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A Momentous Two Weeks

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A Momentous Two Weeks

The national fight over gender identity is escalating. April 1, 2022
The Social Order

The last two weeks were momentous for transgender advocates and their critics. On Monday, Florida governor Ron DeSantis defied Disney, the state’s largest employer, and a slew of other corporations by signing the Parental Rights in Education Act—egregiously mischaracterized as the “Don’t Say Gay” bill—into law. The bill, which mandates that discussion of sexual matters in the classroom be “age appropriate” and requires that parents be involved in medical decisions regarding their children, is, as some critics have charged, vaguely worded, and vague language can indeed be an invitation for regulatory trouble. But it is trans activists who have spent the past decade inflating the meaning of ordinary words like “safety” and “inclusion” to encompass radical and highly controversial ideas and policies. On the whole, given what is happening in our nation’s schools, especially at the K-3 level, the Florida law is eminently reasonable—so much so, in fact, that activists have had to mislead the public into thinking that the law is primarily about homosexuality.

Governor DeSantis must be thinking about former North Carolina governor and fellow Republican Patrick McCrory. Exactly six years ago, McCrory signed into law the Public Facilities Privacy and Security Act, also known as HB 2 or the “bathroom bill,” which required that people use public restrooms in accordance with their biological sex. A few weeks earlier, the city of Charlotte passed a measure that allowed people to use public restrooms consistent with their gender identity. What followed was a nationwide corporate boycott against North Carolina, costing the state an estimated $630 million in the short run and several billion in the long run. The Obama administration’s Department of Justice sued the state, with then–attorney general Loretta Lynch publicly comparing the bathroom bill to racial segregation under Jim Crow. The White House also vowed to withhold billions of dollars in federal aid should the law go into effect.

In an attempt to save his state from corporate cancellation, McCrory tried to broker a compromise: Republicans would back down from HB 2 if Charlotte repealed its pro-transgender ordinance. But an influential Democratic lawmaker in the state, along with state attorney general and Democratic gubernatorial candidate Roy Cooper, pressured members of their party to refuse the deal. Their assumption was that keeping HB 2 alive and unamended would help drive liberal voter turnout in the gubernatorial and presidential elections that November. The gambit paid off, at least in part: Cooper beat McCrory by a razor-thin margin, but North Carolinians also reelected Lieutenant Governor Dan Forest, a Republican supporter of HB 2. While drawing causal links is always risky in these circumstances, it’s fair to say that transgender activists demonstrated that the forces of capitalism were aligned on their side.

So far, DeSantis has stood fast in the face of threats by Disney to withhold donations from Republicans, contribute millions of dollars to LGBT advocacy groups such as the Human Rights Campaign (HRC), and “tell inclusive stories” in their family-oriented productions (i.e., promote LGBT content for children). Having learned from the North Carolina battle and numerous other showdowns over state religious liberty bills, HRC has taken its case directly to corporate America, urging major business leaders to boycott Florida or face a boycott of their own. One-hundred fifty CEOs promptly did so, highlighting yet again the absurdity in the narrative about transgender powerlessness. At least for now, DeSantis seems to be wearing woke capital’s disapproval as a badge of honor. Perhaps that is because, unlike McCrory in 2016, he is thinking about running for president in the next election and knows that attacks on parents’ rights in education are deeply unpopular.

The week before, on Tuesday, senator Marsha Blackburn asked Ketanji Brown Jackson if she could define what a woman is. The federal judge and Supreme Court nominee responded that she could not, as she is “not a biologist.” In one sense, Jackson’s answer is understandable; as she went on to clarify, the definition of “sex” is likely to come up in a future Supreme Court case, and it would be improper for her to comment in advance on how she would resolve such a dispute.

But the response was also ironic. For one, Joe Biden had promised to nominate a black woman to the nation’s highest court. Biden is no biologist, yet he somehow knew that Jackson is a woman, and Jackson, we may presume, never bothered to ask him how he knew that. Second, why would Jackson think to mention biology in the first place? Why not say “I’m not a cultural anthropologist” or “I’m not a gender studies professor”? If biology is relevant to the definition of “sex,” that can only be because of reproductive traits and roles, of which there are only two.

Most important from a legal perspective, Jackson’s response was incriminating to judges who share her judicial philosophy and ruled in favor of transgender students in Title IX lawsuits. In order to rule that schools “discriminated” in the relevant sense, judges in these cases had to have assumed that gender identity, not reproductive capacity, determines maleness and femaleness. Yet Jackson’s comment implies that the question of what makes one a man or a woman is not a legal question, and thus not one that falls within the competence of a judge. If she is right about the relationship between law and biology, it would follow that the judges in the Title IX lawsuits strayed beyond their legitimate authority.

Progressives, meantime, have leapt to Jackson’s defense, calling her response reasonable and accusing Blackburn of exploiting the opportunity to stir up culture war sentiment ahead of the 2022 midterms. Washington Post gender columnist Monica Hesse argued that Jackson did in fact define what a woman is. She did so “every time she sat with a placid smile through accusations that she was lenient on child pornographers or that she was paid for by ‘dark money,’” when she “spoke about the impossible balancing act of work and motherhood,” and when she found herself “measuring her words in front of a man [Senator Ted Cruz] who held her future in his hands.”

That may all be true, but the fact remains that Jackson’s unwillingness to say “a woman is an adult human female” bodes ill for Democrats in November. If one lesson can be learned from the Florida bill, it’s that the success of trans activism depends on the public’s willingness to confuse policies that promote gender self-identification—for which public support is shaky at best—with policies that support gay and lesbian people, for which support is deeper and broader. Trans activists condemn as “transphobic” anyone who conflates sexual desire with gender status, but they willingly do so themselves when it serves their political purposes.

On Wednesday, Arizona governor Doug Ducey signed two bills into law, one that limits participation in the female category of sports to females only, and another that prohibits the use of “top surgery” (mastectomies) to treat gender-related distress in minors. Like other bills being proposed or passed at the state level, Arizona’s ban on pediatric gender-transition medicine is grounded in a reasonable interpretation of available studies on gender-related distress in minors. Critics of the ban base their argument largely on speculation: they assume that the new patient population (teenage girls with no prior history of dysphoria), which makes up the bulk of the recent surge of minors seeking transition, is no different from the original patient population (natal boys with early-onset gender dysphoria) for which “affirming” therapy was originally designed. To date, no evidence supports this assumption, and mounting evidence vitiates it. Predictably, left-leaning media have aped the language of trans activist groups and their question-begging buzzwords when describing the Arizona law, calling it an “attack” on “transgender youth” and their “right” to “healthcare.”

Ducey was not the only governor to sign a law restricting the female category of sports to females only. His counterpart in Oklahoma, J. Kevin Stitt, did the same in his state. This brings the tally of states trying to protect women’s sports from unfair competition to five since the start of 2022 (alongside Utah, Iowa, and South Dakota). The impetus for the Arizona and Oklahoma bills was, of course, Lia Thomas’s “success” in women’s collegiate swimming and the blowback it generated. Whether these laws will survive legal challenges by groups like the ACLU remains to be seen.

Oklahoma’s “Save Women’s Sports” law does contain one odd provision. “If there is any change in the status of the biological sex of the student,” it reads, “the affiant shall notify the school within thirty (30) days of such change.” How exactly can a student change his or her biological sex? No doubt, a student can change the appearance of his secondary sex characteristics, but secondary characteristics are the expressions, not the determinants, of one’s status as male or female. Wearing a helmet and carrying a gun is what combat soldiers do, but it doesn’t follow that if one wears a helmet and carries a gun one is a combat soldier. At most, people who undergo gender transition can persuade others to refer to them as if they are members of their claimed sex—in other words, they can change their gender, but never their sex. This loophole in the Oklahoma law might well prove its undoing. Trans activists will respond by insisting—as they have in the past—that the brain is one of several biological features of sex, and transgender girls have a female brain. The claim is unsupported by scientific research and even self-contradictory, but courts have thus far accepted it as true.

Finally, on Wednesday and Thursday, presumably in response to these Republican-led efforts to challenge the new gender orthodoxies and in light of Transgender Day of Visibility, the Biden administration went all-in on what the president has twice called “the civil rights issue of our time.” The Department of Education’s Office for Civil Rights signaled its intent to begin a Title IX rulemaking process in April rather than in May, as originally planned. The new rules will almost certainly reintroduce Obama-era guidelines, confused and legally ungrounded though they were, but this time around, the transgender issue is likely to receive even more attention. In a memo released to state attorneys general on Thursday, the Department of Justice vowed to oppose measures like the ones recently passed in Republican states. That same day, President Biden even tweeted a personal video message in which he told parents of “transgender children” that “affirming your child’s identity is one of the most powerful things you can do to keep them safe and healthy.”

Biden is not only the most prominent American politician to support gender self-identification. He is also living proof that elite support for gender self-identification in the United States is not predicated on agreement with—or, for that matter, an understanding of—the transgender movement’s philosophical claims. In a CNN-hosted town hall on LGBT issues during the 2020 election season, Biden was asked what he would do to protect transgender people. The presidential candidate promised that he would “change the law.” Recounting the first time he saw a gay couple embrace, he proclaimed that “if an eight-year-old or a ten-year-old child decides . . . you know I decided I want to be transgender, that’s what I think I’d like to be, it’ll make my life a lot easier . . . there should be zero discrimination.” He also mentioned how his late son, Beau, as attorney general of Delaware, helped pass a state antidiscrimination law, as a result of which “a young man who became a woman . . . worked for him in the attorney general’s office.”

In that brief and no doubt well-meaning reply, Biden managed to violate the three central tenets of the transgender movement. He equated gender identity with sexual orientation, asserted that being transgender is a choice, and implied that transgender women were once men. While it is tempting to chalk his comments up as yet another gaffe, they are actually consistent with how progressive elites have come to think about the trans issue. For them, the question of whether transgender women really are women and transgender men really are men—in short, the question of what defines humans as sexed beings—is secondary and subordinate to the question of which definition of “sex” will best promote the self-esteem (“mental health”) of people who reject their own bodies.

Biden, apparently, has chosen to entrench America’s dubious distinction of being an outlier in the area of pediatric gender medicine. By reviving the Title IX culture war battles, he has also chosen to ignore Democratic strategists, who have been warning that Biden’s historically low approval rating is driven by a belief among moderate voters that his administration has strayed too far from common sense and the everyday concerns of people like themselves.

What exactly the new Title IX rules will say and how, if at all, they can be reconciled with the newly enacted Republican state laws is a question that will almost certainly be worked out through extensive federal litigation campaigns. To give just one example, Florida’s Parental Rights in Education law prohibits any instruction on matters of sexual orientation and gender identity in grades K-3. The new Title IX rules, however, will probably instruct schools to maintain “safe” and “non-discriminatory” environments, which LGBT activist groups will undoubtedly interpret to mean, among other things, that first-graders should be taught that gender is a “spectrum” and that they are free to reject the sex they were “assigned at birth” in favor of such identities as “non-binary.”

No less controversial will be the new regulations on how schools and universities subject to Title IX should define and address sexual harassment. The Obama administration’s guidelines on this issue were notoriously excessive and arguably unconstitutional; they received harsh criticism even from feminists and liberal law professors. Crucially, from a regulatory perspective, the guidelines illustrated how vague pronouncements by Office for Civil Rights bureaucrats could be used by on-campus activists, especially ones housed in higher education’s ballooning “sex bureaucracy,” to pressure schools into adopting rules and procedures that would make even Franz Kafka squirm. To give one example, as part of its training on how to adjudicate allegations of sexual misconduct, Stanford University instructed its personnel to regard an accused student’s “being logical and persuasive” as a sign of guilt, whereas confusions and contradictions in the accuser’s story were to be seen as possible evidence of having been sexually traumatized.

Though sexual harassment and transgender accommodation are technically separate areas of Title IX regulation, the Obama and Biden administrations’ way of thinking about both issues stems from the same ideological commitment. During the “repressed memory” scandal of the 1980s and 1990s, therapists argued that whether a young woman’s “memory” of having been molested by her father or uncle was actually true was less important than whether “remembering” the event alleviated her present distress. If it feels real, the thinking went, it is real. Two decades later, feminists applied the same logic to the so-called “rape culture” epidemic on college campuses. They argued, for example, against allowing an accused student to cross-examine his accuser on the grounds that it would “re-victimize” her and force her to relive her “trauma.” Never mind that cross-examination is a key tool in figuring out whether sexual assault happened in the first place.

The same subordination of truth to therapy is vividly on display in transgender regulation under Title IX. In lawsuit after lawsuit, transgender plaintiffs argued that being denied access to their preferred restroom was “discrimination” because it interfered with their medically necessary treatment for gender dysphoria and as such harmed their “mental health” (self-esteem). In case after case, judges used this medical framing when ruling in favor of the plaintiffs. If courts’ explanations for why male and female are matters of gender identity rather than reproductive characteristics were confused or contradictory, that is mostly because logic and coherence in their definition of “sex” was simply beside the point. As judges saw it, their task was to balance the distress experienced by non-transgender students from having to share restrooms with someone with the opposite anatomy against the self-esteem of students whose subjective sense of who they are requires “affirmation” by others. If it feels real, it is real.

Because the Biden administration seems wholeheartedly committed to this therapeutic mindset (as interpreted, of course, by feminist and transgender activists), it is likely to restore accuser-friendly policies in the case of sexual harassment and gender self-identification policies in the case of restrooms and sports.

Photo by Jessica Rinaldi/The Boston Globe via Getty Images

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