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Three False Ideas That Anchor Anti-Trans Attacks

To protect trans futures, we must remember trans pasts, work for gender justice and defend true religious liberty.

Trans activists and allies rally in support of transgender people on the steps of New York City Hall, October 24, 2018, in New York City.

As attacks on trans people continue to escalate simultaneously from the Trump administration, groups pushing anti-trans ballot initiatives and lawsuits, and mainstream media that treat trans existence as up for debate, it’s vital to expose the false ideas that tend to drive assaults on trans rights more broadly in our society.

The agenda of anti-trans advocates hinges on three ideas that are as dangerous as they are wrong. One is that rights for trans people, LGBQ people, intersex people, gender nonconforming people, and women are in tension with one another, when in fact our liberation is bound up with one another’s. The second is that rights for trans people, LGBQ people, intersex people, gender nonconforming people, and women are in tension with religious liberty (when the real threats to religious liberty are land theft from indigenous peoples, the Muslim ban, prison policies, unchecked anti-Semitism, and empowerment of business owners to impose their religious beliefs on others). The last is that trans people are a new, unprecedented phenomenon, when we have existed as long as gender has.

Attacks on Trans People Hurt Cis Women and LGBQ People

Anti-trans advocates want us to believe that trans existence and cis women’s rights are in tension. But women, LGBQ people, intersex people, gender nonconforming people, and trans people get hurt by the same systems, and we can only win gender justice together. This is true in many arenas; employment discrimination is one example.

Anti-trans advocates in and out of the Trump administration push the idea that trans people in the workplace are a threat to cis women, because trans women and nonbinary people may use a restroom at the same time as cis women. The administration deploys this idea not only to exclude trans people from discrimination protections, but also to exclude cis LGBQ people from those protections, and to narrow what sex discrimination means overall.

Consider Zarda, a case the Supreme Court may take up soon. While this case is about an employer who fired a cis male employee for coming out as gay, arguments from the Department of Justice (DOJ), if adopted, would sweep much further. The DOJ lawyer argued that even if firing someone for being gay were discrimination on the basis of sex, it would still be legal:

DOJ attorney: Unlike Jews and non-Jews, where there are no factual differences and the law does not recognize differences between Jews and non-Jews, there are real differences between men and women, and the law recognizes real differences between men and women. And this is vividly illustrated by the situation with the bathrooms.

Judge Lynch: So sex discrimination is sort of okay because there are real distinctions between men and women but racial discrimination and religious discrimination are not?

DOJ attorney: That is absolutely the case…. Discrimination requires treating people who are similarly situated differently…. Men and women are not similarly situated in all respects…. The same exact physiological differences that are relevant to bathrooms are the same exact physiological differences that an employer is allowed to take account of when they’re regulating their employees based on their off-the-work sexual relationships.

When taken together with the possible regulations redefining sex from the Trump administration’s recently leaked memo, the implications are extreme. First, DOJ says “sex” only refers to genitals at birth, so if it isn’t about genitals at birth, it isn’t sex discrimination. Then, DOJ says sex discrimination is permissible so long as it is based on real physical differences, like genitals at birth. That does not just mean that trans people, intersex people, and LGBQ people wouldn’t be covered by existing civil rights laws, although that would be devastating enough. It means sex discrimination would no longer be illegal at all. (The statement from the DOJ attorney that religious and racial discrimination really is against the law should reassure no one, given the religious and racial discrimination committed and defended by the Trump administration.)

If the argument that trans people pose a threat to cis women was out of place in a case about a gay cis man, it is even more bizarre in another case the Supreme Court may take: Harris Funeral Homes, involving a transgender woman funeral director named Aimee Stephens. Thomas Rost had owned Harris Funeral Homes for 35 years. In all that time, he had never intentionally hired a woman as a funeral director in any of the funeral home’s four locations. When he hired Aimee, he believed she was a man. Almost six years later, she told him that she was truly a woman and planned to begin living openly as a woman. Rost fired her. In his testimony, Rost said he requires women to wear skirts to work even though it is not an industry standard, believes gender is immutable, thinks it is wrong to reject the gender one was born with, believes men should look like men and women should look like women, thinks women are a “strange breed,” and considers some workers “key employees” and others “lady attendants.”

But that’s not all. Under Obama, when the Equal Employment Opportunity Commission (EEOC) investigated Aimee’s claims, it discovered that Rost also discriminated on the basis of gender in compensation. He bought suits for his male employees (and Aimee, before she came out at work as trans) at the business’s expense but didn’t compensate cis women for their clothing. After the EEOC sued, Rost began offering women a small stipend toward their clothing, but much less than what he spent on clothing for men.

The federal appeals court ruled for the EEOC on both claims — the court said the funeral home discriminated against Aimee when it fired her for being a transgender woman, and discriminated against all the other women employees when it failed to compensate them for their clothing on the same terms as men. Materially, the decision benefits all women who worked for Rost, whether cis or trans, and harms no women. And yet, the people defending the funeral home claim that this decision pushes women out of the workplace: they reason that if trans people are allowed to work, then cis women will quit their jobs rather than risk running into a trans woman in a restroom. But the only woman pushed out of the workplace here was Aimee.

People in Positions of Power Imposing Their Religious Views on Others Is Not Religious Liberty

The Trump administration and others work hard to frame reproductive health care and LGBTQ existence as threats to religious liberty.

Opponents of abortion, contraception and LGBTQ rights advocate for the view that business owners and others in positions of power should be able to impose their religious beliefs on others, at least if those religious beliefs oppose abortion, contraception and LGBTQ rights. But that approach, taken by the Supreme Court in Hobby Lobby, squelches religious liberty. In Harris Funeral Homes, Rost said that continuing to employ Aimee would infringe on his religious beliefs, because he believes that people should not be trans. But Aimee’s religious liberty matters too, and she would lose it if she had to live her life according to her boss’s beliefs rather than her own. In fact, the government helping people in positions of power to impose a select set of religious views on others is anathema to religious liberty.

But religious liberty does matter, and it is in crisis in this country.

When the United States steals land including sacred sites from Native tribes and refuses to return them, we have a problem with religious liberty. When Nazis march chanting “Jews will not replace us” and the president defends them, we have a problem with religious liberty. When the president announces that Muslims should not be allowed in the country, bans people from some Muslim-majority countries from entering, and the Supreme Court lets him do it, we have a problem with religious liberty. When courts say it is OK for prisons to refuse to let prisoners possess any literature from certain Black-led religious groups, we have a problem with religious liberty. When religious views counter to gender justice are prioritized over all other religious views, we have a problem with religious liberty.

To win gender justice, we cannot allow our opponents to seize this narrative. We need real religious liberty for everyone.

Trans People Are Not New

In 1901, The New York Times published an article called “Whiskers for Tammany Men.” When a white male politician named Murray Hamilton Hall died, the coroner discovered he had a vulva and told the world. At the time, women were not allowed to vote. The New York Herald claimed that Hall’s successful political career proved Susan B. Anthony’s claim of sex equality and made the case for women’s suffrage. One of Hall’s erstwhile political opponents, though, commented that captains in Tammany Hall should be required to have whiskers on their face, to prevent any other “women” from voting — hence the title of the Times article. That proposal, thankfully, was never adopted into law. But it was almost 20 more years before people could no longer be formally disqualified from voting because of their gender.

More than a century after Hall’s death, what’s old is new again. Again, a few perceive trans existence as a threat to the established order. Again, those few are making terrible proposals about changing the law to prevent trans participation in public life and to keep women in their place.

Hopefully, again, these proposals will be rejected — but they have already gotten further than they ever had before.

Trans and gender nonconforming people are not new, but others seem to “discover” us every few years, professing a great deal of shock each time. To give just a few examples, papers across the country ran sensational stories about trans and gender nonconforming lives in 1836 (Mary Jones), 1858 (Joseph Lobdell), 1878 (Mrs. Nash), 1883 (Frank Dubois), 1897 (Babe Bean), 1945 (Lucy Hicks Anderson), 1952 (Christine Jorgensen), 1969 (multiple participants in the Stonewall Rebellion), 1977 (Renee Richards), 1993 (Brandon Teena), and 2008 (Angie Zapata). Media can’t seem to stop running sensational stories about trans people in the current decade, somehow always claiming we are a previously unheard-of phenomenon.

No matter how well and often scholars like Louis Graydon Sullivan, Susan Stryker, C. Riley Snorton and Tourmaline uncover trans histories, others work to bury them back down. The burying happens when reporters insert the words “new” or “recent” in stories about us and invite people to debate whether we should exist. It happens when institutions excise material showing gender diversity from textbooks and curricula. It happens when people who aren’t trans describe any work on trans issues as “cutting edge.” It happens when producers tell stories leaving out the trans and gender nonconforming people who were a part of them, especially if they were also people of color. And it happens when people claim legislatures could not possibly have thought about trans people when they wrote laws against sex discrimination.

Framing us as “new” not only erases our history, but also feeds into the narrative of those who want to claim that our existence is an aberration and a social and legal emergency. Attempts by the Trump administration and other anti-trans advocates to eradicate us from the present and future seem less extreme when people imagine we have no past.

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