On June 15, the US Supreme Court ended legal discrimination in the workplace against gay and transgender people. It did so by ruling that the language of the Civil Rights Act of 1964, which prohibits discrimination because of sex, applies to sexual orientation and gender identity too.
Aimee Stephens, who had been fired from a Michigan funeral home when she told colleagues she would begin living as a woman, died from kidney illness a month before the judgment. But she had been present, in a wheelchair, when the arguments were heard last October. A crowd of well-wishers on the court steps chanted “We love you, Aimee!”
The Supreme Court has ruled momentously on gay rights already — in its same-sex marriage decisions, for example — but the country has lagged behind much of the world in tackling workplace discrimination against LGBT people. And Stephens will go down in history as having brought the first ever transgender-rights case to the highest court in the US.
Written by Neil Gorsuch, a conservative appointee of Donald Trump, the judgment is a shot across the bow of the president’s administration, which aggressively opposed Stephens’s suit. Just three days before the judgment, the US government published regulations cancelling protection against healthcare discrimination for trans people: courts will have to decide on whether the Gorsuch decision nullifies this.
Aimee Stephens, who brought the first transgender-rights case to the Supreme Court, outside the court in Washington DC in October © Bloomberg
The American battle over transgender rights signals a new round of culture wars along a human rights frontier I have called the Pink Line, dividing and describing the world in an entirely new way. I have been reporting on this frontier since 2012 while researching my new book, which tracks the consequences of an explosive new global conversation about sexual orientation and gender identity.
My native South Africa’s democratic constitution was the world’s first to outlaw discrimination on the basis of sexual orientation; a decade later, in 2006, South Africa legalised same-sex marriage. Attitudes have changed significantly, but there has also been an increase of violence against butch lesbians (subject to “corrective rape” and murder) and transgender women. I understand this, primarily, as a backlash against the visible space that they have claimed in this violently patriarchal society. In South Africa, as everywhere, the interplay between legal reform and social attitudes is an uneasy dance.
In India, the Supreme Court is at odds with Narendra Modi’s government over whether people have the right to “gender self-determination” (or “self-identification”): to set their own gender without medical certification. This right has already been granted in neighbouring Pakistan, and in 10 other countries in Europe and Latin America. The UK was going to follow suit but, according to a document leaked earlier this month, Boris Johnson’s government appears set to reverse this decision, following a fractious public debate.
Meanwhile, in Hungary, Viktor Orban’s government has just passed a law defining gender exclusively by the sex chromosomes present at birth. Poland might follow, if the incumbent Andrzej Duda wins the June 28 presidential election: Duda has campaigned on a “family charter” pledging to protect children from “LGBT ideology”.
A decade ago, the Pink Line was drawn against gay marriage. It still is, in most parts of the world. But consider the Irish referendum on same-sex marriage in 2015, or the fact that Duda’s primary opponent is Warsaw mayor Rafal Trzaskowski, a passionate supporter of LGBT rights. What is true in Krakow today was true in Cork five years ago: the reason why 62 per cent of Irish voters approved gay marriage was because, as the author Colm Tóibín put it, “everyone knows someone now who’s gay”.
As gay people have come out and claimed their rights — and their “normality”, through institutions such as marriage — the religious right has turned its sights on a new secular bogeyman: “gender ideology”. The battle against this has become the 21st-century ideological clearing-house for co-operation among conservative Christians the world over. It has telescoped all the issues to which they have hewed, from abortion and gay marriage to sexuality education, into one single theory allegedly at the heart of the western secular experiment: that gender — as a mutable social construct — exists in the first place, as opposed to sex, which in their view is objective, natural and divinely ordained.
It was Benedict XVI, when he was still Cardinal Ratzinger, who first started warning against “gender ideology” in the 1990s, and the call has been taken up enthusiastically by his otherwise liberal successor, Francis I. In 2016, the pope labelled it a form of “ideological colonisation” that sets out to teach young people “that everyone can choose his or her sex”.
Orban has called on his compatriots to resist being forced — by the European Union and by George Soros — into a world where “it is unclear who is a man and who is a woman, what family is, and what it means to be Hungarian and Christian. They are creating a third gender, they are ridiculing faith, and they regard families as redundant, and nations as obsolete.”
This approach was pioneered by Vladimir Putin, who in 2013 passed his “gay propaganda” law, drawing a line between Russia and the decadent, secular west. In Hungary, Orban has been taking aim at “gender ideology” for several years. His first step was to outlaw gender studies at Hungarian universities, in line with the primary target of the movement worldwide: to halt the teaching of the concept of gender to children.
There have been similar campaigns all over Latin America. In Brazil, one of the major planks of Jair Bolsonaro’s 2018 electoral campaign was to expel “gender theory” from schools. He has instructed the education ministry to prepare national legislation to prohibit teaching about gender at all in elementary schools.
Like Orban, Bolsonaro seeks popular cover for his encroaching autocracy by demonising “gender ideology” and communism. He promises to restore the natural order to a corrupt and decadent country exemplified by the way his leftwing predecessors granted rights to freaks and perverts.
Precisely because “gender ideology” is so amorphous, it needs an embodied target. And despite the small numbers of transgender people, they are the most visible avatars of the ideology. Nowhere has this been clearer than in the US, where some on the religious right have used transgender children to set the terms of a new culture war. They argue, for example, that having a transgender boy in the boys’ bathroom is an affront on their own children’s “religious freedom”.
From the US and Brazil to Poland and Hungary, tilting against “gender ideology” plays to a particular constituency: disaffected voters who perceive they have been marginalised due to identity politics gone mad, and that their needs have been subordinated to the interests of outsiders, be they foreign or dark or queer. In a survey last year, 31 per cent of Polish men under 40 said they believed “the LGBT movement and gender ideology” was the biggest threat to Poland — ahead of the climate crisis and Russia.
To this constituency, the special pleading of an entitled minority threatens to encroach on the wellbeing of the majority. What makes the politics of this so complex, in the US and the UK at least, is that people putting forward this argument find themselves aligned with some feminists.
In the line-up of conservative organisations submitting legal briefs in support of the funeral home’s right to fire Aimee Stephens was an unlikely bedfellow: the Women’s Liberation Front (or WoLF). WoLF joined the suit out of concern for “the safety and bodily integrity of the women and children whose lives would be placed at risk or ruined” if transgender people had legal rights as women, its leaders said.
WoLF is on the fringes of mainstream feminism but channels a decades-old position: that the experience of womanhood is defined by female sex characteristics. Most recently, the author JK Rowling expressed a version of this view, in a series of tweets and an essay that drew condemnation from several Harry Potter actors. “If sex isn’t real, the lived reality of women globally is erased,” one of Rowling’s tweets read. “I know and love trans people, but erasing the concept of sex removes the ability of many to meaningfully discuss their lives. It isn’t hate to speak the truth.”
Some feminists, like WoLF, argue that if people assigned the male sex at birth are allowed to become women officially, their presence in women-only spaces might endanger other women and children, or compromise the values and very raisons d’être of these spaces.
Others, like Rowling herself, acknowledge that trans people can be women, but insist on an assessment process rather than self-identification, given the history of violence by men against women. In her essay, Rowling writes that her own experience of abuse and assault informs her concern.
When Theresa May’s government opened public consultations on its proposal to introduce self-identification in 2018, it triggered intense debate in the UK. Some argued that self-identification would compromise the welfare of children, because it could lead to irrevocable treatment. Others suggested that predatory imposters would use female identity to commit crimes against women in bathrooms or prisons or homeless shelters. Their opponents retorted that these very assertions were proof of the fear and loathing trans people elicited, and why they need to be in charge of their own destinies.
Supporters of self-identification noted that the 2010 Equality Act already affords transgender women the right to enter single-sex spaces — and makes provision for their exclusion if this can be justified (in sports events, for example). The government itself argued that there has been very occasional abuse, adequately dealt with by existing criminal laws. There is, furthermore, no evidence from pioneering countries such as Argentina (where there has been self-identification since 2012) to suggest an uptick in gender-identity fraud, or an increase in gender-based violence as a result of it.
Still, the UK government seems to have accepted the arguments against self-identification, and will continue to insist on medical assessment. But here is its dilemma: to permit the continuation of this is to perpetuate a notion that is fast becoming outdated in medicine — that transgenderism is a pathology. The UK subscribes to the International Classification of Diseases (ICD), which provides the global codes for diagnoses. In 2019, the World Health Organization amended the ICD so that gender incongruence — the new term for gender identity disorder — would be moved out of “mental disorders” and into “sexual health conditions” in 2022. However, to date, very few countries have depathologised gender identity.
According to Eric Plemons of the Trans Studies Initiative at the University of Arizona, what makes the debate so fraught is that it “is not just about health. It’s about morality and politics.” The transgender rights struggle is not just about access to healthcare, or even about freedom from discrimination and violence. It is also, emphatically, about the right to be acknowledged or affirmed for who you are, and the right to decide this for yourself.
Unlike “gender dysphoria”, which measures pathology, “gender congruence” measures “the degree to which transgender individuals feel genuine, authentic and comfortable with their gender identity and external appearance”, as the originators of the concept phrased it. This mirrors a broader cultural revolution in understandings of the body, from “illness” to “wellness,” a catchphrase of our times.
From diet and exercise to anti-ageing regimes and cosmetic surgery, there is “an increasing understanding of health as being about optimisation and self-actualisation rather than cure”, Plemons said to me.
Plemons, a medical anthropologist who is transgender himself, spoke of how the discourse previously owned by transgender people — “I’m a female trapped in a male body” — had “become the lingua franca of everyone: ‘I’m a thin person trapped in a fat body,’ ‘I’m a beautiful person trapped in an ugly person’s body’ . . . ” Transsexualism was now “just one more in a number of . . . discourses about self-optimisation: ‘I want to be the real me.’”
And, of course, you are the only person who could know who the real “you” is. Hence the call, by trans people, for the right to define themselves, without the often humiliating and discriminatory evaluations by psychiatrists and other doctors. But, as so often happens in human rights discourse around “minority rights”, some voices argue that the rights of the majority run the risk of being compromised.
The controversy has been sharpest around the rights of children to transition. This is the consequence of a fundamental shift, alongside the medical and information revolutions, in how children are raised, in the anglophone world in particular. Joel Baum, of the American organisation Gender Spectrum, which advocates for trans youth, put it to me this way: “The idea that ‘children should be seen and not heard’ doesn’t hold any more. So when we start asking children, ‘Who are you?’ they tell us. It is our responsibility to listen to them.”
This has become one of the most contentious tenets of the new transgender advocacy movement: whether parents should “listen” to children who asserted a transgender identity, or push back against it if they suspected it was just a “phase”, a form of rebellion, or even — as some parents believed — a “social contagion” that was the result of intense peer pressure, online and off.
Erica Anderson, a prominent American psychotherapist who is transgender, has expressed concern that “a fair number of kids are getting into it because it’s trendy . . . [and] in our haste to be supportive, we are missing that element”. Anderson told me she was “deeply concerned” about a “future generation, some of which are going to say it was necessary, but others who will be angry, and critical of health professionals who didn’t properly vet these decisions”.
Already, a few such voices are being heard, from people who have “de-transitioned”, and are sometimes called “regretters”. In her book Trans Kids, the sociologist Tey Meadow notes that “the regretter discourse” serves “as proxy, in some cases, for arguments against early transition” — although the data showed that “only a tiny percentage of individuals who make full social and medical transitions regret those decisions”.
I interviewed an American lawyer named Dee, whose 19-year-old son Todd had transitioned to masculinity against his parents’ will. Dee blamed the healthcare industry, which she believed was using Todd as a “guinea pig” and had “caved in” to the latest “political fad” for the purposes of profit. But Beth, another American mother, affirmed her son Liam’s gender transition: despite her initial anxieties, she watched him bloom out of suicidal depression into a self-confident young man. Beth sees Liam, and his trans peers, as pioneers.
Both Dee and Beth call themselves feminists. But while Dee sees Todd’s new gender identity as an understandable “capitulation to patriarchy” given the pressures on young women, Beth sees her acceptance of Liam as an expression of her own feminism, which taught that “gender is a construct anyway and people should be accepted for who they are”.
Liam is one of the subjects of my book: transitioning saved him from adolescent self-harm, and he is now a confident graduate student. I also write about Rose, who “de-transitioned” — but has no regrets: “I had to go through being a man to understand that I was a woman,” she told me. “If I’d been born male, it would have been the same: I’d have had to spend some time as a woman. That’s just how it is with me: I don’t fit into boxes.”
A ‘Black Trans Lives Matter’ march in Brooklyn, New York, this month, where speakers noted that trans women of colour are particularly vulnerable to police brutality: ‘This is true the world over’ © Angela Weiss/AFP via Getty Images
Young people like Liam and Rose are moving themselves, and the culture, into uncharted territory. They are the first generation to undergo early transition. How can there be guarantees of what will happen to them later in life, psychologically and physiologically? The science is fresh and its beneficiaries still young, the oldest of them only in their late twenties. Little wonder that there is anxiety and dissent among the professionals who treat them — as was recently exposed by reports of the number of clinicians who have left the NHS’s Tavistock gender identity service.
The field of transgender rights is similarly new, as is the reaction to it, from both feminists to the left and anti-“gender ideology” activists of the Orban and Bolsonaro stripe to the right. If, like me, you are not trans yourself, it is important to remember that there are bodies on the Pink Line, lives and livelihoods that depend on how these culture wars resolve themselves.
Aimee Stephens died before her dignity and her right to work could be restored by a judgment that was delivered, coincidentally, the day after a huge Black Trans Lives Matter protest in Brooklyn. At the protest, speakers noted that many trans or gender-nonconforming people have been killed in the US this year alone, and that trans women of colour are particularly vulnerable to police brutality. This is true the world over.
Will the Gorsuch decision protect those coming after Stephens? This will depend not only on the law but on politics and attitudes, and whether politicians such as Trump continue to use them to fight their culture wars.
‘The Pink Line: The World’s Queer Frontiers’, is published in the UK on July 3 and the US on July28. Copyright © Mark Gevisser 2020. All rights reserved
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