Worriedmom is the mother of four (allegedly) adult children. She lives in the Northeastern part of the United States. Worriedmom practiced law for many years and now works in the non-profit ara. She is available to interact in the comments section of this post.
While writing a previous 4thWaveNow article about my experience as a PFLAG leader, I thought back on my longstanding personal connections with gay, lesbian and transgender people. I first became interested in this group of humans while in college in the late 1970s, on account of my then-best friend, a gay man. I remember demonstrating against Anita Bryant’s mean-spirited Florida anti-gay activism, and being filmed by the local police department, which regarded gay people and their allies as dangerous subversives. I recall that same police department barging into the local gay disco, lining up the women and men against separate walls, demanding identification and threatening to haul folks to jail and put their names in the paper. My friend told me disturbing, haunting stories about the naked aggression and harsh daily bullying he faced in high school because he was a “feminine” gay man.
I knew these experiences were but the tiniest slice of the everyday discrimination, violence and prejudice faced by gay and lesbian people in those days. For myself, even those few encounters with the unfairness and unkindness faced by gays and lesbians led me, first, to provide free estate planning for men with HIV, shortly after I got my law license; and, later, to advocate for civil union and then gay marriage in my home state. Along the way, I also became a PFLAG chapter leader and spent countless hours devoted to the cause of equal rights for sexual and gender minorities.
As I thought about my own history of advocacy, one thing that struck me was how very long a road it had been, one that has lasted my entire adult life. And what next occurred to me was that, by contrast, transgender rights, in both law and fact, have had an extraordinarily short history. Compared to the length of time it took for gay and lesbian people, and more specifically same-sex marriage, to become mainstream, transgender rights have taken center stage in a virtual blink of the eye. In both these cases, people have been asked to accept a new, expanded or different interpretation or meaning of something they’ve taken for granted: in the gay and lesbian rights area, marriage; and in the transgender rights area, gender or sexual identity.
This article briefly explores the evolution of the law and public policy in the United States as it relates to marriage, and the sexes. (For space reasons, I will have to skim over and condense an incredibly rich, interesting and complex history. There is a great deal more to say and learn about every subject covered.)
Gay marriage: An idea long in coming
Although gay and lesbian subcultures certainly existed prior to the 1950s, particularly in larger cities and in areas impacted by the World Wars, the first organized groups in support of gay rights did not emerge until the early 1950s. The Mattachine Society, for men, was founded in 1950, and the Daughters of Bilitis, for women, was founded in 1953. The first public protests in favor of gay and lesbian rights occurred in 1963 at the White House, and in 1966 in New York City (a “sip-in” against anti-gay discrimination).
Although the 1960s saw increasing efforts toward social visibility and against discrimination, the Stonewall Riots, in 1969, are largely regarded as the catalyst for the modern-day gay civil rights movement. The energy and intensity produced from Stonewall led to the creation of the first “out” gay rights groups, and within two years, virtually every large city in the U.S. had its own gay and lesbian political action group.
Activism around gay and lesbian rights grew during the 1970s alongside other movements of personal liberation, such as the women’s movement, Black Power, Chicano Pride and others – although a serious backlash ensued as some religious conservatives began to mobilize in opposition. The AIDS crisis of the 1980s, and the activism that it engendered, ensured the prominence of gay people in the public mind.
The first hint in the United States that same-sex marriage might someday become a reality was in 1993, when Hawaii’s Supreme Court ruled that denying marriage to same-sex couples violated the Equal Protection Clause of that state’s constitution. This ruling did not legalize gay marriage in Hawaii but did kick off an intensive round of anti-gay marriage lobbying and advocacy, which culminated in the 1996 federal Defense of Marriage Act (“DOMA”). While it did not prohibit states from recognizing gay marriage, DOMA provided that for federal purposes marriage was to be defined as the union between one man and one woman only. Under DOMA, states were permitted to refuse to recognize gay marriages performed in other states, which temporarily settled the issue in favor of the anti-gay marriage forces. In 2004, President George W. Bush urged passage of a Federal Marriage Amendment to the United States Constitution, which would have further codified the definition of marriage as being between one man and one woman only. The Federal Marriage Amendment was never adopted, although it became the subject of a raging debate.
2004 also saw tremendous activism around gay marriage in general, with anti-gay marriage amendments and statutes up for referendum in numerous state contests. It later developed that the Republican Party had adopted the strategy of introducing gay marriage as a political “wedge” issue into as many state elections as possible, with the hope of bringing more conservative, motivated voters to the polls.
Although chastened by the crushing defeat of 2004, in which anti-gay-marriage initiatives won in every single state in which they were introduced, gay and lesbian activists persisted. One bright spot was the Goodridge case in Massachusetts (2004), which legalized gay marriage for that state. Connecticut became only the second state to recognize gay marriage, in 2008. A dark spot was California’s infamous “Proposition 8,” also in 2008, when voters made same-sex marriage illegal in that state. A “middle ground” proposal to allow same-sex couples to enter into “civil unions” or “domestic partnerships” was often explored and adopted as an intermediate legal step. Many states and groups saw tremendous debate and dispute over whether civil unions were an appropriate substitute for full civil marriage, should be sanctioned by the State, or whether the concept was the proverbial “camel’s nose under the tent.”
In 2009, a team of “super lawyers” attacked Prop. 8 in California on constitutional grounds, with the goal of creating a test case that could be ruled upon by the U.S. Supreme Court to establish gay marriage as the law of the land. However, the Supreme Court declined to hear the California case in October of 2014, and as of that date just 19 states and the District of Columbia permitted same-sex marriage. Thirty-one states had laws or statutes explicitly prohibiting it. The period between October 2014 and June 2015 was one of a very rapidly evolving legal landscape, as state laws and constitutional amendments were successively ruled unconstitutional. Finally, as of June 26, 2015, the date of the U.S. Supreme Court’s Obergefell decision legalizing gay marriage in all 50 states, gay marriage had been legalized in 37 states and the District of Columbia. By then, every state in the union had had court cases bearing on the issue.
Although there was some resistance in a few quarters to the Supreme Court’s decision, most notably with the Kim Davis controversy in Kentucky, by and large negative public reaction to Obergefell was muted. Whether or not people agreed that the Supreme Court had the right to alter the concept of marriage, and whether or not they agreed that the court’s application of the U.S. Constitution to the issue of same-sex marriage was correct, by the time the high court ruled in June of 2015, all sides to the conversation had had their say (and then some). In fact, gay marriage attracted so much attention, analysis, fact-finding and commentary, that eventually people on all sides of the issue actually became weary of the discussion.
The key point is that, in ruling in Obergefell, the Supreme Court did, in fact, re-define marriage as that term had previously been used and understood in American society. (To be clear, other societies in other eras have had other definitions of marriage.) Many people objected to such a re-definition because they did not agree that it was appropriate, moral, legally justified, socially desirable or for other reasons. Those arguments were heard and evaluated on their merits, and every party concerned had the full opportunity to make its case. We had a robust national conversation about the definition of marriage which lasted, even dating strictly from the Hawaii decision, for some 22 years.
Re-defining “man” and “woman”: An idea not very long in coming
Although older readers may remember the well-publicized early cases of Renee Richards (in 1976) and of Christine Jorgensen (even further back, in 1952), until very recently, transgender people were primarily regarded by most Americans as exceptionally rare oddities. Early political efforts around transgender rights and people only began to gather momentum in the late 1990s, with the first efforts to add “gender identity” to anti-discrimination laws in a few jurisdictions and the establishment of the “Transgender Day of Remembrance” in 1999 as the signal holiday of the movement. It was not until 2014, when Time magazine declared that the United States had reached the “transgender tipping point,” that many Americans began to realize the significance of the transgender movement. And most observers would agree that Bruce Jenner’s transformation into Caitlyn Jenner, in 2015, was probably the event that finally brought transgender people and their issues into wide public consciousness, if not acclaim.
Initially, the focus of the transgender movement appeared straightforward. It seemed logical to include the “T” as part of the “LGB,” in that transgender people were also often viewed as sexual minorities. Given that gay and lesbian people often were, and are, punished and discriminated against for being “gender non-conforming,” it appeared that including “gender expression” or “gender identity” as qualities to be protected under civil rights statutes was natural and appropriate. For instance, in 2009, President Obama signed a law that added anti-transgender bias to the federal hate crimes law; President Obama also banned discrimination on the basis of gender identity among federal contractors via executive order in 2014; and in June of 2016, transgender people became eligible to serve in the United States military. Efforts to enact a federal employment non-discrimination law covering transgender people (and gay and lesbian people, for that matter) have been unsuccessful to date.
In February of 2016 (just one short year before this writing, although it seems much longer), the North Carolina city of Charlotte passed an ordinance establishing certain civil rights protections for gay, lesbian and transgender people, including – most controversially – the requirement that transgender people be permitted to use the bathroom facility of the gender with which they identified. In March of 2016, in a special session, the State of North Carolina passed a bill that voided the Charlotte ordinance and affirmatively required transgender people to use restrooms and locker rooms corresponding to their birth sex. A firestorm of controversy, and needless to say litigation, followed. Then, on May 13, 2016, the Civil Rights Division of the U.S. Department of Justice sent the now-(in)famous “Dear Colleague” letter to public school districts, informing them that under Title IX of the Civil Rights Act (which prohibits sex discrimination in education programs that receive federal financial assistance), as a condition of receiving federal funds, the districts would be required to make “sexed” school facilities, such as bathrooms and locker rooms, available to students based on the students’ “gender identity.” Schools, including colleges and universities receiving federal funding, would no longer be permitted to require that transgender students use separate facilities. According to the Dear Colleague letter, “[g]ender identity refers to an individual’s internal sense of gender” and “[a] person’s gender identity may be different from or the same as the person’s sex assigned at birth.” While enforcement of the Dear Colleague letter had been stayed pending judicial resolution as to whether it is a valid interpretation of Title IX, it has now been revoked altogether by President Donald Trump. Most observers agree, however, that the issue is far from settled.
As the “bathroom wars” illustrate, the current focus of the transgender rights movement appears, then, to have shifted, from the straightforward request that transgender (and “gender non-conforming”) people be protected against discrimination in areas such as employment, housing, and education, to a much broader proposition. Specifically, many transgender advocates now posit that transgender people must be accepted, recognized and treated, for every purpose, as members of the sex with which they identify. According to the Dear Colleague Letter, from henceforth, a person’s stated “gender identity” or internal sense of gender (gender previously thought of as the set of socially conditioned behaviors and personality traits commonly associated with a given sex) overrides or replaces that person’s biological or natal sex. In fact, the very notion that there is something called “biological sex” is increasingly rejected in favor of the view that “sex” is “socially constructed.” The short-hand for this view is the oft-heard claim that “trans-women are women.”
Such a claim has profound implications for humans’ understanding of one of their most fundamental sources of identity: their sex. The transgender claim that a person’s sex is not grounded in a set of objective, observable facts, and that it is bigoted and ignorant to believe that it is, represents a quantum shift in the way that most humans perceive reality and each other.
We cannot discuss the intellectual underpinnings of the modern transgender rights movement without a short detour into the critical theory known as post-modernism. Post-modernism was originally formulated in the 1960’s in opposition to the Enlightenment idea that: “[t]here is an objective natural reality, a reality whose existence and properties are logically independent of human beings—of their minds, their societies, their social practices, or their investigative techniques. Postmodernists dismiss this idea as a kind of naive realism. Such reality as there is, according to postmodernists, is a conceptual construct, an artifact of scientific practice and language. This point also applies to the investigation of past events by historians and to the description of social institutions, structures, or practices by social scientists.” Post-modernism also rejects the idea that “[t]he descriptive and explanatory statements of scientists and historians can, in principle, be objectively true or false.” The postmodern denial of this viewpoint—which follows from the rejection of an objective natural reality—is sometimes expressed by saying that there is no such thing as “Truth.” The transgender claim, that there is no objective category called “sex” for human beings, is thus a very post-modern way to view the world.
While post-modernism can provide an interesting and illuminating lens through which to “de-construct” theories, beliefs, and works of art, it seems to do a much poorer job at providing “words to live by.” Human beings do need to act “as if” there is “such [a] thing as Truth,” if for no other reason that it is impossible for humans to live in community and interact with one another unless they share some consensus on what constitutes reality.
This is why, I believe, the core transgender concept, that “man” and “woman” do not exist as independent qualities, but are matters of subjective belief, is so immediately foreign, if not abhorrent, to most people. A quick review of the comments on virtually every transgender-themed story on a mainstream platform, whether that is the New York Times or CNN.com, will show that the vast majority of people reject the post-modern view of sex, and in fact feel great discomfort when faced with demands that they adopt it.
Just Passing Through 18 hours ago
From dictionary dot com: de·lu·sion, noun. An idiosyncratic belief or impression that is firmly maintained despite being contradicted by what is generally accepted as reality or rational argument, typically a symptom of mental disorder. I’m a middle age man. Say I go to the closest middle school in my area and announce that in my heart, I truly believe I’m a 12 year old girl. I want to be a cheerleader, braid other girl’s hair, watch Justin Bieber videos, giggle and talk about boys. Of course, the administration with call the police and they will haul me away to the closest mental hospital. Someone will cry out, “you’re a 61 year old man, for God’s sake!” I will say, “so is Bruce/Catlin Jenner!” If a delusion is a delusion, why is one delusion celebrated and the other condemned?
Not buying it, and he’s got a lot of company.
It hardly needs saying that when we consider any other human physical qualities, whether that person is old or young, tall or short, or light or dark-skinned, we rely on what we observe or can measure to tell us where that person “fits” into any of these groupings. Modern gender theory, however, tells us that for the specific category of sex (and only for sex, so far as I can tell), we cannot and should not base our conclusions on what we see and that sex differences have no basis in what we consider to be objective reality.
To put it mildly, this is a paradigm shift. In fact, it is a paradigm shift that has substantially broader implications than does expanding “marriage” to include same-sex couples. In the case of marriage, as the well-worn slogan had it, “if you don’t like gay marriage, don’t have one.” In other words, at the end of the day, the fact that same-sex couples could now be married had few ramifications for anyone other than the people involved – and, at any rate, all of the arguments were hashed out over decades. An ancillary point is that by the time the gay marriage decision came down, most straight people knew (and knew they knew) gay and lesbian people. They could sympathize with the desire of gay and lesbian people to be included in the definition of marriage, based on their personal familiarity with their lives and struggles. And, of course, including gay and lesbian people within marriage did nothing to detract from or change the experience of marriage for people who were not gay and lesbian.
Re-defining sex as a matter of subjective belief has implications for every human. In most of our daily lives, a person’s sex is irrelevant; it does not matter whether the people with whom we work or play are male or female. However, there are important legal categories, statutes, categories and activities as to which sexual differentiation remains relevant, and if we re-define sex generally, we are re-defining it for all of these purposes. This is where so much of the conflict emerges. If we have decided that “sex matters” for some purposes, such as privacy, safety, re-dressing historic wrongs or inequities, competition in sports, religious observance and reproduction (to name just a few), re-defining what we mean by “sex” will have a ripple effect that extends to each and every one of these areas.
The 2016 Dear Colleague letter, while superficially addressed solely to educational institutions receiving federal funds, and while superficially concerned only with Title IX, codified the post-modern view of sex difference into law and federal policy. This represented an incredibly swift, forced acceptance of an entirely new view of sexual difference for most people outside of academic or theoretical circles. There has been virtually no opportunity for the public to think carefully about the issue, to research, consider, discuss, listen, or debate. Efforts to think critically about what adopting this view implies for men and women are shut down and shamed as transphobic and bigoted. Contrast this stunningly rapid adoption of the post-modern view of sex difference, with the decades-long fight of gay and lesbian people to be provided with basic rights and the evolution of society’s understanding of gays and lesbians as it related to marriage.
A social consensus may yet emerge to the effect that sex, and perhaps other human characteristics, is “in the mind of the haver.” Society may also figure out different ways of grouping people – distinctions between the sexes becoming less important as people feel more comfortable in mixed-sex groups (a current example would be naturism), or as people become increasingly distanced from their physical bodies, whether through virtual reality or radical advances in medical technology. “Sex” may simply cease to be a relevant category. But we’re certainly not there yet. When we look at how incredibly rapidly the post-modern view of sex has been imposed on our culture, it is hardly surprising that we are in a time of serious discord and dissension about it. This is, at least in part, because re-defining human institutions from the “top down” is not a healthy thing for a society. Telling the public that it must accept and internalize the post-modern approach to sex difference, long before we have had the chance to reach consensus about it, is unfair, almost certainly doomed to failure, and will result in a host of unanticipated consequences that will extend far beyond the local bathroom.