Across US, trans rights make election gains even as White House pushes back

Aleksandra Burger-Roy was genuinely shocked when she first heard about Question 3 on the Massachusetts ballot. The initiative asked voters if Massachusetts’ law preventing discrimination in public places should continue to include transgender people.

She’s been harassed and called gender-based slurs since she moved to Boston to study chemical engineering, but she generally considers it a safe place to be transgender, especially compared with the small town in Maine where she grew up.

“I continued to be shocked when the polls said that it’s close,” says Ms. Burger-Roy, a student at Northeastern University. She trusted Massachusetts voters to keep the law, but it concerns her that the group behind the ballot question was able to collect more than 50,000 signatures to put it on the ballot in the first place.

It’s been in many ways a remarkable past few years for transgender people, and much of American society seems to be inching toward inclusion. At least 20 states explicitly prohibit discrimination on the basis of gender identity – and on Election Day, 68 percent of Massachusetts residents chose to keep its civil rights protections in place. In Vermont, while Christine Hallquist lost, she made history as the first transgender candidate for governor nominated by a major party. From Virginia to California, more transgender candidates are being elected to statehouses and city councils.

The nation’s top businesses, too, have begun to make transgender-inclusive health care a standard part of the benefits they offer. Today more than 750 major US employers offer such coverage, compared with 49 companies in 2009, according to the D.C.-based Human Rights Campaign, which advocates for LGBTQ rights.

The Trump administration, however, has pushed back. It has been recalibrating how it enforces the nation’s civil rights laws, rolling back Obama-era directives that stated the core civil rights category of “sex” included gender identity and expression, even if those traits don’t align with someone’s sex assigned at birth.

In a memo made public last month, the administration proposed a legal definition of sex in federal civil rights laws that was in many ways the precise opposite. A person’s identity as a male or female is rooted in “immutable biological traits,” the administration said, and definitively proven by the sex marker assigned on a person’s birth certificate.

In many ways, the word “immutable” underlies much of the national conversation about transgender and gender nonconforming people today. To supporters of transgender rights, the idea of immutable biological sex is something bound to evolve, just as views of homosexuality did a decade ago. For conservatives, the immutability of sex has deep roots in Western ideas of an ordered reality, both as a theological attribute of God and as a description of the laws of nature.

As those two views clash, US society is struggling to find some common ground from which to craft transgender law and policy. And the 32 percent “No” vote Nov. 6 in liberal Massachusetts – the first state to legalize same-sex marriage – shows that ferment is not yet near resolution.

“There is a very large cultural anxiety around gender fluidity,” says Kyle Velte, professor at the University of Kansas School of Law in Lawrence. “But where does that cultural anxiety come from? Why are we so scared of gender fluidity?" Professor Velte asks, saying part of the answer stems from fear of a state of chaos.

“And I think that’s a really complicated question.”

“It could start with something as simple as, you know, ‘If I don’t have this [male-female] binary to define myself, then what does that say about me as a man?’ ” says Professor Velte, who studies the intersection of sexuality, gender, and the law. “What does it say about power? What does it say about gender discrimination? Masculinity is constructed in such a narrow way today, as is femininity, so that I think it scares people to think about a gender continuum, which is really the reality out there.”

For some scholars, this is a question of personal liberties – both for transgender people and for those who believe that gender is inherently binary, fixed, and based on the sex assigned at birth.

“Our minds and senses function properly when they reveal reality to us and lead us to knowledge of truth,” writes bioethicist and political philosopher Ryan Anderson in his book, “When Harry Became Sally: Responding to the Transgender Moment.” “And we flourish as human beings when we embrace the truth and live in accordance with it. A person might find some subjective satisfaction in believing and living out a falsehood, but that person would not be objectively well off.”

He argues that numerous lives have been “irreparably harmed” by medical transitions, citing the voices of those who “detransitioned,” or tried to reverse medical changes to their bodies and return to living as their sex assigned at birth. He also explores the rates of “desistance,” especially in children who eventually grow out of gender nonconforming behaviors and gender dysphoria.

Still, as a senior research fellow at the Heritage Foundation in Washington, Mr. Anderson also places a high value on personal autonomy and liberty. He thinks transgender people should be able to live their lives as they see fit, and should be treated with dignity and respect.

“But there are two things to separate here,” Anderson says in a Monitor interview. “The one is, should people be free to live out their gender identity as they understand it? The answer is, yes. If Bruce wants to live as Caitlyn, it’s a free country and adults are free to live how they want.”

“The second question is, however, should our antidiscrimination laws coerce other people into affirming that Caitlyn is a woman?” he continues. “Or will freedom be a two-way street?”

‘Dear Colleague’

In 2016, the Obama administration issued a “Dear Colleague” letter to federally-assisted schools and instructed them to respect the gender identity of all students and to address them with their preferred pronouns, even if official records listed them otherwise.

And in a move that outraged conservatives, the Obama administration also required that schools allow transgender students to participate on the sports teams and use bathrooms and locker rooms that aligned with their gender identity.

In the past 15 years four United States Courts of Appeals have ruled that transgender people are protected from employment discrimination by Title VII of the Civil Rights Act. They found that making a hiring decision because of someone’s transgender or gender nonconforming identity is discrimination on the basis of sex, referring to a 1989 Supreme Court decision that found that discrimination based on gender expression – how someone presents themselves with clothing, accessories, and behavior – was illegal.

Some conservative thinkers say the Trump administration memo is a corrective to what they see as capricious changes to the definition of sex.

“[Academics] and activists have been running around willy nilly changing the definition of sex,” wrote David Marcus at The Federalist last month. “It is farcical to think that the state can somehow keep up with such changes or pursue policies regarding sex without a workable and consistent definition.”

“In effect, [the definition] will mean that this objective standard will replace a hodgepodge of rules, regulations, and definitions of gender as it pertains to the federal government,” Mr. Marcus wrote.

From a very different point of view, the idea of an “immutable” order behind ideas of biological sex stands behind the reasoning of many transgender advocates and others.

“On one hand, our collective notions of maleness and femaleness are presumed so obvious that they need not be explained,” says Heath Fogg Davis, associate professor of political science at Temple University, and the director of its Gender, Sexuality, and Women’s Studies program. “On the other hand, the criteria for who is a woman and who is a man are so elusive that they cannot be explained without sinking into a morass of doublespeak and tautology.”

“And I am a huge advocate for gender self-determination,” says Professor Davis, author of the 2017 book “Beyond Trans: Does Gender Matter?” “Some people interpret that as, I want to get rid of gender altogether. But it’s kind of the opposite.”

“That individual autonomy, that say in who you are, in terms of who we are as a society, I think, that is so incredibly important,” he continues, critiquing the Trump administration’s efforts to define immutable biological sex.

The idea of transferring the authority to make those judgments to government agencies, especially civil servants “who will need to keep track of and inspect our genitals to designate and confirm our sex classification – this should be a hard sell, even and especially to religious conservatives,” Davis says.

Protections from Anchorage to Helena

As the visibility of transgender and nonbinary people has increased, policy has followed, says Shelby Chestnut, co-director of policy and programs at the Transgender Law Center in Oakland, Calif. Areas of the country that many wouldn’t consider progressive, such as Anchorage, Alaska, and Montana, have recently ensured that transgender people are protected from discrimination.

“There’s also been a huge movement in many states, particularly on the West Coast, around ... expanding gender markers beyond binary male and female, and real movement to explain that as a valid existence,” said Mx. Chestnut, who identifies as a transgender nonbinary person, meaning that they don’t see themselves as a man or a woman. They prefer to use the gender-neutral honorific.

Scholars often distinguish between the biological markers of “sex” and the variable cultural expressions of gender.

“Sometimes the two terms are used interchangeably, and I get that, because they’re correlated,” says Stephanie Sanders, an expert in biopsychology at Indiana University in Bloomington.

Yet even when considering the biology of sex, things aren’t necessarily simpler, Dr. Sanders says. She calls the definition of male and female a “social-medical convention.” The assertion that a sex of male or female can be universally declared based on biological features visible at birth is contrary to the current understanding of chromosomes, organs, brain structures, and genes, all of which contribute to biological sex, she says.

“Even if we’re just talking about biology, we have to acknowledge that there are these multiple dimensions, and we also have to acknowledge that we don’t know everything yet,” she says. Still, she adds, “neither sex nor gender is binary – there is a spectrum,” and words like “immutable” and “fixed” do not easily line up with current science.

Anderson, too, sees an important distinction between sex and gender, and agrees that a rigid masculine-feminine binary can be socially destructive.

“Sex is a bodily reality, and gender is how we as a society, as a culture, and as individuals give expression to that bodily reality,” he says. “But there are two kinds of errors to avoid: The one extreme would be rigid sex stereotypes where men are from Mars and women are from Venus, that boys are supposed to play with G.I. Joe and girls are supposed to play with Barbie.”

“On the other extreme would be an androgynous understanding,” he continues, “where men and women are interchangeable. There are no differences. Somewhere, a sound understanding of gender would avoid those two extremes as we try to think about, where do the sexual differences embodied as male and female make a difference for society?”

Northeastern student Burger-Roy says her own gender is “relatively simple” compared with other transgender people she knows.

Many now identify as nonbinary – including genderfluid, genderqueer, and gender nonconforming – terms used to separate oneself from a binary that’s built on biology. Burger-Roy, however, says she is a woman, plain and simple.

“People who grow up in the West know what a woman is,” she says, invoking the traditional cultural binaries that define expressions of gender. Like other students who are part of groups like Northeastern Pride, Burger Roy says one of her deepest desires is just to be able to live a comfortable and fulfilling life like anyone else.

‘Epidemic of violence’

There continues to be an “epidemic of violence” against transgender people, including bullying, harassment, and assault, according to Human Rights Campaign. This year is on track to see a record number of transgender people murdered, primarily trans women of color.

While studying in New Hampshire, Matt Storm says he was the target of a group of students who intended to do him physical harm. They did not succeed, says the D.C.-based transgender artist and photographer, but the incident made him aware of how his gender may impact his safety in different environments.

Along with violence, reports have found that many transgender people face economic and societal challenges. A study of the trans population in Washington found that 46 percent of trans people living in the city make less than $10,000 a year.

Mx. Storm hopes that the increased national conversation around transgender issues will lead to the creation of resources that benefit the community, such as medical research and educational resources for trans youth kicked out of their homes.

“We’re definitely seeing a moving social conversation, but we’re not necessarily seeing that benefit the lives of the most marginalized transgender people,” he says.

At the same time, one of the most vocalized fears is that antidiscrimination protections for transgender people will enable a man to pretend to be a transgender woman to gain access to women’s bathrooms and locker rooms, and then assault women or girls.

But researchers say that there is no evidence that any transgender person in the US has used their gender identity to gain access to a restroom to commit an assault. [Editor's note: The previous sentence has been clarified for accuracy.] And according to a new study from the Williams Institute at UCLA School of Law, there is no evidence that allowing transgender people to use public facilities aligning with their gender identity has had any effects on safety.

“What they’re articulating is that trans women are not really women, they’re just men in dresses, and they’re going to go into restrooms and they’re going to hurt and harm our precious women. So it’s based on transmisogyny and on sexism,” says Z Nicolazzo, an assistant professor for Trans* Studies and Education at University of Arizona.

Alex Marzano-Lesnevich, an author and professor at Bowdoin College, identifies as genderqueer. They’ve known that they did not fully relate to the gender they were assigned at birth for many years, but only came out recently after becoming more aware of nonbinary identities. “I felt grief, really, for not having language to identify what it was [that I felt],” says Mx. Marzano-Lesnevich, author of “The Fact of a Body: A Murder and a Memoir.” They first thought they must be a transgender man because they were unhappy being perceived as a woman. It was only in time, and with the help of friends and partners, that they recognized they could exist outside both of those binary identities.

Even though Burger-Roy sees herself in terms of a traditional gender binary, she thinks it’s “really cool” that so many of her peers understand their identity in a fluid and a decidedly mutable way.

“Personally, I can’t imagine my gender changing at all, it just feels so innate, so deeply rooted that I don’t – I can’t feel as if my gender would ever change, and I don’t feel it ever has,” Burger-Roy says.  

“But not everyone’s experiences are the same, not everyone may feel it as a deeply rooted thing,” she continues. “The big thing is to understand that not everyone’s experiences are the same, and only they can be the person who has a say into what their gender is.”