The transgender rights movement has been on the wrong track for several years now, and the wake of physical, emotional and cultural harm it’s leaving behind is difficult to quantify.
Many are now looking to this year’s Supreme Court case, U.S. v. Skrmetti, with oral arguments being heard today, to deliver a badly needed restoration of sanity.
The Biden-Harris administration kicked off with a now-infamous executive order that laid out the new gender ideology orthodoxy, which represented an egregious expansion of the 2020 Supreme Court decision in Bostock v. Clayton County. This executive order set off a cascading effect of linguistic acrobatics that hasn’t just asked us to upend existing legal frameworks — in many cases, it has demanded it.
But before these dramatic policy changes were implemented (and perhaps providing political fuel for them), a social contagion that has been described as “rapid onset gender dysphoria” has been spreading at a breakneck pace. Instead of protecting our country’s youth as they navigate a dangerous online phenomenon, the dramatic policy changes have served as an incubator, causing the disease to metastasize.
We now find ourselves in a place where, according to a new database, nearly 14,000 minors between 2019 and 2023 have undergone so-called “gender-affirming care,” all of which is experimental and irreversible. Ultimately, the strategy of equating “gender identity” with biological sex has led to vast physical harm and it has bastardized the larger trans rights movement, landing it squarely on the fast track to failure.
Traditionally, progressive movements pursue one of two approaches: equality or equity, depending on the specific needs of the group they aim to support. Equality-focused movements push for equal treatment across the board, while equity-driven movements advocate for special accommodations to level the playing field for vulnerable groups.
A prime example of an equality-based movement is Title VI of the Civil Rights Act, which mandates that institutions receiving federal funding cannot discriminate based on race, color, or national origin. This law demands equal treatment, leaving no room for differential treatment, even when well-intentioned.
On the other hand, the Americans with Disabilities Act exemplifies an equity-driven approach. It recognizes that individuals with disabilities need specific accommodations to ensure they can participate in society on an equal footing. The ADA requires treating people with disabilities differently from those without in order to achieve fairness, which acknowledges their unique challenges.
Title IX, which protects women’s rights in educational settings, balances both equality and equity. It prohibits discrimination based on sex in academic admissions (an equality measure), acknowledging that biological differences have no bearing on intellectual capabilities. But it also allows for separate men’s and women’s sports teams (an equity measure), recognizing that biological differences can affect fairness and safety in athletic competition.
The transgender rights movement has had notable success using equality-based legal strategies. For example, the Bostock decision held that discrimination based on gender identity in employment is illegal under Title VII. This makes sense: just as religion or skin color does not affect one’s ability to perform a job, neither does gender identity.
However, the movement has also pushed for equity-driven changes that defy biological reality and conflict with the existing sex-based protections women have fought for. This is where things begin to unravel.
In U.S. v. Skrmetti, the Department of Justice is asking the Supreme Court to afford “gender identity” the same heightened review standard that “sex” currently receives, which it hopes will thereby render state laws that ban “gender-affirming” medical treatment for minors unconstitutional. But our legal system’s framework for sex-based protections is built on the recognition of biological differences between men and women.
Laws that discriminate based on sex are subjected to “intermediate scrutiny,” a judicial test that allows for sex-based distinctions when they serve an important purpose, such as preserving fairness in women’s sports by preventing men from competing on female teams. If a sex-based discriminatory law is reasonably related to achieving an important interest — such as providing opportunities for females to participate and compete fairly in athletics — the court will find that the law is constitutional.
Since “gender identity” occurs outside the confines of objective biological reality, and often renders the meaning of the words “men” and “women” interchangeable, it cannot logically be classified on par with sex. To classify it that way would eliminate all current legal distinctions based on sex, which is why the Supreme Court is highly unlikely to do what the Justice Department has asked. It is a losing proposition from a legal standpoint, precisely because it puts transgender rights directly at odds with women’s rights, making the two mutually exclusive.
The ongoing college sports saga provides a clear example of this issue. In Gaines v. NCAA, more than 12 female athletes are challenging the governing organization’s policy of allowing trans-identifying males to participate in female sports. The NCAA aims to be inclusive of transgender athletes and, therefore, does not exclude transgender women from participating in women’s athletic events.
However, in instances like sports teams or competitions, where rights to spaces or finite opportunities are concerned, any preference in favor of one group inherently means limiting the rights and opportunities available to members of other groups. It’s a zero-sum game. The result is that female athletes are inherently disadvantaged, and the equity measure of sex-segregated teams under Title IX is obsolete.
It’s time for the transgender rights movement to pivot. Advocates would do right by their constituents by accepting that “gender identity” is a classification separate and apart from binary sex, with necessarily inferior legal protections. Embracing this reality is likely the only hope this movement has for garnering whatever equality-based accommodations that can feasibly be offered under the law.
If the court in Skrmetti chooses to directly address this question, it could all be a foregone conclusion come June.
Leigh Ann O’Neill is a staff attorney at the Foundation Against Intolerance and Racism.
