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Meeting the Transgender Moment

Coming this fall: Supreme Court battles may change the meaning of "sex" under the law.

School administrators and sports organizations are facing new questions about transgender athletes. Medical professionals are weighing how best to treat transgender patients. The Trump administration and the military are waging with internal battles over transgender Americans serving in the armed forces. When the Supreme Court hears a transgender employment case this fall, we could be looking at the Roe v. Wade—or Obergefell v. Hodges—of the transgender movement. (Those were the decisions legalizing abortion and same-sex marriage, respectively.)

Once unheard of, virtually every sector of American life must confront an apparently growing number of people who say their personal gender identity does not match their birth sex. Indeed, the whole concept of sex as a binary male/female reality has been questioned as never before. Where did this all come from?

For many Americans, their first introduction to the “T” in the common LGBTQ acronym was the news that Bruce Jenner, the former Olympic champion, had decided to live as a woman. As confirmation, he appeared on the cover of Vanity Fair with long hair and perky breasts, astounding some and invigorating others. 

A year later, the Obama administration unveiled the now-infamous “Dear Colleague” requiring schools and colleges to let transgender students have access to facilities consistent with their gender identity. Even though then-president Barack Obama skirted around a legislative fight or even a formal executive order, with a letter technically coming from the U.S. Department of Education, the move swept the country and provoked debate on all sides as transgender activists engaged on multiple fronts: education, the workplace, and medicine.

Ryan T. Anderson, a senior research fellow at the conservative Heritage Foundation, has been an outspoken critic of the transgender movement and published a book, When Harry Became Sally, surveying our brave new world of gender politics. He told me via e-mail that “technology, ideology, and power politics” explain how transgender issues became a front-and-center policy issue in the first place:

Only within recent decades have synthetic estrogen and testosterone, and the various surgeries, even been a possibility. So there’s a technological component here of what’s even possible. Second, an ideological component of what is even thinkable, that someone could be trapped in the wrong body, that gender could be both fluid and exist along a spectrum, with the Gender Unicorn serving as the new catechism. And third, there’s a political dimension. This isn’t a populist or grassroots movement. No, this is something that is being imposed on [a majority of] Americans via rich, politically powerful Americans. Once they had won on the “LGB” part of the acronym, the activists pivoted seamlessly to the T.

The Obama Education Department’s letter prompted the American Civil Liberties Union to connect with a handful of students who, with the encouragement of their parents, sued school districts that did not comply with the new federal guidelines. This ensured school officials faced costly litigation or an expensive settlement if they did not go along with the recommended accommodations for transgender students in their jurisdictions. 

Gavin Grimm was a sophomore at Gloucester High School in Virginia in 2014 when the transgender male student sued the school district over restroom access. The district would only allow Grimm to use a private bathroom, not the boys’ room.

“As part of Gavin’s medical treatment for severe gender dysphoria, Gavin and his mother notified administrators of his male gender identity at the beginning of his sophomore year so that he could socially transition in all aspects of his life,” the ACLU said in a public statement about the lawsuit. “With permission from school administrators, Gavin used the boys’ restroom for almost two months without any incident.” Parents complained and the school board voted 6-1 to adopt a new policy “despite warnings from the ACLU.”

Even though the Supreme Court declined to hear the case and Grimm graduated in 2017, it’s still being litigated in the lower courts. It was this and similar cases that motivated dozens of state legislatures to try to pass “bathroom” laws to protect the privacy of students who wanted to continue using the bathroom according to their biological sex, something that is still an ongoing issue. States that have advanced such legislation have been threatened with boycotts.

In February 2019, a jury in Iowa ruled in favor of Jesse Vroegh, a transgender man who filed a complaint against the Iowa Department of Corrections, where Vroegh was employed as a nurse. Vroegh alleged his employer wouldn’t allow him to use the men’s restrooms and also wouldn’t cover his transgender surgery. The jury agreed that the employer had engaged in gender identity discrimination and awarded him $120,000. This was based on Iowa’s Civil Rights Act, which includes gender identity. 

“The next battle we’re likely to witness is with medical doctors being prevented from practicing good medicine and being forced to practice bad medicine,” Anderson said via e-mail. Though a relatively new concept, this is already happening, particularly to hospitals with religious affiliations. In March 2019, the ACLU filed a lawsuit on behalf of Oliver Knight, a transgender man who claimed he was denied a hysterectomy because the hospital where it was scheduled was a Catholic institution. As in the other cases, Knight claimed sex discrimination, even though the hospital maintains their religious affiliation precludes them from performing such procedures.

What does the future hold? When Republicans lost control of the House of Representatives in the midterm elections last year, congressional Democrats proposed the Equality Act, which would prohibit discrimination on the basis of “sexual orientation and gender identity” despite objections based on privacy, religious liberty, and biology. The bill passed the House in May. Republicans still have a majority in the Senate.

In October the Supreme Court is expected to hear R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, an employment law case with potentially major implications for the legal meaning of sex. After working at R.G. & G.R. Harris Funeral Homes for several years, Aimee Stephens began to identify as transgender. The funeral home fired Stephens for not abiding by the workplace dress code and Stephens sued for discrimination. The Supreme Court will examine whether the lower courts were correct in redefining “sex” in Title VII to mean “gender identity.” The justices’ decision could have far-reaching consequences for the transgender movement.

Nicole Russell covers politics, law, and culture. Her work has appeared in The Atlantic and The Washington Examiner. Follow her on Twiter @russell_nm