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.

The recent spate of legislative proposals in Republican states are rooted in denial of these principles. Their animating idea, genuinely believed in or professed out of political opportunism, is that the law should define people’s gender according to their biological sex “without regard to an individual’s psychological, chosen or subjective experience of gender,” as a recent South Carolina Republican resolution reads. According to an article in the New York Times, in addition to bathroom and sports bills, a new wave of over 150 anti-trans bills proposed in at least 25 states include bans on transition care into young adulthood, on drag shows, and on teachers using names or pronouns not matching students’ biological sex. As with other issues, like climate change, structural racism, and who won the 2020 presidential election, some Republican politicians hope to parlay evidence-free bias into a winning political strategy.

Nonetheless, the affirmation of the two principles at the top of this post don't resolve all transgender issues. Inasmuch as the transgender agenda asks not merely for freedom of expression, but for societal accommodation and medical intervention, it raises a number of issues that can’t be dismissed as simply transphobic. For one, how do we know when medical intervention is appropriate, and what kind of intervention? Our answer to these questions may depend on how we interpret transgender demographic trends. According to one study of the U.S. population, 1.4 percent of 13- to 17-year-olds and 1.3 percent of 18- to 24-year-olds identify as transgender, compared with about 0.5 percent of adults. To what extent is this difference accounted for by the fact that trans-inclined adults have been inhibited by social pressure from living as their authentic selves, and to what extent is the difference an artifact of social influences to which people under 24 are exposed? If more the later, then perhaps stricter protocols for medical intervention, particularly for minors, is called for.

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.

There is a tendency among some militant advocates to dismiss any questions and concerns about the accommodation of transgender people as simply transphobic. Transgender advocates may succeed in making certain spaces like universities safe for trans folk, and may intimidate some who express heretical opinions. But as the above survey indicates, they may not be able to translate their dominance in some corners of society into actual political power. And not only is the transgender project placed in jeopardy, but some Republicans are using its unpopularity to thwart a progressive agenda that would address climate change, racial justice, and economic inequality. Persuasion on transgender issues will not be possible until advocates realize that at least some questions about the accommodation of transgender people are legitimate and should be addressed, even if they passionately believe that they have the right answers to those questions.

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.