The Trump Administration’s Onslaught Against Trans Rights Continues
The Justice Department wants to make it legal to fire someone for being trans — or for just not resembling what it thinks a woman should look like
There is no way to embrace discrimination against transgender women without embracing discrimination against women. This should have been painfully obvious to all of us a long time ago. But, if you somehow missed the memo, the Trump administration’s latest attack on trans rights — formally urging the Supreme Court to rule that firing transgender and gender nonconforming people for how they dress does not constitute workplace discrimination — should clue you in.
The matter centers on a Supreme Court case, R.G. & G.R. Harris Funeral Homes v. EEOC. The plaintiff in that case, Aimee Stephens, was fired because she wore women’s clothes on the job. Her employer, Harris Funeral Homes, required “male” employees to wear suits and “female” ones to wear skirts; because Stephens is transgender, her employer did not recognize her right to choose the skirt. She sued under Title VII of the Civil Rights Act of 1964, which specifically prohibits firing someone on the basis of “race, color, religion, sex, or national origin.”
The central question here is whether discrimination on the basis of transness counts as “sex” discrimination. The Sixth Circuit Court of Appeals, which ruled in 2018 that Stephens was unlawfully fired, has affirmed that it does. As Ian Millhiser writes at ThinkProgress, transphobia is predicated on the assumption of someone’s assigned sex, and the belief that their behavior or appearance doesn’t line up with that sex. Therefore, gender identity discrimination is always sex-based discrimination: “An employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.”
After losing its case, Harris Funeral Homes petitioned SCOTUS to review it, and here we are. The Supreme Court will be ruling on Stephens’ case, along with those of Don Zarda and Gerald Bostock (two men who were fired for being gay), to formally determine whether LGBTQ employees are covered by discrimination law. Trump’s Justice Department filed a brief on the Stephens case, arguing that transgender employees ought to be specifically exempted from sex-based protections. In essence, the Justice Department argues that sex-based discrimination only occurs when employers treat cisgender women differently than cisgender men, or transgender women differently than transgender men: “Treating all transgender persons less favorably than non-transgender persons does not violate that rule.” For instance, Stephens’ firing supposedly wasn’t sexist because “Harris Homes would [not] have treated a female who sought to dress as a male any differently from the way it treated Stephens.” If you fire both trans men and trans women, you’re firing trans people, which, in the eyes of the Trump administration, is not gender discrimination.
Yet it is in fact sexist to fire a cisgender woman for wearing pants. Title VII is recognized to apply to sex-based stereotyping, which can cover a wide range of unjust practices. It could mean insisting that a cis woman can’t be promoted because she should be at home raising babies, or mandating that every woman born with a vagina has to wear a skirt. It could also mean forbidding a trans woman to wear a skirt because of her presumed anatomy. In all of those cases, the employer is making assumptions about an employee’s reproductive anatomy, and making decisions about that employee’s future based on how they think people with that reproductive anatomy ought to behave. But unfortunately, many people — including many self-proclaimed “feminists” — only see the problem when a cis woman is at risk.
The Trump administration’s war on transgender communities dovetails with the public resurgence of the TERF — short for the “trans-exclusionary radical feminist” — movement. The TERF movement has its roots in the bigotry of certain second-wave feminists — Germaine Greer, Mary Daly, and Janice Raymond helped codify the ethos — but its current incarnation operates the same way as any other 21st-century hate group. Forums like Mumsnet draw in and radicalize new recruits, and those recruits in turn haunt blogs and social media with virulently transphobic propaganda disguised as feminist truth-telling.
Transphobic policies may be instituted on the grounds of “protecting women,” but in practice, all they do is institute a hellish panopticon where everyone is constantly inspected for signs of gender nonconformity.
The movement has been alarmingly successful. What was once a rotting, abandoned cul-de-sac of ’70s ideology has become the face of mainstream feminism in the U.K. Yet the TERFs’ connection to the larger feminist movement is mainly vestigial at this point; TERF members book sympathetic guest spots on Tucker Carlson and draw their funding from right-wing groups like the Heritage Foundation.
The ubiquity of TERF propaganda means that we’re used to seeing right-wing transphobia framed in terms of “concern” for women. Trans bathroom access, for instance, has been vehemently curtailed by Republican legislators; meanwhile, the TERFs, who will deny until their dying day that they are Republicans, insist that barring trans women from the women’s room is a necessary protection against sexual violence, or that women and girls would be “traumatized” by the knowledge that someone with a penis was in the room. (Penises are also in the room every time you go to the post office or the grocery store, and they’re all roughly as visible as they would be if they were one bathroom stall over from you, but this argument has never held itself bound to our earthly logic.) Transgender women themselves are often blamed for the existence of the gender binary — by presenting in a feminine way publicly, they’re supposedly curtailing the right of other women to be unfeminine.
This is a lie. Trans rights don’t narrow the scope of acceptable gender expressions for cis people; they inevitably broaden them. The Trump administration’s filing confirms what transgender advocates have been warning us for years: When we try to set firm limits on who’s allowed to identify as a woman, or what women are allowed to look like, cisgender women invariably suffer too. Bathroom laws may be intended to harm trans people, yet the people who actually get tossed out of women’s bathrooms are often butch cis women who strike outside observers as “masculine.” In the same way, a policy intended to punish trans women for wearing dresses could easily be used to fire a cis woman for refusing to wear makeup or high heels. The Trump filing specifically notes that if anti-trans discrimination is outlawed, it will become harder to enforce rigid gender roles on cisgender employees as well: “[This] approach, which equates considering sex with discriminating because of sex, would invalidate all sex-specific policies, from restrooms to dress codes.”
If so, wonderful. Ally McBeal did not popularize the concept of unisex restrooms 20 years ago for your employer to make rules about how you can pee in 2019. Transphobic policies may be instituted on the grounds of “protecting women,” but in practice, all they do is institute a hellish panopticon where everyone is constantly inspected for signs of gender nonconformity, and where the only way to stay safe — or employed — is to present as the absolute most stereotypical version of your assigned sex at all times. That doesn’t mean these policies affect cis and trans people in the same way, or to the same extent. Cis women face social opprobrium when we defy gender stereotypes; trans people are murdered for it. But it does mean that, if we make failure to conform to gender roles a fireable offense, plenty of cisgender people will be fired.
Harming and controlling women under the guise of “protecting” them is a gambit as old as patriarchy. Transphobia is only one more manifestation of that ancient system. The shame here is that so many women refused to see it coming — even when they had every reason to know that by rushing to deny other women’s human rights, they would end up losing their own.