The US Supreme Court is hearing the case of a transwoman sacked by a social conservative employer. Aimee (formerly Anthony) Stephens was fired as funeral director by Harris Funeral Homes in 2013 after disclosing intentions to present at work as a woman. Stephens is represented by David Cole, national legal director of the ACLU, while the funeral home is represented by the conservative Alliance Defending Freedom (ADF). Trump, pandering to the bigots in his electoral base, supports the funeral home. Legal briefs can be viewed here.
The court is also hearing two cases involving gay men. Gerald Lynn Bostock is a former child welfare services coordinator, sacked after he joined a gay sports team. Donald Zarda, now deceased, was a New York skydiving instructor, fired after telling a client that he was same-sex attracted. His estate is pursuing his case. Hearings began on 8 October, but decisions are not expected until mid-2020.
Alongside the legal arguments a range of political issues are in play.
Sex and sex stereotypes
Trans people adopt some of the stereotypes of the opposite sex. But they defy those of their birth sex, which inflames social conservatives. In this instance the funeral home owner demanded compliance with a dress code “applicable to Stephens’ biological sex”. David Cole quotes the funeral home owner, Thomas Rost, as saying that “a male should look like a… man, and a woman should look like a woman.”
The Supreme Court (aka “SCOTUS”) has previously interpreted the US Civil Rights Act as banning discrimination based on sex stereotypes: in 1989 it “found for a woman who had not been promoted because her employers found her too aggressive and her manner of dress not feminine enough.” In the current case it will decide whether this decision can be applied to transgender people.
The right uses feminist arguments
During the court hearing, a lawyer for the funeral home argued that if we don’t let employers sack people for being trans, women will suffer. In doing so he played heavily on concerns raised by gender critical feminists:
Hypothetical questions about what the court’s eventual decision will mean for society featured prominently, particularly as it pertained to gender-specific restrooms and sports programs. John Bursch, an attorney for the funeral home… warned that transgender women will work at shelters for women.
Cole’s position “would mean that a women’s overnight shelter must hire a man who identifies as a woman to serve as a counsellor to women who have been raped, trafficked, and abused and also share restroom, shower, and locker room facilities with them,” Bursch said.
One brief supporting the funeral home argues that “Judicially rewriting sex discrimination in Title VII [of the Civil Rights Act] will spill over into other federal laws that prohibit sex discrimination… It will deny women and girls fair opportunities to compete in sports, to ascend to the winner’s podium, and to receive critical scholarships. It will also require domestic-abuse shelters to allow men to sleep in the same room as female survivors of rape and violence. And it may dictate that doctors and hospitals provide transition services even in violation of their religious beliefs.” (quoted by Business Insider)
Meanwhile the right wing New York Post recently ran an article from a woman complaining, quite correctly, that transwomen’s entry into female sports events undermines women.
Unfortunately, some gender critical feminists are allying with the right.
Some gender critical feminists collaborate with the right
The Stranger newspaper reports:
In August, the radical feminist group the Women’s Liberation Front (WoLF) filed an amicus brief in support of Harris Funeral Homes. “WoLF’s interest in this case stems from its interest in protecting the safety and privacy of women and girls and preserving women’s sex-based civil rights,” the brief reads. “Those rights have been threatened by recent court decisions and agency policies that embrace the vague concept of ‘gender identity’ in a manner that overrides statutory and Constitutional protections that are based explicitly on ‘sex,’ which is precisely what Respondents are asking the Court to do here.”
WoLF goes on to argue that Stephens is trying to redefine “female” from an immutable, biological category to, basically, a feeling: If you say you’re female, you are one. And if the court rules in her favor, according to WoLF, it will threaten the protection of females in all manner of ways, including in sex-segregated spaces like prisons, locker rooms, and shelters for abused women.
WoLF members demonstrated in support of their stand outside the Supreme Court at a rally “co-sponsored by Concerned Women of America, a homophobic and anti-feminist organisation”. Pinknews reported on this, adding that black British lesbian activist Linda Bellos was there supporting this rally, “backing the Trump administration’s efforts to make it legal to fire LGBT+ people.”
The Stranger notes that “the decision to work with ADF has not gone over well with other people who may agree with WoLF that the conflation of sex with gender identity is ultimately harmful for females.”
In 2017, for instance, a group of detransitioned women issued a statement after ADF started contacting detransitioners to participate in a potential malpractice suit against medical professionals.
“The ADF has fought against women’s reproductive rights, LGBT non-discrimination laws, LGBT anti-bullying campaigns in school, and same-sex marriage,” they wrote an open letter to detransitioners. “We ask you to think critically about this and reject any ‘support’ that would allow the ADF to treat our painful histories and financial vulnerability as an opportunity to promote their anti-LGBT and anti-woman agenda.”
Ruth Serwotka, a leading gender critical feminist in Britain, points out that WOLF have previously worked with the right wing Christian group Family Policy – “A more perverse or problematic alliance could not be imagined.” She adds:
The drift towards the narrative of acceptance of this alliance with hard right forces… is the start of a path towards the co-option of the growing women’s movement by the forces that exist to defeat us… Yes, it is an outrage that we are bullied and intimidated by sections of the left. But still we cannot make an alliance with people who would remove our bodily sovereignty, curtail our freedom to resist, enforce a sex-segregated family model, police compliance with subservient gender roles, remove rights from women of colour and prevent human rights for lesbians and gay men, and for transgender people.
Serwotka also provides some important historical context:
Often reflecting differences of class, some middle class suffragettes, including Emmeline Pankhurst herself, had rather a soft spot for nationalism and war. Small but not insignificant elements within the militant [suffragette] WSPU bought into an ugly reactionary nationalism. A few allowed that internal logic to play out and became supporters of the British fascist Oswald Mosley in the 1930s.
The notion that women, simply by banding together, can be divorced from wider political and social forces, is reactionary nonsense.
Alliances with the right are always toxic
Conservatives can oppose gender ideology from the right, just as they could oppose Russia’s bombing of Syrian rebels as a challenge to US imperialism rather than as a means to crush a popular revolt; just as many right wingers have supported Brexit out of nationalism and racism rather than as a blow against the neoliberal, austerity-driving EU. But we cannot join forces with imperialists, racists or bigots without aiding them and undermining ourselves.
Alliances with the right always benefit the right, not our side. They have the weight of tradition behind them, the “common sense” inherited from the past. Right wingers usually have greater resources. Most importantly, our side relies on the ongoing, day-to-day commitment of ordinary people rather than bureaucracies or money machines, and support from ordinary working people melts away when they are confused or disillusioned by what we are saying and doing – and that’s just what happens when we cuddle up to known enemies.
Support Aimee Stephens, oppose gender ideology
We face a war on two fronts. Any victory for trans rights is likely to be exploited by the corporate mass media to reinforce gender ideology and the sexist redefinition of women. The neoliberal establishment is working hard to shift the “natural” foundation for women’s feminine inferiority from biology to a mystical inner essence known as gender identity. In official documents, this mystical notion is slowly replacing the material reality of sex; much of the scientific establishment has betrayed science by denying the sexual binary. A victory for Aimee Stephens in the Supreme Court may turn out to be one more milestone in the consolidation of gender ideology as the new orthodoxy.
However, gender ideology is not the same as transgender people. Stripped of this sexist wrapping, they are simply people who take up their right to live by the cultural conventions of the opposite sex, challenging traditional sexist beliefs as they do so. The sacking of Aimee Stephens was an attack on human rights and workers’ rights. And a clear-cut, wholesale victory for hardline social conservativism could also set up a broader attack on gays and women, as has been argued by Gillian Branstetter, media relations manager for the National Centre for Transgender Equality: “If it’s legal to fire Aimee Stephens for being transgender, it very likely becomes legal to fire a lot of people who aren’t transgender but who don’t conform to stereotypes.”
Progressives need to fight the sexist redefinition of women, fight intrusions into women’s spaces, sporting contests and organisations, fight the mutilation and sterilization of children, fight against gender ideologists’ campaigns to sack academic and medical critics and to silence progressive opponents. But the war against this new sexism is only set back by siding with old-guard bigotry. In the Supreme Court battle, the bigots are the main enemy.