President 45* has yelled repeatedly about his stated intention to save federal nondiscrimination measures enacted by executive order under President Obama. Trust us, they say, because Ivanka and Jared scuttled his new religious order targeting my brothers and sisters in the LGBT community.
So why is it so hard for me, as a transgender woman, to believe anyone when they talk about preserving legal protections for my brothers and sisters?
Well, beyond the obvious ass-kissing 45* does for his base alongside the spouting-off of foreign policy from his Twitter handle with all the temperament of a toddler, he also nominated Neil Gorsuch to serve in Scalia’s place on the SCOTUS. The problem with evaluating his judicial philosophy, from the perspective of our community, is that he hasn’t ruled on that many cases in our realm of political concern, as LGBT-issues go.
In fact, as Michelangelo Signorlie wrote at the Huffington Post, the best way to understand his personal opinion on LGBT rights might be to ask him.
But we aren’t wrong to think he’s dangerous for LGBT rights. What’s scarier is that our allies are making it easier for him to slide under the radar.
I’m done with letting people get away with talking about ‘gay rights’ like that somehow encompasses the entirety of political demands from the LGBT arena.
‘Gay rights’ are not ‘trans rights.’ ‘Gay rights’ do not represent ‘trans rights,’ except inasmuch as there can be transgender people who are straight, gay, AND bisexual (can you believe it?!).
Do some of our political priorities overlap? Absolutely. But it is a failure of intersectional feminism to let these nuances fall between the cracks.
How does a white gay man relate to the experiences of a transgender man of color looking to access OB/GYN services in downtown Kansas City? To transgender women?
For that matter, what does a cisgender gay man need with hormone replacement therapy or insurance protections to obtain gender confirmation surgery?
Or legal protections stating unequivocally that they’re allowed to pee in the bathroom that matches their gender identity without a TSA-level pat-down?
Easy answer — there’s not a lot of overlap if you just rope ‘transgender’ political priorities in with ‘gay’ political priorities. Of course, transgender people can be gay, too. But the point is that there isn’t 100% overlap between those particular Venn diagrams.
HOLD ON. Before you go yelling that we need to work *with* our allies instead of against each other (I absolutely agree), let me suggest this idea from another direction.
The ways in which we represent our politics matter. I sort of feel like this is a universally-understood maxim, with people falling somewhere along the discussions on either side. This is why there is a never-ending debate between Black Lives Matter and the ‘all lives matter’ nutjobs. Or the Pro-Choice/Pro-Abortion distinction, even though I’m not sure of a single person who is actually PRO abortion.
I honestly can’t remember how many think pieces I’ve read in the last month explaining this nuanced difference that some people still seem not to get: labels matter. The way we talk about our politics matters.
People pick out labels to represent issues in a way most palatable to their political fervor, which leads me to my next question:
Have you ever heard something like ‘transgender people are like the unwanted stepchild of the LGBT movement?’
If you’re at all part of LGBT circles that include any element of the transgender or gender non-conforming communities, you probably have. If you aren’t part of those circles, you’re even less likely to consider transgender rights something worth your time.
In either case, have you considered that our constant, repetitive framing of ‘LGBT’ as ‘gay rights’ might be holding the movement back? The reason many transgender and gender non-conforming people feel like we’re the ‘unwanted’ members of the LGBT movement is because it feels like we just ‘get roped in with the gays’ so that we get out to vote, but that our political priorities are met with an almost casual indifference (I know many of my bi friends who feel similarly, even if for different reasons, but there’s a lot of erasure happening in LGBT circles, and it feels like — to me, at least — it’s been happening more and more since 45* took office).
How are transgender women of color, for example, supposed to react to the news that Gorsuch’s gay friends approve of his record on ‘gay rights?’
People are glossing over the judicial record of Neil Gorsuch, particularly those gay men rushing to reassure the public that Gorsuch isn’t as bad as we thought. From the NY Times:
Against that backdrop, the judge’s gay friends — both Democrats and Republicans — find themselves vouching for him.
“I said, “Listen, I’m a liberal gay Jew from New England and you were appointed by George W. Bush, and I want to make sure I’m not going to be uncomfortable here,’” said Joshua Goodbaum, a former clerk of Judge Gorsuch, recalling his 2008 job interview.
So, the message, then, is that because he’s not awful to gay men, that he somehow gets away with the notion of a cleaner record? OF COURSE his *friends* would say that. The idea that his judicial record gets a ‘pass’ because of his friends’ ‘bipartisan’ approval of Neil Gorsuch should make you feel sick.
Even Teen Vogue, who has had some awesome coverage lately, is making the same mistake. Here they are, commenting that Gorsuch hasn’t ruled on ANY LGBT issues from the bench (they’re wrong):
According to Heavy, Gorsuch hasn’t had any cases directly involving LGBTQ issues, so it does make it hard to say definitively where Gorsuch will come down when faced with them. However, his past cases have prompted LGBTQ organizations to speak out against him.
Except that they missed that ‘gay rights’ don’t represent all issues, even for the LGBT population, or even for all gay men and women.
As Mark Joseph Stern notes at Slate, Gorsuch actually DOES have an actual judicial record on transgender issues, and it doesn’t look great (emphasis mine):
On transgender rights, Gorsuch has an actual judicial track record—and it isn’t likely to mollify progressives. Gorsuch once joined a decision flatly rejecting the constitutional claims of a transgender prisoner who alleged that she was being given inadequately low doses of hormone treatment in violation of the Eighth Amendment, and being housed in an all-male facility in violation of the Equal Protection Clause. The court found that prison officials had not inflicted a “cruel and unusual punishment” on the woman by giving her insufficient doses of estrogen because they had not treated her with “deliberate indifference to a serious medical need.” It also held that placing the inmate in an all-male facility—and forcing her to wear some male garments—“bears a rational relation to legitimate penal interest” and thus comported with the Equal Protection Clause. (The use of this lenient standard indicates that the court did not believe anti-trans discrimination qualifies as sex discrimination, which is scrutinized more closely.)
Equally troubling is Gorsuch’s vote in a discrimination case involving trans employees’ right to bathroom access. Rebecca Kastl, a trans woman, sued her employer when it forbade her from using the women’s bathroom until she could “prove completion of sex reassignment surgery,” then let her contract expire. The court acknowledged that Kastl had stated “a prima facie case of gender discrimination under Title VII on the theory [of] impermissible gender stereotypes,” which is mildly encouraging. But it then asked whether her employer had put forward some legitimate, nondiscriminatory reason for its treatment of Kastl—and concluded that it had, by vaguely citing “safety reasons.” An unsubstantiated, irrational fear of trans people in bathrooms should not be considered a legitimate basis for workplace mistreatment, and Gorsuch’s vote to the contrary casts doubt on his willingness to thoroughly scrutinize the real intent behind laws like North Carolina’s HB2.
Shall we recap? Judge Gorsuch (a) ignores medical science on gender dysphoria that suggests gender-affirming therapy results in better long-term outcomes for patients, (b) does not consider medically-suggested dosages sufficient to treat gender dysphoria, (c) forces transgender women to remain locked up in all-male facilities, (d) forces female transgender inmates to wear male garments, likely inflicting additional psychological trauma on the inmate, (e) considers the irrational fear of transgender people nondiscriminatory, and (f) has demonstrated an unwillingness to consider prejudicial sentiments against transgender people.
He’s incredibly dangerous, and fewer people are talking about his positions on transgender rights as a result of subtle erasure happening in our political discourse.