Thoughts on Transgender Issues
The treatment of transgender people is one of the most active fronts in our never-ending culture wars. Any nuance gets lost on both sides of the debate. At the risk of being caught in the cross-fire, this post attempts to formulate a sensible framework for understanding these issues.
My starting point is the affirmation of two principles. First, people should be able to express their gender identity as they wish, not in conformity with other people's ideas. That principle is rooted in the fundamental right to express oneself linked to the First Amendment protection of freedom of speech.
Second, gender dysphoria, the strong sense of belonging to a gender other than the biological gender into which one was born, is real. The causes of gender dysphoria are not well understood, but seems to have a physiological basis, at least in some cases. From this emerges the principle that people experiencing gender dysphoria should be given “reasonable accommodation,” a term that comes from the law of disability discrimination. Discrimination on the basis of disability cannot be addressed by treating disabled people the same as the so-called able-bodied. Schools, workplaces, and other public spaces must reasonably adapt to their needs in order to give them an opportunity to participate in society and reach their full potential. So it is with transgender people: we are obliged to reasonably accommodate them so that they can live in alignment with their gender identity and still be fully functioning members of society, countering a tendency to marginalize them due to their unusual physical circumstances.
Then there are questions around which accommodations are “reasonable.” For example, while the issue of transgender competition in women’s sports has been amplified by right-wing hysteria, there are plausible arguments for placing some constraints on that competition. The ardently feminist Women’s Sports Policy Working Group, for example, although in favor of some transgender women’s participation in recreational sports, have raised concerns about the advantages that transgender women’s athletes who have gone through puberty as males may retain, and have proposed some limitations on their participation in girls’ and women’s sports at the competitive level. You may disagree with their position, but it isn’t reasonable to simply dismiss it as the product of bigotry.
Questions about reasonable accommodation extend into areas of language. Using a person’s preferred gender pronoun seems to me unproblematic. But do we need to socially ostracize anyone who doesn’t use “pregnant people” and “people who menstruate” to refer to biological women? Do we all need to fall in line with the decision in some quarters of academia and the media to use “Latinx,” a term favored by only 4 percent of the people in the country who identify as Hispanic?
The Republican wager that anti-trans legislation will have political benefits may pay off, at least in the short term. According to a 2022 Pew Research Poll, although 64% of respondents were opposed to discriminating against trans people in employment and housing compared to 10% in favor, they believed, 58% to 17%, that trans athletes should compete on teams that match their sex at birth, 46% to 31% that health care professionals should be prohibited from assisting people under 18 to transition, 41% to 31% that trans people should use the bathroom of the sex assigned at birth, and were evenly split on whether parents who help their children transition should be investigated for child abuse. And this gets to a reality not often acknowledged in liberal circles – that to many people, transgender is a strange phenomenon because it is far outside their personal experience. Prejudice stands ready to supply the answers where experience can’t.
Robert Katz served as a staff attorney and supervising attorney at the California Supreme Court from 1993-2018. Before that he was in private practice representing public agencies, and worked as a newspaper reporter covering local government in Santa Cruz County.