Introduction
By now, anti-transgender positions premised on the wellbeing and safety of cisgender women and girls have become standard fare. Over the past few years, a social movement of trans-antagonistic,
cis-woman-protective.
(CWP) rhetoric has surfaced, and just as swiftly, gained a foothold in public conversation. Consider some recent snapshots.
In 2018, the Women’s March was cast into controversy when multiple participants were accused of engaging in overt transphobia.
One marcher’s sign declared: “Trans Women Are Men, Truth Is Not Hate,” “Trans Ideology is Misogyny & Homophobia,” and “Woman is Not a ‘Feeling’, a Costume, or a Performance of a Stereotype! Woman is a Biological Reality! There is No ethical or moral duty to LIE to soothe a male EGO.”
In 2019, Donald Trump, Jr., repeatedly accused trans-inclusive athletics policies of “destroy[ing] women’s sports”
—a criticism he later doubled-down on and extended, calling trans women athletes “mediocre men . . . compet[ing] in women’s sports.”
In 2020, CWP rhetoric thoroughly permeated media coverage of trans issues in the United Kingdom.
The British media supported Maya Forstater’s wrongful termination tribunal,
following her dismissal for a series of transphobic remarks including amplifying a comparison of using gender-appropriate pronouns with the date-rape drug Rohypnol,
and they largely welcomed author J.K. Rowling’s view that transgender equality jeopardizes cis women’s progress.
And, in 2021, within hours of newly elected President Joseph Biden taking office, an executive order designed to enforce the Harris Funeral Homes holding sparked online fervor, causing the hashtag #BidenErasedWomen to trend internationally.
Thousands of social media users accused the order, President Biden, and the Biden Administration of “[u]nilaterally imposing trans ideology on a nation with no thought for women’s rights,”
“erasing the sex-based rights of women and girls,”
and “eviscerat[ing] women’s sports . . . [by placing a] new glass ceiling . . . over girls.”
Though rarely adopting such harsh language, the American legal community has not been immune to this line of thought. In case law, advocacy, and scholarship, this particular brand of trans-antagonistic rhetoric—which is to say, anti-transgender opposition rationalized on account of how transgender rights are thought to affect cisgender women and girls—has increasingly gained currency.
In response to the introduction of so-called “bathroom bills,” arguments premised on women’s safety concerns featured prominently in the hearings of state and local legislative bodies.
Likewise, in the lead up to the Harris Funeral Homes decision, a steady stream of amicus briefs purporting to advocate on the behalf of cis women urged against pro-trans outcomes, framing them as detrimental to cis women’s rights.
At the same time, the Trump Administration’s Housing and Urban Development Secretary, Ben Carson, who previously expressed concern that “big hairy men” would seek to enter women’s shelters disguised as transgender women,
proposed a HUD rule that would allow federally funded shelters to deny trans women entry.
The list could go on.
Responses have been mixed. One has been to broad-brush these views as “transphobic.” But that reaction is insufficient. Even if accurate, the rejoinder dismisses, rather than evaluates. The validity and soundness of the claims, then, remain unexamined. Of at least equal importance, with that approach, persons who hold and advocate these views are not likely to change them.
Alternatively, several commentators have taken aim at the individual forms of CWP legal argument.
As before, however, a piecemeal examination is not enough. Any such atomistic review fails to expose the problematics threading through the arguments at large. On the whole, many CWP arguments are built upon noxious stereotypes. Cisgender women are cast as helpless and in need of protection (most commonly in the form of cisgender male intervention), and trans women are portrayed as deceptive and opportunistic, not to mention animalistic, sexually predacious, and inherently dangerous.
Trans men, by contrast, are disappeared from the arguments altogether, and their identities and autonomy vanished with them.
Perhaps most troublingly, when considered in unison, CWP legal arguments present a vexing quandary. Inherently, CWP arguments position the relationship between transgender rights and cisgender women’s rights—and legal protections for either group—as acrimonious, if not directly oppositional. By that account, “wins” for transfolk mean “losses” for cisgender women and girls, and vice versa. Also, by that telling, to simultaneously hold feminist and pro-trans views is oxymoronic. Naturally, this last point is particularly concerning for the many persons who would like to support the social and political equality of both cis women and transfolk.
Thus framed, the time is ripe to conduct a closer study as to the origins and soundness of CWP rhetoric as used in legal argument, and this Essay begins that task. This Essay questions growing purchase in cis-woman-protective reasoning as a legal strategy to oppose transgender rights. By interrogating the logic of the CWP arguments marshalled in legislative hearings, case law, filings, and legal scholarship, this Essay will present the case that not only do these arguments come up short, but also that if the goal is truly to protect, support, and advance the interests of cis women and girls, the arguments are actually disadvantageous. In their place, this Essay suggests it is time to take up earlier invitations to more deeply probe the intersections between feminism and transgender legal activism.
Here is how the discussion will proceed. Parts I and II provide the necessary historical background for understanding the alleged tensions between cis women and the movement for trans equality. As Part I will show, using woman-protective rationales is not a recent development. Uncovering the history of such justifications illuminates how laws and policies rooted in woman-protective rationales have both extensively harmed women themselves and have been used to argue against the progress and equality of minority groups. The contextualization provides ample reason why the modern-day use of woman-protective rationales should give pause.
On that foundation, Part II turns squarely to the use of woman-protective rationales against equality for transgender persons. Section II.A begins with a snapshot of the current prevalence and recent trajectory of CWP rhetoric in legal argument. Section II.B surveys a range of sources to distill and categorize the most frequently raised arguments. Doing so not only allows one to better appreciate the relationships between individual claims, but also forms the basis for the Essay’s subsequent two-part appraisal. Section II.C then reveals the connections between modern CWP arguments and their historical priors. In doing so, it will make legible the harmful stereotypes and oppressive tropes that CWP arguments reanimate and solidify.
Working from the specific to the more general, Parts III and IV present the Essay’s critique. Part III adopts a narrow analytical lens and spotlights CWP arguments’ deficiencies on their own terms. It walks through the logic of each line of argument to show that many lack the necessary supporting evidence to work, are explanatorily weak, or are just plainly unsound.
Part IV then considers the arguments’ shortcomings from a wider perspective, following the arguments to their logical end points to surface some problems of application. It will show that CWP arguments are further flawed and, in fact, actually undercut cis women’s protection by relying on methods that injure cis women and girls.
Tallying up these problems, CWP arguments appear deeply flawed—if not detrimental—at least, if the aim of protecting cis women and girls is true. Building on that assessment, the Essay concludes with a final conjecture: Like many of the justifications of the past, in both intention and effect, CWP arguments are primarily pretextual. Stripping away the veneer of protectionism begins to expose the patriarchal motivations driving their current popularity.
By engaging with CWP rhetoric, this Essay has two larger ambitions worth outlining at the start. The first is theoretical, speaking to an important insight on the nature of discrimination: It repeats and evolves across identities.
These cross-identity transmissions and the associated evolutionary innovations, which this Essay collectively labels discrimination intergroup spillover, mean that discrimination (or its components) originating in one context or deployed against one population adapts to emerge in new contexts. Because of this dynamic, the author’s previous works concluded a central task of antidiscrimination efforts must be to “uncover and understand hitherto hidden patterns between forms of oppression.”
In the Parts that follow, this Essay underscores and expands that thesis, by juxtaposing how woman-protective arguments mobilized in the past have found a ready home in the present debate over trans equality.
The second is practical. It is to help prepare the ground for what will surely be an uphill battle in the future of transgender rights. Identifying CWP arguments provides a useful first step for a more coordinated campaign to refute them. Even more urgently, if the countless studies documenting a robust and stable relationship between conservatism, benevolent sexism, and negative attitudes toward transgender persons are anything to go by,
the federal judiciary’s recent rightward shift
signals that judges might increasingly credit arguments sounding in the protection of cis women and girls, for reasons completely unrelated to the arguments’ merit. Anticipating that and clarifying where CWP arguments are valid—and where they are not—will do much to clear the path for the continued movement forward on issues of transgender equality.