Searching through old boxes of briefs last week, I came upon Ann Hopkin’s brief to the Supreme Court, filed by her attorneys James H. Heller and Douglas B. Huron in 1988. For those who don’t have access to the subscription databases (and it may not even be there) or to an SC depository library, here it is. Price Waterhouse v. Hopkins, Brief for Respondent, June 1988. The scanning job is not perfect, so be forewarned.
Another excerpt from Chapter 2. The notes are not included since they’re still a bit messy. You can view the 2012 committee bill hearing here, starting at about 1:45 minutes in. I usually show it in my Trans Theories and Politics class.
In 1977, Tennessee legislators voted to prohibit individuals from changing Tennessee birth certificates to indicate their new sex. While policy in Ohio and Idaho achieves the same end, Tennessee is the only state where legislators affirmatively voted to deny this recognition. A bill to reverse this and make it possible to change the sex marker on birth certificates issues by Tennessee was introduced in 2011 and considered by the Tennessee House Health and Human Resources Subcommittee the following year. Because rules for sex classification are usually decided at the administrative level—as common sense “housekeeping” rules that require no public comment or, more recently, as publicly promulgated policies—it’s a very rare thing for lawmakers to expound publicly on the parameters of sex. The exchange between Republican Senator Joey Hensley and two of the bill’s advocates—LGBT rights attorney Abby Rubenfeld and Marissa Richmond, president of the Tennessee Transgender Political Coalition—succinctly captures the points of disagreement. Rubenfeld ends her remarks to the committee by comparing changing gender to changing one’s name.
Rubenfeld: There is no problem with changing birth certificates in this way, to change somebody’s name or to change their gender designation….And changing this law…will do a great service to the few people that need to do this whose lives are prejudiced and are damaged in significant ways because they can’t make this vital correction….Birth certificates are routinely changed and there’s never a problem about that. We change names on birth certificates. You can go to court here in Nashville and get your name changed for any reason that you want and change it on your birth certificate, any reason that you want and you’ll have a new birth certificate that has that name with no record of your old name.
Senator Joey Hensley: So you say that you can change the name but can you change the date or the place of birth on your birth certificate?
Abby Rubenfeld: I don’t think so. I don’t know why anybody would want to.
Joey Hensley: Well, I would think that would be the same way this is. That’s a fact when someone is born, they’re born at a certain time, they’re born at a certain place, and they’re born a certain gender. And the birth certificate is just designating that.
Abby Rubenfeld: But they’re also born with a certain name and it’s changed easily.
Senator Hensley: Names can be changed. Names are something given to a person after birth.
Abby Rubenfeld: But gender designation I would respectively suggest is also just given to a person at birth….But for people who take this extraordinary step to correct their physical gender to match what they really are, that is a fact for them, it’s a fact from birth.
Senator Hensley: We just disagree about that.
The bill would not only have reversed Tennessee legislation on the question and aligned its policy with that of the 47 other states that allow one’s sex designation to be changed on birth certificates. Because the requirements in the bill did not list surgery or body modification of any kind, passage of this legislation would also have catapulted Tennessee to the forefront of policy on the issue at the time. The rule in Tennessee would have been essentially the same as the Department of State’s passport rule, and the two other states with the most liberal criteria for changing sex on birth certificates at the time, California and Vermont, as well as the District of Columbia.[iv] While the advocates and the bill’s sponsors couched their argument in terms of physical transition—the traditional narratives most intelligible to elected officials and the public alike—the evidence required in this bill was a sworn statement from a physician, psychologist or social worker “that the gender of the person had been changed.” Below the questioning turns on what evidence would be appropriate for a change of sex:
Senator Hensley:….But what exactly has to determine someone’s gender. I notice this amendment lists several different people that can have a sworn statement. Physician and then it goes ahead and I don’t know why you list all of these but a surgeon and an endocrinologist and a gynecologist and internist, a neurologist and psychiatrist. Those are all physicians. And then you go to psychologist or a social worker. How can a social worker have a sworn statement about someone’s gender?
Abby Rubenfeld: I would just point out that in this time when we’re trying to have limited government I don’t know why legislators can make that decision either.
Marissa Richmond: Those categories are based on what the US State Department picked for the gender change policy for the passport, and so all of those categories are professional categories who treat and deal with transgender people. And that’s why those specific categories were selected.
Senator Hensley: Is this someone who has gone through all the physical changes to change their gender or is just this someone that cross-dressers, they can change their gender.
Marissa Richmond: Cross dressers are not defined as someone who has changed their gender so they would not fall under this particular law, if this bill becomes a law.
Senator Hensley: What does designate when someone has changed their gender?
Marissa Richmond: ….That is a definition determined by the medical community, and in consultation between that care provider and the patient and to determine what procedures and steps are necessary. And for certain people, for instance in a wheelchair, they would not be allowed in certain cases to get certain procedures but nonetheless their gender change would have actually occurred. But yet the medical profession may not be willing to take it a full step. But they would still have transitioned, changed their lives, they would assume a new gender and this bill would allow them to have a document which then they can take out and carry on with the rest of their lives and matching up all their other documents at one time.
Senator Hensley: But you’re adding social worker as somebody that can have a sworn statement. Even if this bill passed it would seem like adding someone who was a social worker is a stretch.
Marissa Richmond: We can remove that particular category.
Senator Hensley: I don’t support it anyway but adding a social worker is a stretch.
Senator Hensley simply doesn’t believe sex can change. As he puts it—”we just disagree about that.” But, he advises the advocates, even if sex can change, that change shouldn’t be based on the sworn statement of a social worker. At that moment in the hearing, the bill’s sponsor, Jeanne Richardson, Democrat from Memphis, stood up and offered to remove psychologist and social worker from the bill. She then made a final statement:
For someone to have surgery or to change their lives this totally is a very very serious thoughtful process. This is not something that’s done lightly….It has to do with the person and their personhood and what they are, it’s as essential as anything could be about them. There are very few people in our society that make this decision, but I respect those people that do….So when they make that decision, and we have medical professionals who will back them up, I see no reason why the rest of us should challenge that.
Despite Richardson’s plea to her legislative colleagues to think of gender identity as a central aspect of personhood that they should refrain from interfering with, a few minutes later the bill voted down.
I know some trans people aren’t interested the fight over Trump’s ban on transgender people serving in the military. But, as I learned Friday at the Transgender Law Institute, if the ban is upheld by the Supreme Court, its effects will go far beyond the armed forces. According to Shannon Minter, “the negative ramifications of a loss in the courts will be terrible.” Minter is the Legal Director of the National Center for Lesbian Rights, which, with GLBTQ Advocates and Defenders, is challenging the ban in the courts.
A little background: In June of 2016, the Department of Defense announced that transgender people could serve openly in the military. The military would also provide transition related medical care.
Six months into his first term, Trump announced via (where else) Twitter that the ban would be put back in place.
The same massive bureaucratic apparatus that had, after a year of research, found the ban irrational and developed a thorough implementation plan for allowing trans people to serve openly and provide transition related medical care was forced to do a 180 degree turn and come up with a justification for reversing the policy.
And did it ever. In February of this year, Secretary of Defense James Mattis released a report that recommended reinstating the ban. Most of the arguments supporting the recommendation were boilerplate right wing drivel: the ideas of people with penises showering with women, the “disproportionate cost” of provision of transition related care, and ye olde “unit cohesion” defense. Trans rights advocates have lots of experience responding to these tired canards. You can see how they do so in reply briefs here and here.
The fourth justification is the most worrisome. It takes state-sponsored transphobia to new heights by questioning the very validity of transition-related medical care as a treatment for gender dysphoria. In our brave new post-truth world, Mattis’s underlings cherry-picked unfounded, unpublished, and highly selective research to suggest that hormone therapy and/or surgery do little to help transgender people.
This argument jibes with the right wing’s anti-transgender agenda, most clearly articulated in Ryan Anderson’s When Harry Became Sally: Responding to the Transgender Movement (Encounter Books, 2018), which suggests that transgender people need compassion, but not equal treatment or transition related medical care. You can see this agenda in the new Department of Defense policy: “Transgender persons” without a diagnosis gender dysphoria can serve in their “biological sex.” (Biological sex here means sex assigned at birth.) According to the report, the policy is not a ban on trans people per se, just a ban on people who happen to share the defining characteristic of transgender people–a disconnect between one’s gender identity and the sex assigned at birth.
A reasonable person might think that truth will ultimately prevail, that a policy that ignores the medical and psychiatric consensus and that discounts the lived experiences of hundreds of thousands of transgender people cannot stand. But this is the same administration that changed the rules to allow asbestos, a known carcinogen, into new products. This is the same administration that has proposed rolling back fuel economy standards, despite the fact that its justification is a “denial of basic science.”
Eventually, these cases will be heard by the Supreme Court. If the Court decides that the ban is constitutional, it won’t just affect those who want to serve in the military. The Court’s imprimatur on a report that rejects the idea that surgery and hormones are effective treatments for gender dysphoria will have alarming ripple effects in every area where advocates are working to ensure that trans people get the medical care they need, from prisons to workplaces to public benefit programs such as Medicaid and Medicare. If the Court ultimately sides with the Department of Defense, the transition-related health care of those of us not in the military could well be affected. The Court’s opinion would certainly be used to justify decisions not to pay for surgery or hormones.
I want to put the Department of Defense policy in a larger historical context. Before Trump, transgender people were harmed by sex classifications in laws and policies designed to give men more rights and resources or to use M/F for surveillance purposes in descriptions in state records and on identity documents. As I argue in my forthcoming book, trans people were not the intended targets of these policies, we just found ourselves occupying the residual category of legal sex classifications—we’re what the system didn’t anticipate. Even though it’s no longer constitutional to treat men and women differently, classifying people as M or F is still baked into law and policy.
That’s why the battle in the first decades of the transgender rights movement has been to show that the category of women includes trans women and vice versa, that sex and gender discrimination laws cover trans people, that the M or F assigned at birth might not turn out to be the right one for the individual. Over time, these efforts have started to succeed and courts, administrative agencies, and legislatures are coming around. Of course there has been resistance, but it has been gradually evaporating as a result of education and the immense number of trans people coming out.
But the ground has shifted with the Trump administration. Now transgender advocates are no longer fighting accidental erasure. While previous conservative administrations took a more passive approach by simply not supporting trans rights, Trump and Pence are working to codify transphobia by enshrining it in policy across as many agencies as possible. (Their efforts were anticipated by attempts in red state legislatures to make bathroom access based on the sex assigned at birth.) With the Department of Defense policy, transgender issues have been politicized to a degree never yet seen. (Okay, I am overstating the difference in transphobia before and after Trump a little, but the I do think 2017 marked a real shift.)
One might argue that transgender rights movement lost something when it was packaged as a new identity politics group. Absent a handful of historical contingencies—transphobia among second wave feminists, the intensity of the pathologization of transsexuality, Reagan, the revanchist 1980s and the move to assimilate to the norms of the market–it might have been possible to articulate equality for people whose gender identity or expression confounded traditional expectations with broader movements for distributive justice. Socialist feminism, with its attention to bodies, the imbrication of capitalism and gender norms, and the material conditions that make life livable, would have been a better option.
In any case, identity politics, meshing neatly with neoliberalism, was to provide a path to acceptance into the status quo. The neoliberal contract with identity politics was to guarantee formal inclusion, representation, and political equality in exchange for abandoning more radical claims to justice. Writing about black movements for equality, Asad Haider suggests identity politics is “the neutralization of movements against racial oppression.” And the same could be said, has been said, about transgender identity politics.
But the Trump/Pence administration has upended all that, it has canceled the contract. Working closely with the organized religious right, trans identity itself has become a target, as the DoD report makes clear. The trans rights movement now finds itself in the unenviable position of fighting the right wing’s policitization of trans identity with a politics that was conceived when diversity and inclusion were considered positive values. It might be time to shift to a new terrain.