A Quiet Legal Radical Unites Trans & Women’s Rights
Assigned Media interviews the William Wallace Kirkpatrick Dean’s Research Professor of Law at George Washington University, Naomi Schoenbaum.
by Riki Wilchins
Assigned Media: You have been a leading expert on women’s employment and anti-discrimination law, but you have increasingly been sucked into resolving the endless legal tension between sex and gender, and especially between trans and women’s rights.
Naomi Schoenbaum: Part of the impetus for this was the legal cases challenging transgender discrimination as sex discrimination. But the way that courts understood these cases to be sex discrimination, was to understand transgender people as the sex assigned at birth—and then to say employers aren't allowed to have expectations based on that.
But even when plaintiffs won, those cases were still damaging to trans people because the courts were trapping trans plaintiffs in boxes based on sex that conflicted with their gender identities. To the extent that we think that there's something innate and important about biological sex, it just leads to more discrimination based on sex. And we see courts taking this even further, like in the Supreme Court’s United States v. Skrmetti.
AM: After the recent Executive Order saying the federal government would only recognize binary sexes, an official explained that, “Radical gender ideology has devastated biological truth.” I wondered how a truth of nature—like the speed of light or the existence of helium—can be so fragile that just 1% of the population can destabilize it so much that the federal government has to step in and rescue it.
NS: There's always been pressure from the Right against the idea of sex as constructed. We see that with intersex children, where the Right has had no legal concerns about medical interventions that are consistent with binary sex, but they’re very opposed to medical interventions for trans people that go against that binary. Trans people have really made salient the ways in which sex and gender need to be shored up with a whole medical legal system to create that binary.
AM: And as you point out, in an important article for Politico—The Supreme Court Case Over Trans Youth Could Also Decimate Women's Equality—these things are intertwined with women’s rights. Your piece not only resolves some of the issues that trans people raise, but also the supposed tension between women's rights and transgender rights that TERFs and rightwing activists have tried really hard to fan.
I want to ask you about Skrmetti, but before we do, during oral arguments the trans community heard about something called “heightened scrutiny” over and over . In your legal piece Unsexing Pregnancy you wrote that this is when courts are aggressively skeptical of any law that classifies individuals on the basis of sex. For those of us who are civilians, what does that mean, and why is it so important?
NS: Sure. There are different traits which legislatures can use to create laws affecting groups of people differently. Most of these traits are not protected by law, and courts do not give them these traits a lot of deference but tend to defer to the legislature, which means they almost always uphold these laws.
By contrast, if laws use a protected class—like sex or race—then courts scrutinize them much more closely, to make sure that legislatures had a good reason, if it’s based on some real biological difference or is merely a sex stereotype.
AM: So I think the argument you're trying to make about Skrmetti, is that Tennessee is now asking the Supreme Court to make a special carve-out, an exception that says, Hey, not all laws based on sex need this heightened skepticism and scrutiny. And you fear that once conservative courts start pulling on that string, all kinds of things will come unwound, including the whole foundation for law around women's equality.
NS: Absolutely. For decades, whenever a legislature has classified a group on the basis of sex, courts have applied heightened scrutiny, and there have never been any exceptions, not for any reason. If a law classifies on the basis of sex, then courts must give it heightened scrutiny. The Supreme Court itself said that we must carefully scrutinize these laws.
AM: So the Right may be leveraging the justices obvious animus toward trans people as a disfavored minority the Court obviously doesn’t want to help as a backdoor to gutting five decades of women’s sex discrimination law. For decades, TERFs and the Right have been trying to pit trans rights and women’s rights against one another, based on the idea that these are two opposing groups engaged in a zero-sum struggle: so if trans people gain rights, women must have lost them. But you’re saying legally that’s completely untrue: the claims are interdependent and trans losses are actually women’s losses as well.
NS: Yeah, absolutely It’s all about putting men and women into boxes based on the sex they were assigned at birth, and then expecting them to assume certain roles.
AM: Yet with Skrmetti oral argument, we had six evangelical Christians on the bench asking about everything but heightened scrutiny, including medical regret, which was not at issue.
NS: This argument about regret has become very central to abortion too. It’s the same arguments about biology and the body and regret over medical decisions being recycled. In Skrmetti, the ACLU was even conceding that issue, and they weren't even asking for Skrmetti to be struck down. They were just saying, Please, please, just say that heightened scrutiny applies here, and we'll remand this back to the lower court for reconsideration.
AM: In your piece, The New Law of Gender Nonconformity, you say trans discrimination is not gender nonconformity discrimination. Was this again about courts’ need to stop putting us in boxes based on our birth-assigned sex?
NS: When courts were applying that gender nonconformity doctrine, if it was a trans woman they would say, Well they were born a man. In some of the early decisions courts would even say, This is a man who is presenting in female gendered behavior and the employer can't discriminate against them based on that. But I think this is wrong, because it contravened the plaintiff's own identity. It’s harmful to say to them, This is a man.
AM: So the problem with using gender nonconformity as the basis for trans legal rights is at least twofold. First, it leaves trans women defined as men and vice versa. And second, even when trans women win it’s because courts uphold their right to be feminine men, which completely disconfirms who they are. So even our winning cases are building a case law foundation in which our identities are being erased.
NS: Yes. And I don't really blame feminists for this, because it was where we were for a long time, when a long time all the interrogation was about gender discrimination where you shouldn’t expect women to not do certain jobs or be caregivers or dress certain ways . The idea was as long as people could do or be whatever they wanted regardless of their sex, that was enough. There wasn’t much interrogation of the idea of sex. But with trans and intersex people, now we can see that it isn’t enough, because we're still putting everyone into boxes based on their birth-assigned sex.
AM: You actually make a very strong statement that treating trans discrimination as gender nonconformity discrimination is “not only analytically incorrect, but also does serious damage to the cause of sex equality.” What did you mean?
NS: Recognizing transgender people has left courts very confused. How do they think about the categories of men and women without biology? They're left scrambling, and so they end up falling back on gender stereotypes. Like in a case where a trans girl wants to play girls sports or a trans boy wants to use the boys’ bathroom, courts say, Well, we know this plaintiff is a girl because they always wanted to wear dresses. Or, We know this plaintiff is a boy because he always wanted to play with trucks. And given the state of the law in society, the advocacy groups that bring these cases are probably more successful with people who fit these stereotypes. But as Noah Ben Asher has written in “Transforming Legal Sex,” the law is moving—if inconsistently—towards allowing self-identified gender identity to be the basis for sex.
AM: You also analogize this to the law and race.
NS: Yes. We used to have really detailed racial laws, like the One Drop Rule: so if your great-grandfather was one-quarter Black, you were Black. And so on. But today we don't have a lot of racial classifications. And where we do, it's a matter of self-identification, right? That would be my goal for where courts go with sex.
AM: In “Rethinking Sex As Biology Under Equal Protection” you write “ Sex as biology under equal protection is wrong,” because courts are stuck trying to sort out illegitimate from legitimate kinds of discrimination based on sex stereotypes. Such as in to whom employers must give the right to parental leave. But you’re saying there is no metaphysical underlying reality to biological sex: it’s just another social class. Which is the conclusion Paisley Currah comes to in his book, “Sex Is As Sex Does.”
NS: Yeah. And to be clear, it’s not that there's no connection between legal sex and biology. I don't want to ignore the connections that there are, I just don't want that to be what defines the group for legal purposes. For instance, agreeing that restrictions on reproductive rights disproportionately affect women doesn't mean we have to define women as people who have uteruses.
AM: Judith Butler argued that when it comes to social constructedness, we like to think of sex as “raw” and gender as “cooked”. But both are actually “cooked,” and sex turns out to have been gender all along. It sounds like you are providing the legal foundation for enacting this famous bit of queer theory into law.
NS: I do cite Butler a bit. It’s not hard to see that if a doctor has to decide whether an intersex child is male or female, then obviously sex is not just a biological fact of nature. And then we layer on top of that so many rules and regulations, it’s clear that much of what makes us male or female is not some innate part of our biology.
AM: Right, it’s actually gender.
NS: There’s been a lot of public attention paid to debates between feminists and trans rights activists, right? Because people fighting is a better media subject than people getting along. There have been all these debates about, you know, language like “pregnant people.” But I think we can recognize that there is something called pregnancy that mostly happens to women, but sometimes happens to people who identify otherwise. As an example, the Pregnant Workers Fairness Act is great here, because it gets rid of this question about sex—it just provides accommodations based on pregnancy.
AM: The Pregnant Workers Fairness Act is also great because its very name enrages TERFs.
NS: Focusing too much on biology is at the root of women's oppression and of trans people's oppression, because it ignores the social facets of many of these phenomena. Pregnancy is more than just a biological phenomenon: it is a social phenomenon that requires greater accommodation than just for the body.
AM: Your article didn’t mention it but it’s not clear to me how these courts could accommodate non-binary or genderfluid people, unless they follow your advice to look at biological impacts regardless of the biology of the plaintiff.
NS: Yeah, as much as transgender people present difficult questions for the law, non-binary people will be even more difficult. Right now, trans plaintiffs are seeking access to sports or bathrooms that align with their identity, which doesn’t challenge binary sex segregation. Whenever a court finds in favor of a transgender plaintiff, they always point out that they're not challenging the system, they just want to be put in the right box within it. A non-binary person is going to be much more likely to challenge the system.
For instance, there is no reason that we have sex segregated bathrooms that relates at all to the biology of sex, right? There's nothing in biology that would support segregating the bathrooms, And so if there were to be a challenge to sex segregated bathrooms by a non-binary person, I think it should be successful.
AM: Thank you
Riki Wilchins writes on trans theory and politics at: www.medium.com\@rikiwilchins. Her two last books are: BAD INK: How the NYTimes SOLD OUT Transgender Teens, and Healing the Broken Places: Transgender People Speak Out About Addiction & Recovery. She can be reached at TransTeensMatter@gmail.com.