Trans Justice Is the Elephant In The Room

A federal judge in Florida reminds us that defending transgender people is the next stage of our civil rights movement

I won’t be at today’s Pride parade in New York (although if there is ever a Substack float, count me in), but I hope everybody there has fun. And I hope that if you know someone who needs to read this post, you will:

Federal courts seem to agree that civil rights are civil rights. Photo credit: Elvert Barnes/Wikimedia Commons

We are at the first anniversary of the Dobbs decision, which vitiated the Constitutional right to abortion affirmed in Roe v. Wade (1973), and we have learned three things. The first is that the fake science and disinformation that the anti-abortion movement is based on is fully transferrable to LGBT+ people, which should link queer and feminist politics in everyone's minds. Misogyny, anti-gay, and anti-trans movements are essentially the same politics presented in different packages. 

The second thing the past twelve months have taught us is that the lies that support these current policies derive, historically, from lies told about and strategies to subordinate African American people. The fact-free universe of systemic racism provided the legal and social justification for slavery, Jim Crow, as well as violence against Indigenous people and all people of color in the United States. Thus queer and feminist politics must be intertwined with the struggle against white supremacy. 

The third thing we have learned since the Dobbs decision is that our judicial system can choose to uphold these lies—and by doing so, purposely support social inequality—or not. But every time our courts decide to uphold facts over fiction, democracy expands.

This past month offers an excellent example of Thing Three. Conservative anti-trans laws have caused much pain in the past year, which will continue for some time. But now that the courts have a chance to scrutinize measures intended to whip up a panic about child safety, things are going less well for the extremists who are trying to convert these laws—as well as measures that limit or eliminate abortion and the teaching of race—into permanent Republican dominance. Last week, two federal court decisions in Arkansas and Florida ruled three of these ugly, anti-trans statutes to be unconstitutional.

To focus on one set of decisions, last Wednesday, U.S. District Judge Robert Hinkle determined that a Florida state law discriminates by sex and is unconstitutional. The statute, which banned Medicaid payments for transgender healthcare, violates the Equal Protection clause of the 14th Amendment, federal Medicaid laws, and the Affordable Care Act's prohibition on sex discrimination. Previously, on June 6, Hinkle partially blocked the state's ban on gender-affirming care for Floridians 18 and younger, allowing the three families who sued to continue care until the issue was fully decided in the courts. As part of that ruling, Hinkle also chided the state with "animus," citing a state legislator who had publicly referred to these transgender children as demons.

Hinkle's decision was not just in the interests of civil rights and the law but in the interests of science and truth. You can read the entire decision, but I want to highlight some aspects of this case that do this work, separating fact from the fiction that Republican politicians spin and encouraging people who know little about transgender care for minors to believe that it is the equivalent of medically-sanctioned child abuse.

Most prominent among these is the lie that all people who come out as transgender are on a fast track to surgeries that, to anti-trans partisans, are mutilating and allow young people to bargain away their capacity for human reproduction. Judge Hinkle begins his remarks by noting that his decision does not apply to surgery since none of the four plaintiffs—two adults and two minors—were seeking surgery, only continuing medical care that supports their gender transition. 

But highlighting the absence of surgery from what was at stake in the case matters. A 2011 survey showed that only 61% of trans people medically transitioned, and only 33% had undergone surgical interventions. While 14% of trans women said, they never wished to undergo surgery on their genital-urinary systems, a whopping 72% of transmen, of whom between 8-25% of whom elect surgery for a more masculine chest (according to a 2019 NIH study), also rejected those surgeries.

Perhaps the second most common misrepresentations are that children younger than 8 receive any intervention beyond social transition and therapy, children younger than 14 receive medical care beyond puberty blockers, and minors 18 and younger have surgery except in very few cases. These are the standards of care for trans youth. Thus, fewer than 500 of these surgeries occur in the United States every year: fewer than a dozen top or bottom surgeries are done on minors between the ages of 14 and 18. 

Yet to listen to Florida Governor Ron DeSantis, you would think that American children are on a conveyer belt from ideological indoctrination at drag queen story hour (nb.: drag queens are not transwomen) to having body parts removed in gender transition mills. In his May 2023 signing statement for the law that outlawed transgender care for minors, DeSantis declared that it would "permanently outlaw the mutilation of minors." More recently, he opined sarcastically in a press conference: "They talk about these very young kids getting gender-affirming care," putting up air quotes around the phrase. He continued,

What they don’t tell you what that is is that they are giving very young girls double mastectomies, they want to castrate these young boys — that’s wrong.

You don’t disfigure 10-, 12-, 13-year-old kids based on gender dysphoria. Eighty percent of it resolves anyways by the time they get older. So why would you be doing this? I think these doctors need to get sued for what’s happening, I’m sorry.

As importantly, for an extremist political movement obsessed with reproducing the "white race," DeSantis links transgender care to sterilization and failed motherhood. A few months after the above statement, he referred to puberty blockers (which are fully reversible and do not have an impact on future fertility) as "chemical castration." It is worth saying that they actually do chemically castrate people in Florida: it has been on the books as a legal punishment for sex offenders in that state since 1997. 

What DeSantis ignores, of course, is that Florida has, for decades, been the capital of gender-affirming surgeries for cisgender people for decades. At 3.9 for every 100,000 citizens, Miami is the world's plastic surgery capital. According to the American Society of Plastic Surgeons, teens aged 13-19 account for about 4% of all cosmetic surgeries. The most common? Nose and ear reshaping, male breast reduction, female breast enhancement, and liposuction. None of these procedures are illegal for minor children. In 2013, people younger than 19 accounted for over 200,000 surgeries, many of which were, as they said, so that they would "fit in." By 2020, an annual 15.6 million cosmetic procedures were done in the United States. If the 4% number holds, that would be 624,000 minors nationwide: Florida's share is 12,480 kids under 18.

But of course, to Governor DeSantis and his merry band of transphobes, wanting to be conventionally feminine or masculine is not just understandable; it is an extension of authentic gender identity. It's also, obviously, big business in Florida.

Trans people, on the other hand, are brainwashed, delusional, or downright fraudulent. In March 2022, DeSantis charged that the NCAA, by permitting transgender swimmer Lia Thomas to compete—under its own rules—was "perpetuating a fraud." Say what you will about this situation, but one thing Lia Thomas is not is a fraudulent woman.

Judge Hinkle addressed such baseless claims as well. It cuts to the heart of fraud that DeSantis and his allies perpetuate: that talk about gender is mere ideology and that transgender people can be eliminated from our society or at least separated enough to make them invisible to cisgender people. As it turns out, Florida's lawyers and "experts" could not make arguments about gender without conceding that there is something called gender.

"The elephant in the room should be noted at the outset," Hinkle noted,

Gender identity is real. The record makes this clear. The defendants, speaking through their attorney, have admitted it. At least one defense expert also has admitted it. That expert is Dr. Stephen B. Levine, the only defense expert who has actually treated a significant number of transgender patients. He addressed the issues conscientiously, on the merits, rather than as a biased advocate.

Despite the defense admissions, there are those who believe that cisgender individuals properly adhere to their natal sex and that transgender individuals have inappropriately chosen a contrary gender identity, male or female, just as one might choose whether to read Shakespeare or Grisham. Many people with this view tend to disapprove all things transgender and so oppose medical care that supports a person’s transgender existence. In this litigation, the defendants have explicitly acknowledged that this view is wrong and that pushing individuals away from their transgender identity is not a legitimate state interest.

Still, an unspoken suggestion running just below the surface in some of the proceedings that led to adoption of the rule and statute at issue—and just below thesurface in the testimony of some of the defense experts and AHCA consultants—is that transgender identity is not real, that it is made up.

“Any proponent of the challenged rule and statute should put up or shut up,” Judge Hinkle emphasized. “Do you acknowledge that there are individuals with actual gender identities opposite their natal sex, or do you not? Dog whistles ought not be tolerated.”

As Hinkle also inferred, one can hire a physician somewhere to say anything you want them to, something malpractice litigators know well. Still, it doesn’t mean they are telling the truth. An expert who testified on behalf of the state of Florida, Dr. Paul Hruz, had, Hinkle notes, previously “joined an amicus brief in another proceeding asserting transgender individuals have only a `false belief’ in their gender identity—that they are maintaining a `charade’ or `delusion.’“ A second “expert,” retired plastic surgeon Patrick Lappert, who never practiced gender-affirming care, told a radio host that such treatments were a “lie,” a “moral violation,” a “huge evil,” and “diabolical.” Other Florida state employees publicly perpetuated the view that gender-affirming care only existed so that pharmaceutical companies and cynical doctors could profit from vulnerable people. 

This case, undoubtedly bundled with the Arkansas case and other rulings in the coming months, will surely go to the Supreme Court. Should the Court grant certiorari (which, given its recent allergy to controversy, it may not), they will have a powerful platform during the 2024 campaign season, as Republicans try to obscure their unpopular reproductive rights policies that their leading candidate is under indictment.

Our job? To keep broadening the conversation, not just to reiterate facts but to link those strategies back to the historical racism and misogyny of the GOP.

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What I’m doing when you aren’t looking:

• Celebrating my own transition—to becoming a full-time writer! William Pannapacker and I had a conversation with the Chronicle of Higher Education about our different decisions to leave our positions as tenured university professors: “Should You Retire Early? A Q&A with two academics, in English and history, on the intricacies of the decision to end a faculty career.” (June 20, 2023)

Short takes:

• The strange political formation/third party that calls itself No Labels might want to rebrand as “None of Your Business” or “Don’t Worry Your Pretty Head.” According to Heidi Przybyla and Shia Kapos at Politico, the group’s leading donor “is a nonprofit which, unlike political parties, does not have to reveal the names of its funders.” When the reporters asked Nancy Jacobson, the nonp[rofit’s CEO, who the donors were, she described them as a “mixed” group of “people that want to help our country.” That clarifies everything, doesn’t it? Democrats and Never-Trumpers are concerned since the only purpose of a third-party candidacy of this kind would be to draw moderate and independent voters who would never vote for Trump away from the Biden-Harris ticket. These critics argue that “No Labels is essentially running a presidential campaign without the requirements that apply to formal political parties; namely disclosures.” Expect more news on this. (June 23, 2023)

• We already know that Republicans have a lot of issues with factual information, but this one takes the cake. Republican representatives Elise Stefanik (NY-21) and Marjorie Taylor Greene (GA-014) have sponsored a resolution to “expunge” Donald Trump’s two impeachments, rewriting the historical record “as if such Articles had never passed.” The move is backed by Speaker Kevin McCarthy (CA-20.) However, as Mychael Schnell and Mike Lillis note at The Hill, that’s impossible in a world where actual people have memories. “The practical implications of the resolutions are dubious,” Schnell and Lillis write, “because they can do nothing to revisit the impeachment votes or eradicate the public’s memory of them. (June 23, 2023)

• Did you hear MTG call her former friend and GOP ally Lauren Boebert (CO-3) “a little bitch” on the House floor? Here’s a cute song someone wrote about it. Boebert, it seems, copied and took credit for Greene’s homework. The articles of impeachment against President Joe Biden that Boebert wanted to fast-track last week were an exact duplicate of the articles of impeachment that Greene had asked Boebert to co-sponsor when the Georgie Congresswoman introduced them back in May. It seems that Boebert may also be going rogue. The new bill “surprised and frustrated many of her colleagues,” according to Tori Otten at The New Republic, because they want huge public hearings on Biden where they can bloviate lies, not an impeachment that goes to the Senate quickly only to be filed in a round can. (June 21, 2023)