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    Ann Rostow: The Shadow Falls on Trans Rights

    By Ann Rostow–

    The Shadow Falls on Trans Rights

    I’ve been reading a lot about two seemingly different stories; the first a transgender sports case that appeared on the Supreme Court’s so-called shadow docket on March 16, and the second, a big to-do at Stanford Law School over a March 9 lecture by a conservative anti-transgender appellate court judge, Kyle Duncan. (Just now, I read an interesting piece that draws the two together by Ian Millhiser on Vox, which I recommend.)

    But first, the High Court’s shadow docket refers to emergency requests for stays and injunctions and so forth that oblige the Court to respond quickly, without briefs, research, arguments, or much of any deliberation. These cases often have not been extensively litigated, so the Court also lacks a detailed history of the issues. And finally, the Court usually presents a ruling in a matter of days without any explanation beyond a quick boilerplate paragraph.   

    Just what we need in a case that pits the state of West Virginia’s ban on trans women and girls in sports against a high school girl who wanted to run track, right? The girl, Becky Pepper-Jackson, filed suit when she was an 11-year-old sixth grader, and in 2021, a lower court put a hold on the law’s enforcement against her as an individual. Fast forward to January of this year, and the same court removed that hold, ruling on the merits that West Virginia was allowed to treat cisgender girls differently from transgender girls in the context of sports without violating transgender civil rights. Represented by Lambda and the ACLU, Pepper-Jackson asked the U.S. Court of Appeals for the Fourth Circuit to reinstate the hold on the law, which they did without comment in February.

    Now, the state and its conservative lawyers at the Alliance Defending Freedom have asked the High Court to remove the Fourth Circuit’s injunction and let the law be enforced while the underlying case continues through the courts. To do so, the Court must find that West Virginia is likely to prevail on the merits, and that the state will be harmed if its legislative efforts are blocked. Interestingly, New York Law professor Art Leonard notes that this task would be much more difficult had the Fourth Circuit explained its reasons for reversing the lower court judge.

    Even though this is a preliminary decision, you can see that a majority vote in favor of West Virginia will strongly suggest that transgender girls do not have a pure civil rights argument in favor of playing on sports teams. 

    In fact, we are back to the dilemma we’ve discussed so often in the past. How do we combat all-or-nothing thinking with appeals to complexity and taking things on a case-by-case basis? Clearly, a cisgender male high school athlete cannot announce that he “feels female” and join the girls’ team. Yet this is the stereotypical image that the far right presents as a real threat. 

    As a sixth grader, Pepper-Jackson had already taken puberty blockers for a year or so and enjoyed running with her supportive friends. Should an 11-year-old who was well-liked by her teammates be allowed to race with the other girls? All signs point to yes, the Magic Eight Ball says. No, I can’t tell you if her track abilities were unfairly affected by her birth sex then or down the road, but I can tell you that she deserved a chance to present her position to the school.

    That’s all Lambda and the ACLU were asking for, but West Virginia has argued that allowing trans-girls to play sports under certain guidelines on a case-by-case basis would impose an onerous bureaucratic headache on schools and colleges, as if the public schools were overrun with ambitious trans-athletes. Try a handful every year, who should not be regulated out of participation by a rigid statute. 

    Note that this exact issue is the subject of a full court review before the U.S. Court of Appeals for the Second Circuit in the case of Connecticut’s statewide policy in favor of transgender sportswomen. A three-judge panel upheld the Nutmeg State earlier this year, but the full court voted to re-hear the matter.

    When They Go Low, We Go Loud

    Moving right along, Judge Kyle Duncan found himself in enemy territory when he accepted an invitation from the Federalist Society to speak at Stanford Law the other day. And it’s not surprising. The Fifth Circuit Trump appointee is a belligerent jerk, with a background of hostility towards marriage equality and a history of anti-trans rhetoric and anti-GLBT litigation. 

    No one expected Duncan to be greeted with warmth and enthusiasm by a bunch of students at an elite law school, but his speech was completely overwhelmed by nonstop shouts and protests, to the extent that he was effectively silenced. The disruption was later calmed by the intervention of the Dean, and Duncan answered a few questions and had the opportunity to yell obnoxious things back at the students. It was, by all accounts, a mess.

    Afterwards came a debate over whether the students were simply engaging in free speech, or whether they were blocking the free speech of Duncan, or both. It seems to me that a protest that completely drowns out speech is less a protest and more a matter of mass virtue signaling on the part of the students. At the same time, there’s no reason that Duncan should expect respectful attention from an audience, given that he has taken a strong stand in favor of discrimination and disdain for minorities. 

    I’m not sure what I would have written if I could have scripted the Stanford Law students. Not showing up just abandons the arena. But I think I would have interjected a few boos and mutterings, registered zero applause or encouragement, generated a low hum of disapproval, and peppered the man with sharp questions and follow ups. At the end, I would have allowed a roar of disapprobation to thunder through the hall. No one could have argued that the audience failed to allow the man his speech, and he would have been hard pressed to object to such a reaction.

    Instead, the man got a formal apology from Stanford and is dining out on the scene, which bolsters the conservative claims that “woke” college culture has destroyed the possibility of an education untainted by progressive politics. We’re the bad guys in this scenario, and it’s not clear how we rise to our defense given the mob-like mentality we presented. We fell into a trap, and it does not help our efforts to protect and defend GLBT civil rights, particularly trans rights, when we have to climb back to ground level while we’re already fighting uphill.

    Ex Marks the Spot

    Speaking of fighting uphill, we are now faced with a number of people who regret their transitions and are happy to tell Fox News all about their bad experiences. Much as the ex-gays once paraded through conservative media, these ex-trans men and women bring along the false implication that theirs is a common dilemma. It’s not, but that doesn’t mean a wrongly conducted transition is something to be dismissed. It’s a tragic error, regardless of its rarity, but it’s one that injects our opponents with an adrenaline shot of “we told you so” euphoria. 

    After writing about the GLBT community for a quarter century, I’ve seen many instances where the GLBT press takes a one-off situation and exaggerates the incident into a blanket condemnation of society in general. A single hate crime means we’re all in the path of an anti-GLBT crime wave. Some nutcase lawmaker wants to revive a ban on same-sex unions and we’re suddenly asked to contribute money to “save marriage equality.” That sort of thing irritates me.

    And I feel the same way about the sad tale of Layla Jane, an 18-year-old girl who transitioned to boyhood and has now returned to her birth gender, after losing both her breasts to a mastectomy at age 13 on the recommendation of some doctors. Jane’s lawyers have sent a letter announcing their intent to sue to Kaiser Permanente, and have previously sued Kaiser on behalf of another de-transitioned teenaged girl who went through surgery and hormones at 15. 

    The whole point of puberty blockers is to buy time in order for kids with dysphoria to explore their gender and sexuality before the complication that massive natural hormones represent. Even these have side effects, and should be reserved for kids who really need them as opposed to those where simple curiosity reigns. Clearly, these two girls were strongly urging their doctors and parents to allow them to transition at a young age, but while blockers may well have been called for, they were arguably too young for transitioning hormones, let alone surgery. That said, they are anomalous cases, not arguments for wholesale laws against lifesaving transition health care.

    Surgery can be a life saver, and I gather the emotional cost of postponing surgery can be agonizing. But it still must be postponed for some who qualify in order to make sense as public policy. And it should be up to the transgender community to come up with solutions that avoid even the rare cases these teenagers represent while preserving health care for everyone else. 

    Once again, I find myself arguing for compromise and complexity in a world where our adversaries produce various combinations of horror stories and absurdities. And in a world, I might add, where even my cisgender allies sometimes react with gut level animosity for anything that doesn’t fit perfectly into our roles as gay champions of trans rights. We can be champions without advocating for surgery at age 13. And the vast majority of transgender activists agree.

    Bad Randy

    Man, I was going on and on in that last section until I finally had to break my rule and delete several lovely paragraphs. I’m sad now. I also deleted a note to myself to cover the High Court’s review of a case involving a dog toy designed like a Jack Daniels bottle, but called “Bad Spaniel.” The toy, which advertises that it’s 43 percent “poo,” is accused of undermining the Jack Daniels brand. C’mon guys! The justices heard arguments March 22, but I will say no more on the subject.

    I must also call your attention to the Lieutenant Governor of Tennessee, Randy McNally, who survived a vote of no confidence from the Republicans in the Tennessee Senate on Tuesday by a vote of 19–7. Why the vote? It’s because McNally went online to like the Instagram posts of a half-naked 20-year-old gay guy, telling him, for example: “You can turn a rainy day into rainbows and sunshine,” on a shirtless shot from behind in tight underwear. On another post, also showing the man shirtless and in makeup, McNally remarked: “Way to go Finn!!! You light up the world!!”

    Explaining himself to the press, the 79-year-old said he likes to use social media and has lots of gay friends. “I don’t feel any animosity towards gay people,” he told the Tennessean, noting that he has opposed some anti-gay proposals in the past. Maybe so, but the man is second in command in the state with the most prolific anti-GLBT legislature in the country, which just lately banned trans health care and drag shows. So, hmmm. 

    And speaking of drag shows, a bunch of white supremacist types showed up to a drag queen story event at a park outside of Akron the other day, chanting “Sieg Heil!” and yelling racist slurs at families trying to enjoy the show. According to The Advocate, one guy was seen in a video pointing a gun at the audience and trying to fire it without success. 

    More recently, a group of anti-trans protesters in Melbourne lifted their arms in a Nazi salute on the steps of the Parliament building, prompting the state of Victoria to recommend banning the salute by law. Over my entire adult life, I have applauded the ACLU’s defense of a public Nazi event in Skokie, Illinois, as a prime example of our courageous American respect for Free Speech. But lately, I find my pleasure in the 1978 incident is eroding.

    Published on March 23, 2023