In the midst of the coronavirus pandemic and the uprisings against ongoing police brutality toward Black people in the United States, the federal government has decided now is the time to continue prioritizing and escalating its attacks on transgender people. Cruelly, many of the current attacks are focused on transgender youth who already face staggering rates of discrimination, stigma, and suicidality. As someone who regularly challenges these attacks in court and legislatures through my work with the ACLU, I’ve seen how these insidious forces operate and the devastating impact they have on young trans people.
Most recently, the Trump administration’s Department of Health and Human Services issued a 338-page rule full of anti-trans rhetoric that practically encourages discrimination against LGBTQ people in health care. The rule goes so far as to gaslight trans people by framing discrimination against us as “unsubstantiated hypothetical scenarios” (despite many of us living through them ourselves) while also suggesting that repeated misgendering of trans patients in a health care setting isn't even discriminatory. It is cruel and just the latest example of many in the Trump administration using the power of the United States government to attack trans people.
Attorney General Bill Barr and Secretary of Education Betsy DeVos have collaborated with Alliance Defending Freedom (ADF) – an anti-LGBTQ organization – in court filings and administrative documents to claim (without any legal basis) that women and girls who are transgender are a threat to the rights and legal protections of non-transgender people. The latest Trump administration actions are part of a coordinated effort from groups like ADF and leading government officials to situate trans people and our bodies as a threat to the social and legal order, something that’s played out in state legislatures for years.
Last year, ADF filed a complaint with the Department of Education (ED) on behalf of several cisgender girls alleging that Connecticut’s long-standing policy of permitting transgender athletes to compete in high school athletics consistent with their gender identity violated the rights of non-transgender women and girls. Shifting the anti-trans rhetoric from restrooms to athletics was the strategic move of anti-trans groups after witnessing the rapid collapse of their movement to exclude trans people from restrooms, often through state-level legislation.
The ED complaint, which progressed into a federal lawsuit, zeroed in on two specific young women, Andraya Yearwood and Terry Miller. Andraya and Terry are two Black teenage runners who have consistently excelled at track during their high school careers. Their successes, however, were met with complaints by some — mostly white, cisgender — athletes who complained (often on Fox News and in the right-wing blogosphere) that they should not have to compete against or share space with girls who are transgender. And though Terry and Andraya medically transitioned at a young age and are beaten by cisgender athletes in competition, they are spoken about in media and legal documents as “biological males” with superhuman strength that no “biological female” can compete against.
In their lawsuit, the cisgender girls claim that treating girls who are transgender as girls sends the following message: “To American girls — those born with XX chromosomes — the message is, ‘Give up. You can’t win.’” Of course, “American [cisgender] girls,” about whom they speak, can and do win. And what they fail to recognize is that “womanhood” is not a zero sum game wherein one person’s experience of it takes away from another’s.
Ultimately, the agenda for ADF (and seemingly publicly officials all over the United States) is not just to exclude transgender people from basic participation in public life (though that is certainly part of the push behind excluding us from restrooms, sports, and the military), it is also to enforce binary notions of embodied sex and sex-based behavior in a uniquely dystopian way. In opposing Terry and Andraya’s motion to even be permitted to participate in defending their own rights to run, ADF contested even the trans and medical communities’ language of “assigned sex at birth,” instead arguing that “sex is not ‘assigned’ at birth” but determined by an infant child’s chromosomes alone. To them, a “real” girl has XX chromosomes and can produce ova while a “real” boy has XY chromosomes and can produce sperm.
ADF — and, by extension, their trans-antagonistic accomplices at nearly every level of government — would have our bodies be reduced to procreative capacities. They want the existing nondiscrimination legal regime to be used to police people into and out of the categories of male and female based on chromosomes and the capacity for making babies. These arguments are then deployed in the service of an even move insidious argument that transgender people are harmed by inclusive policies because we are better off living as our assigned sex. In other words, they effectively argue, “We are discriminating against you for your own good.”
Of course, we know that isn’t true, and I have seen firsthand how painful it is for the youth who are targeted. In the midst of these fights, one client of mine posted on Instagram after the relentless attacks: “I feel so much pain that my heart is turning numb. I cry so much I have no tears left. I try to be [a] happy person, [but] I have no happiness left in me.” Our youth are watching and listening to what is said about them and it threatens to take away their joy.
The ultimate goals of these trans-antagonistic legal efforts are made clear by the invocation of the mythical data purportedly revealing that high levels of trans people regret transitioning, like the argument author J.K. Rowling advanced in bad faith earlier this month. They know, and science confirms, that the only thing we regret is having to deal with painful attacks on our ability to survive.
In another brief filed in a challenge to Idaho’s newly passed anti-trans law, ADF parrots wholly discredited claims that “a very large majority of children who suffer from gender dysphoria will ‘desist’ from experiencing that dysphoria, and will revert to comfort with their biological sex by the time they reach young adulthood, so long as they are not subjected to ‘gender affirming’ social transition such as participating in opposite-sex athletics.” Here again the argument is: Trans people suffer no harm by being forced out of single-sex spaces and activities because it helps us go back to our assigned sex.
In the future the ADF wants, the one that elected officials all across the country are helping them create, trans people do not and cannot exist. In that future, trans youth — historically ignored or forced to hide — are given the space to come out only so they can be converted back into cis people.
It is a retrograde way of thinking that leads quickly to the criminalization of trans bodies, something we can see in real time through an emergent set of proposed laws that would make it a crime to provide medical treatment to youth who are transgender. Sex can only ever be chromosomes, ADF and others claim. And if you believe in self-determination, ADF argued in its brief, you are “rel[ying] on a verbal game of ‘three card Monte,’ with words being substituted and shuffled so rapidly that one loses track of meaning…. rendering incoherent the words man and woman, male and female.”
If we get to say who we are, ADF's argument goes, then words have no meaning at all. And to stop that, they are pushing criminal laws that would cut people off from needed medical care, making our lives and our survival a crime. In a system of laws that disproportionately punishes Black and Brown bodies and a legacy of gender policing that has targeted women – cis, trans, and intersex – from the global south, this new advocacy continues a long legacy of harm. It is more than just transphobic; it is racist and colonial in the ways that many of our systems are.
This world that ADF, the Trump administration, and others are pushing for is not unlike the world that existed when a group of Black and Brown trans people, drag queens, street kids, and hustlers led an uprising against police and other forms of state violence outside the Stonewall Inn on Christopher Street in New York's City West Village. In some ways, 51 years after that uprising, we are coming full circle. This moment demands we ask ourselves whether we have the fortitude to take up the fight that Marsha P. Johnson, Sylvia Rivera, Miss Major Griffin-Gracy, and others kicked off decades ago. Just as so many of the young people who packed into Stonewall each night were regularly targeted by police raids, trans youth across the country now find themselves the targets of lawmakers and massive lobbying operations.
This fight must be waged beyond the courtroom and the legislature, as it necessitates that we imagine a future that is unconstrained by legal notions of sex, bodies, and power.
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Want more from Teen Vogue? Check this out: Transgender Youth Are Being Targeted With State Laws in South Dakota and Several Other States