo replied, “from my gender studies perspective a woman is anyone who calls themselves a woman.”

“I should have known THAT was too easy,” Senator Travis smiled. “If I decided, then,” he asked, “that I felt I was a woman, that would make me a woman?”

“If you were sincere,” Senator Castillo replied, “and if you presented outward signs of your identification as evidence of your sincerity, then, yes.”

“Oh?” Senator Travis asked. “Outward signs? There are outward signs to tell when someone is a woman? What are those?”

“It depends,” Senator Castillo answered.

“On what?” Senator Travis asked.

“From the narrative, feminist, and anti-oppression frameworks I rely upon,” Senator Castillo explained, “we have to look to systems theory and understand that individuals are products of and in dialogue with our surroundings including our families, our broader culture, our workplaces, our nature, and our political climates.”

“Let me try a different approach,” Senator Travis flipped the page of his legal pad. “Are you a woman, and how do you know that?”

“I was assigned a woman at birth,” Senator Castillo began.

“Assigned?” Senator Travis interrupted her. “The doctors just flipped a coin and said, ‘Let’s call this one a girl?’ It wasn’t based on your genitalia and ultimately on biology?”

“I don’t happen to remember,” Senator Castillo answered haughtily. “Most times people when they’re born, they’re assigned a gender by the doctors.”

“On what do the doctors base that assignment?” Senator Travis asked.

“It’s based on genitalia,” Senator Castillo acknowledged. “Now, however, we know that sex and gender are SO MUCH MORE than just that crude binary picture. From the moment I was assigned a gender I was told these are the kinds of clothes you are going to wear, this is the kind of play that is acceptable, these are the colors and toys and activities you’re going to engage with, and that made me the woman I am today. We live in gendered worlds where there are certain imperatives that are placed on us about who we are and what we do based on how we’ve been gendered.”

“It has nothing to do with biology?” Senator Travis asked. “Nothing to do with the fact that you have XX chromosomes and a vagina?”

“It’s SO MUCH MORE complex than that,” Senator Castillo rolled her eyes at Senator Travis’s ignorance. “I learned THAT from transgendered women who tell me they may have a penis, but that doesn’t mean that’s who they are as a person. Genitalia doesn’t equal gender. Reducing women to merely genitalia and genetics, like Dr. Andrews did, is a gender identity non-affirmation microaggression.”

“Saying ‘women have XX chromosomes’ is a… ‘gender identity non-affirmation microaggression?’” Senator Travis raised an eyebrow.

“Sexuality is a continuum,” Senator Castillo pointed out, “not a binary. Even YOU guys recognize that.

“You have your ‘alpha’ males throwing their weight around and taking charge.

“Their lieutenants, the ‘bravos.’

“The ‘delta’ workers.

“The annoying ‘gamma’ know-it-alls.

“The ‘omega’ losers.

“The ‘sigma’ loners.

“It’s a spectrum.

“Not some kind of binary.

“There are many kinds of ‘males,’” Senator Castillo concluded.

“How many men in those socio-sexual categories can get pregnant?” Senator Travis asked. “Never mind. Let’s cut to the chase. You, a supposed expert in gender studies, can’t give me a straightforward definition for ‘what is a woman,’ can you?”

“The question ‘What is a woman?’ begs the question ‘What do you mean by IS?’” Senator Castillo pointed out, “because when you deal with fundamental reality and you pose a question, you have to understand that the reality of the concepts of your question when you’re digging that deep are just as questionable as the question of what you’re questioning!”

Senator Castillo shook her head in disbelief at Senator Travis’s stubborn refusal to comprehend the fundamental principles of intersectional feminist theory.

“Fine. Let’s ‘cut to the chase,’ if you like,” Senator Castillo agreed. “You’re asking me, ‘What is a definition for ‘woman’?’ I say,” she explained, “‘OK; there are some mysteries in that question.’

“What do you mean, ‘What?’

“What do you mean, ‘is?’

“What do you mean ‘a definition?’

“What do you mean, ‘for?’

“Only upon answering THOSE questions,” Castillo explained, “do we arrive at ‘what do you mean by, woman?’

“You say as the questioner, ‘Well, we already know what all those things mean, except ‘woman.’’

“I say, ‘No! If we’re going to get down to the fundamental brass tacks, we don’t know what ANY of those things mean.’”

“So, you’re saying the dictionaries are all wrong,” Senator Travis concluded, “and no one can actually define the term, ‘woman’? Or anything else for that matter?”

“I want to recognize that your entire line of questioning is incredibly transphobic,” Senator Castillo pointed out, “and it could expose trans people to violence by your failure to recognize and accept them.”

“Wow,” Senator Travis stepped back. “You’re saying I’m exposing people to violence by asking you to explain ‘What is a woman?’”

“I want to note ON THE RECORD that one out of five transgender people have attempted suicide,” Senator Castillo declared, “and…”

“Because of my questions?” Senator Travis asked. “We can’t talk about this and discuss it and try to reach an understanding of what’s going on?”

“Because denying that trans people exist, and pretending not to know that they exist…” Senator Castillo replied.

“Wait… I’m denying that…” Senator Travis interrupted.

“Are you?” Senator Castillo interrupted him in reply.

“…trans people exist…”

“Are you?”

“…by asking you…”

“ARE YOU?”

“…these questions?” Senator Travis powered through Senator Castillo’s attempt to derail his question.

“Do you recognize that MEN can get PREGNANT?” Senator Castillo countered.

“No, I don’t,” Senator Travis replied.

“THEN YOU’RE DENYING TRANS PEOPLE EXIST!” Senator Castillo proclaimed, throwing her hands up triumphantly and leaning back in her chair.

“And, that leads to violence?” Senator Travis asked. “Is this how you run your classroom when you give your ‘Zebulon and Mindswell Winthrop Endowed Lectures in Moral Philosophy,’ and you,” he referred to his notes, “you expound upon ‘the harmony of God’s grace and divine providence in human affairs?’ Are your students allowed to ask you questions?”

“Absolutely,” Senator Castillo assured him.

“So, if your students in your class question your pronouncements, you don’t accuse them of committing acts of violence like you’re doing here with me?”

“We have very productive discussions in my classes,” Senator Castillo declared.

“I’ll bet,” Senator Travis replied dryly.

“You should join,” Senator Castillo invited him. “You’d learn a lot, and YOU have a lot to learn.”

“Oh, I’ve learned a lot already today from this extraordinary exchange,” Senator Travis assured her. “So, pretend, if you will, that I’m one of your students and that you’re going to answer my question without accusing me of committing acts of violence for asking it, will you? Can you or can you not give me a definition for ‘what is a woman?’”

“I already have,” Senator Castillo declared defiantly.

Senator Travis shook his head no and stared at her. “If that question is too deep for you, let’s move on. How is it fair for a girl to compete in an athletic competition against a trans woman who has the overwhelming advantage of a stronger male physique?”

“Competition is a good thing,” Senator Castillo argued.

“It’s good that trans women are beating women in these competitions?” he asked. “By such wide margins that real women are hopelessly outclassed and cannot compete?”

“Saying, ‘real women’ is transphobic hate speech,” Senator Castillo insisted. “Trans women ARE ‘real women,’ and if they happen to raise the level of the competition, that just means that everyone has to work harder. Losing builds character.”

Senator Travis stared at her a moment as if not believing her answer. Then, he flipped the page to continue with another question. “How can we regard Dr. Andrews’s students as weak and vulnerable when they can have him thrown in jail for hurting their feelings?”

“Because they ARE weak and vulnerable,” Senator Castillo rolled her eyes again at Senator Travis’s inability to grasp the obvious, “and that’s why we have to protect them and fire virulent transphobes, like Dr. Andrews, and even throw him in jail, so he can’t hurt them.”

“This has gone on long enough, your honor,” the district attorney rose and broke his silence. “I have a public duty to perform under my oath, and I ask the court to stop this spectacle.”

“Senator Travis did not come here to try a case,” Senator Castillo declared. “He came here to attack and roll back transgender rights! I am here to defend them, and he can ask me any question he pleases!”

The judge looked at the district attorney, and then back at Senator Castillo. “The court defers to the Profesora,” he ruled. “The defense may continue.”

The district attorney sat down in disgust.

“Let’s talk about gender-affirming care, shall we?” Senator Travis reached back to the defense table, put down his legal pad and grabbed a folder. “Now, the other day we heard from President Buchmann who testified how this gender affirmation business begins. Of course, it all starts with a confused young person not happy with their body and their biological sex, and…”

“Unhappy with the gender they were assigned at birth!” Senator Castillo corrected him indignantly.

“Very well,” Senator Travis corrected himself. “Unhappy with the gender they were assigned at birth… based on their biological sex. On the other hand, we have a teacher, like Dr. Andrews here, who is supposed to conform his teaching in such a way as to not hurt the confused young person’s feelings, and who must use whatever name and whatever set of pronouns that young person desires, and pass them along to professionals for further gender-affirming care. Do I have that right?”

“Using one’s chosen pronouns and avoiding deadnaming them are the least a teacher should do,” Senator Castillo argued. “In fact…”

“Fine,” Senator Travis interrupted her. “Let’s go on from there. After the ‘social transition’ of new name, and new pronouns, and new appearance, and new clothes, and new haircut… then comes the next step of so-called ‘gender-affirming care’ to treat this rapid-onset gender dysphoria: the administration of hormones…”

“Oh, yes,” Senator Castillo crossed her arms, “this so-called ‘rapid-onset gender dysphoria,’ you keep pushing based on the Littman study. Are you aware that the Littman study just looked at PARENTS’ perceptions, not at transgender youth themselves? Studies of transgender ADULTS show their awareness long preceded their coming out to parents and peers. ‘Rapid-onset gender dysphoria’ is a myth.”

“So, these studies YOU mention,” Senator Travis replied, “talked to transgender adults who weren’t among the 60-90% of rapid-onset gender dysphoria afflicted teens who eventually desist. I want to ask you about the so-called gender-affirming care to treat rapid-onset dysphoria, specifically the administration of hormones that disrupt the natural process of puberty…”

“They merely put the normal process of puberty on hold,” Senator Castillo interrupted, “like hitting a pause button.”

“Do you know what hormone blocking drug is typically used?” Senator Travis asked.

“I’m not a doctor,” Senator Castillo replied.

“You’re not a doctor,” Senator Travis observed. “Well, we go to trial with the expert witnesses…” he glanced at the judge. “Never mind. Fortunately, we have the expert testimony of President Buchmann who identified the hormone-blocking drug as ‘Lupron.’ I take it you do not deny or contradict her testimony?”

“I’m not a doctor,” Senator Castillo repeated.

“You’re not a doctor,” Senator Travis repeated back. “Are you aware,” he asked, “that this is the same drug administered to rapists who undergo chemical castration? That so-called ‘gender-affirming’ care by way of puberty blockers means chemical castration?”

“It’s NOT chemical castration!” Senator Castillo insisted.

“It uses a chemical castration drug, doesn’t it?” Senator Travis asked.

“It’s NOT the same thing,” Senator Castillo maintained. “Those words are a gender identity non-affirmation microaggression. Those words are a hate crime.”

“We call it ‘chemical castration’ when we administer Lupron to rapists,” Senator Travis pointed out, “but when we administer the exact same drug to children, somehow it’s no longer ‘chemical castration.’ Somehow ‘chemical castration’ becomes ‘gender-affirming care.’ Is that what you’re claiming?”

“Objection, your honor,” the district attorney rose again. “Asked and answered. Not to mention argumentative, and lacks foundation. The witness has already pointed out she is not a doctor. I object to the counsel for the defense badgering his own witness!”

“Your honor,” Senator Travis replied, “we are submitting testimony on gender affirmation from the state-approved expert witness on the subject as previously ruled admissible by the court. I assume every lawyer should understand that the defense has every right to cross-examine a hostile witness.”

“Under state law,” the district attorney pointed out, “if you put a witness on and she proves to be hostile to you, you will have to make an affidavit to the effect that you are surprised by the witness’s testimony.”

“Is there any way by which a witness can make an affidavit,” Senator Castillo asked the judge, “that the attorney is ALSO hostile?”

“I am not hostile to the witness, your honor,” Senator Travis insisted. “I am hostile to her views. I condemn the sin and try to forgive the sinner, but forgiveness is not possible where there is no repentance.”

“Your honor,” Senator Castillo insisted, “I think when Senator Travis asked me about chemical castration, I should be allowed to answer the question!”

The judge looked at the district attorney and then back at Senator Castillo. “Very well, Profesora. You may answer the question.”

The district attorney shook his head and sat down in resignation.

“Gender-affirming medical care in the form of puberty blockers is NOT chemical castration,” Senator Castillo insisted, “and to claim otherwise is hate speech. THAT’S my answer.”

“Even though this ‘puberty-blocking’ drug, Lupron, is the same drug administered for chemical castration?” Senator Travis asked.

“They may use the same drug,” Senator Castillo conceded, “but it’s NOT the same thing!”

“Unfortunately,” Senator Travis noted, “we haven’t had the opportunity to hear from some of the victims of these procedures about the long-term side effects, so let’s focus on the financial side things. Are you aware that the manufacturer of Lupron paid an $875 million fine for fraudulent sales and marketing practices with respect to Lupron?”

“Ancient history,” Senator Castillo dismissed the argument. “That was twenty years ago.”

“Do you think the makers of Lupron and other so-called gender-affirming medications might have a financial interest in promoting the use of their chemical castration drug in emerging markets, like for treating rapid-onset gender dysphoria?”

“There is no such thing as ‘rapid-onset gender dysphoria’ and it’s not ‘chemical castration,’” Senator Castillo insisted. “Those are both hate speech.”

“Do the makers of drugs,” Senator Travis kept pressing, “have an economic interest in increasing the use of their products?”

“I’m not an economist either,” Senator Castillo declared.

“You’re not an economist either.” Senator Travis flipped to a new page in his folder. “Let’s talk about gender-mutilating surgeries, and the incentives…”

“Objection!” Senator Castillo declared. “Those surgeries are gender-AFFIRMING. Calling them gender-MUTILATING is hate speech!”

“Objection, your honor,” the district attorney rose to restate Senator Castillo’s objection in a more procedurally correct fashion. “Senator Travis’s framing is argumentative.”

“If the court please,” Senator Travis replied, “the term ‘gender-affirming’ is every bit as argumentative on behalf of the state’s case as ‘gender-mutilating’ is on behalf of the defense’s case. The defense requests your honor allow both terms. Or, if your honor believes they are argumentative, disallow both and suggest a neutral replacement both sides should use. Maybe we could agree to call it ‘genital amputation?’ But if it please the court, the defense does not believe it is equitable to allow the state to employ their slanted terminology while disallowing the defense the same privilege.”

Judge Connor considered his decision. “Overruled,” he decided at last. “Each side may employ its favored terminology.”

“Thank you, your honor.” Senator Travis glanced down at his papers. “Gender-mutilating surgeries, the next step in what advocates call, ‘gender-affirming’ care. Examples include so-called ‘top’ surgery which sounds more fun than calling it a radical double mastectomy, amputating a confused girl’s breasts. Those operations cost about $40,000 each. Do you think hospitals and clinics might have a bit of a financial incentive to rush girls through operations like that without their parents’ consent?

“Transgender medicine is a very complex and nuanced field,” Senator Castillo declared, “with robust ethical standards and standards of care.”

The real money-maker, though, is ‘bottom surgery,’” Senator Travis continued. “Castrating a boy, chopping off his penis, and performing a vaginoplasty to construct some sort of, well, cavity. But that’s easy compared to female-to-male bottom surgery. Harvesting some tissue to perform a phalloplasty and creating a semblance of a penis. Those run upwards of $100,000 each, and they’re experimental and prone to lots of side effects and problems and nasty complications that require a long series of expensive follow-up visits and treatments. A real money-maker. Do you think hospitals and clinics might have a bit of a financial incentive to rush boys and girls through operations like that without their parents’ consent?”

“Transgender medicine is a very complex and nuanced field,” Senator Castillo repeated, “with robust ethical standards and standards of care.”

“Senator Castillo, do you support the government intervening to override parents’ consent? To give children puberty blockers, cross-sex hormones, and/or this amputation surgery of breasts and genitalia without their parents’ consent?”

“Transgender medicine is a very complex and nuanced field,” Senator Castillo repeated her mantra. “I don’t claim to have all the answers, but I listen to the experts and try to follow their advice.”

“I’m alarmed,” Senator Travis declared, “that you’re not willing to say absolutely minors should not be making decisions to amputate their breasts or to amputate their genitalia. For most of our history, we have believed that minors DON’T have full rights and that parents need to be involved in critical decisions involving their welfare.”

“Transgender medicine is a very complex and nuanced field,” Senator Castillo repeated herself yet again, “with robust research and standards of care. I’m confident we can trust the experts to make the right decisions.”

“Let the record show the witness has declined to affirm that parents should be involved in their minor children’s decisions to undergo chemical castration and genital mutilation.” Senator Travis flipped to the next page in his folder.

“Let the record show that Senator Travis has offered ideological and harmful misrepresentations,” Senator Castillo countered, “that impugn the dignity and professionalism of the medical profession.”

“Seems that someone who declares she isn’t a doctor and can’t answer medical questions doesn’t have much ground to be deciding what impugns the dignity and professionalism of the medical profession,” Senator Travis smiled, “but you claim I’ve made misrepresentations? OK, I’ll bite. What misrepresentations have I made?”

“Characterizing gender-affirming surgeries as gender-mutilating surgeries!” Senator Castillo insisted.

“Well,” Senator Travis gave a cocky smile, “we’ve seen, well let’s just say that offering clear, concise, and cogent definitions doesn’t appear to be a core strength of the gender studies curriculum, but we can try it if you like. Would you care to offer the court a definition for the term ‘affirming?’”

“It means to love and support,” Senator Castillo explained, “which is just the basic decency we should extend not only to the transgender community, but to all people everywhere!”

“Order!” Judge Connor banged his gavel to silence the scattered applause Senator Castillo’s answer drew.