If Aimee Stephens wins, women lose
Earlier this month, in DC, when some of us were there to speak at the rally for the Harris case, a number of us got to meet again with mothers of children whose health has been stolen by the irresponsible medical transition of young people.
Almost every day, WoLF board members and volunteers talk to parents who are devastated by what was done to their families. We talk with them as they struggle to understand how young people with developmental delays, who were dealing with abuse or other mental health problems, or who were made to feel like outsiders by their peers, had healthy body parts or endocrine systems wrecked by doctors who enabled their children’s self harm.
We don’t always talk about these stories, but they drive us. Every time we are tempted to forget why we’re putting up with this, we remember their bravery in trying to keep this from happening to other families. At every step, their losses inform our urgency in trying to stall the movement that lied to their children and broke their hearts. In the US, where a jury just decided that 7 years old is a fine age for diagnosing a child as having been born the wrong sex, 12-year-old girls are now being given mastectomies, and 16-year-old boys are being given vaginoplasties.
We also think about the incarcerated and homeless women being ordered to stay quiet and submit as men who claim to identify as women demand, and are sometimes granted, the legal right to be housed in a women’s emergency shelter or women’s prison. We know that the liberal left has completely abandoned them, and we feel a sense of obligation to continue our work for them as well.
It’s been suggested that these issues have nothing to do with the Harris case, but this is a blinkered view of both the ramifications of the case and the goals of the gender identity movement. It’s sad to see such an analysis featured on WPUK, a feminist site that recently implied we are worse than fascist sympathizers, and now seems to be rooting for same self-identification policies to be included in US civil rights law that they don’t want included in UK law.
This Is Stealth Self Identification
Now, to the legal questions raised.
Elizabeth Hungerford writes that state-based document changes, like changes to birth records, have already given the full force of federal law to these legal sex changes. This theory is so original that it was not offered at all in the Harris case. The term “birth certificate” doesn’t appear once in the oral arguments, which revolved around the concept of self-identification rather than any state-issued documents.
The idea that there’s a states’ rights argument whereby a state-issued paper sex change overrides the meaning of “sex” in federal civil rights statutes like Title VII wasn’t the question before the court. Even if it were, the fact remains that fewer than half of the states grant legal status to the concept of “gender identity.”
This case was not about state-issued identity documents. The only document provided in the lead ACLU brief in support of a gender identity claim was Stephens’ letter to his employers, declaring that he wished to live “as a woman.”
What state document changes have done, though, is effectively given a significant number of people a right that currently has no consistent federal remedy. We would argue that a full grant of all sex-based rights and recognition was neither the intent of the original document- change laws, nor the intent of the authors of the Title VII civil rights laws under which Stephens’ claim was originally brought.
If that had been the case, why hasn’t it been argued? Why is anyone trying to change federal law to allow self-identification of sex? Apparently all the nation’s top legal minds, all nine Supreme Court justices, and the entire Democratic Congressional Caucus, just kind of missed this point? Or maybe we should believe gender identity campaigners when they say that their demands will be satisfied by nothing short of a nationwide self-identification law with a corresponding full suite of federal civil rights remedies covering not only dress codes but enforcement of “preferred pronouns,” opposite-sex bathroom and locker use, and men housed in women’s emergency shelters and prisons.
Regardless of what anyone’s documents say, when confronted with someone who’s a man, employers and business patrons have not previously been required to act in most circumstances as though it were literally true that he’s a woman if he says so. A private entity might choose to adopt these polite fictions as a courtesy, but there was no threat that a federal cop would turn up with an enforcement action.
Neither prison officials, homeless shelter workers, employers hiring for those jobs where sex is a bona fide occupational qualification, journalists, nor police, were ever previously required by federal civil rights statutes to treat people who changed their birth records to reflect their feelings as though the now-inaccurate sex marker were a literal truth. Where the Obama administration began to require this, it was done through executive branch statements, which don’t have the same force or permanence as civil rights law, though they do compel attention because the executive controls funding and enforcement.
Aimee Stephens’ documents were also not brought into the 2-part lead argument by the ACLU. On one hand, they asked for a self-identification standard based on the undefined state of “being transgender,” then on the other that Stephens was being discriminated against under a sex-stereotyping argument that tries to have it both ways regarding Stephens’ actual sex. ACLU counsel argued that Stephens was being discriminated against both for being the wrong kind of “woman,” and then also for being “thought” to be the wrong kind of man.
“When Harris Homes fired Aimee Stephens because it learned about her sex assigned at birth being different from her gender identity, it did not make sex irrelevant to her ability to succeed at work. It made it determinative. Think about it this way. If Harris Homes fired a man because he was a man that would be sex discrimination. If it fired an employee because he was insufficiently masculine, that would clearly be sex discrimination. In this case, Harris Homes fired Aimee Stephens because he thought she is a man who is insufficiently masculine. That too must be sex discrimination.” – David Cole, ACLU oral arguments in the Harris case, October 8th, 2019
The gender identity movement has brought case after case to federal courts based on the fact that neither document changes nor self-identification prevents people from noticing the sex of other people, most of the time, and reacting accordingly.
Because human beings can’t change sex. No matter how ridiculous state governments have been about this, no piece of paper or verbal claim can make that so.
If every legal sex change based on feelings were reversed tomorrow, nothing would materially change about the people involved. They would still be the same sex that they were when they were born.
Though if the Supreme Court allows sex-based dress codes to stand, while saying that a man can follow the women’s dress code if he has a woman’s “gender identity,” they’re affirming the right of a man to claim he’s a woman and make everyone around him go along with it, because it treats fashion choices as a deeply important indicator of sex, while treating sex itself as a stereotype and mutable.
The Stephens case has been argued all along as being a matter of self identification.
Stephens wrote a letter to his employer saying he wanted to be a woman. That’s the whole argument. That was his documentation.
We can wish this case was about something else, but it isn’t. And no one can make Stephens a woman, because that’s impossible.
It is also important to remember that the Supreme Court accepted the Harris case but limited it to a specific, though convoluted, two-part question: “Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).” Nowhere in this question does there appear any definition of “status as transgender,” or any clue as to how the Court will apply the concept of “sex stereotyping” to the undefined class of “transgender people.” These unknowns are what make the Harris case such a threat to the rights, safety, and privacy of women and girls, and that is why WoLF filed a brief warning the Court of the likely consequences.
Of course the Supreme Court could certainly decide to strike down sex-based dress codes, and find for Stephens on a basis of gender nonconformity as a man. They’re the Supreme Court, no one will stop them. Still, the justices don’t usually widen the questions brought to them, as Hungerford admits. And, perhaps more importantly for the long-run, that is not the relief Aimee Stephens or the ACLU seek or would accept.
Hungerford suggests that a ruling preserving sex-binary dress codes would be ideal under the circumstances, so long as people can choose whether to comply with the “female” code or the “male” code. She wrote:
“I believe that SCOTUS can and should rule without regard to “transgender status” and in favor of Stephens on the basis of his gender non-conformity and a prohibition against sex-based stereotyping. I hope for something roughly as follows: employment decisions made on the basis of the employer’s sex stereotyping expectation or the employee’s non-conformity to those sex-based expectations is unlawful under Title VII. An employer may have a “women’s” dress code and “man’s” dress code (binary), but employees must be allowed to choose which dress code they will adhere to without regard to the employee’s sex.
“In my ideal world, SCOTUS would also demand that all employers offer only unisex or sex-neutral dress codes, but that would be to rule outside the questions they have agreed to answer.”
Such a ruling would grease the ramp towards self-identification. If anything, it would also deepen the hold of debilitating doublespeak in our politics. How does this work then, in terms of meeting gender abolitionist goals? Would we keep the current system of sex-based rules but allow anyone to pick their preferred sex on the nebulous basis of “being transgender”? That would be an odd goal for feminists to support, given that it’s exactly what the ACLU and Stephens have requested from the beginning. Maybe it would go a little something like this …
Sure, you can have a women’s team! You have to let men on it, though.
You can have a women’s changing room! But some men are going to change there, too.
Yes, you can have a female nurse take care of grandma! But when that male nurse who says he’s a woman is on duty, he’ll take care of her.
As an outcome, it would be as incoherent as every other facet of the push for self identification. It would likely bring down an avalanche of lower court rulings favoring the right of people to make others lie about their sex, through words and actions, in many circumstances where individuals and authority figures now have latitude to disregard inappropriate requests based on a person’s sex.
And all of this reinforces the idea that there’s a state called “being transgender,” as per the ACLU’s brief on behalf of Stephens, that’s measurable and objective. On the basis of this belief, children are being transitioned at ever younger ages. On the basis of this belief, young lesbians who get asked their pronouns all the time now are being convinced that only men feel as they do, so they must be men.
It would be one thing if Stephens had come in from the start demanding a right to wear skirts and dresses to work as a man. That’s not what happened. That’s not what the ACLU argued.
The ACLU counsel, David Cole, did repeatedly argue that only the question of employment discrimination was being discussed, only on the basis of sex. Cole said it wouldn’t decide the issue of bathrooms or other intimate facility use, that it wouldn’t decide the issue of sports teams, or sex-based dress codes — in fairly extreme contrast to many other statements that ACLU staff have made about this case and the surrounding issues — but the justices repeatedly raised concerns that it would do just that, by opening the door to many similar suits, which Cole agreed it could.
And what does it mean to show up to work “as a woman,” if it doesn’t either mean being a female person, which it can’t in this case, or dressing according to the women’s dress code? Cole said:
“Well, I think, I mean, the Sixth Circuit expressly said that the reasons for firing her extended beyond the dress code. Counsel for Harris Homes conceded at oral argument in the Second Circuit [sic] that she would have been fired if she showed up as a woman, even if she were following the dress code.”
How is it following the dress code to declare an explicit intention to violate it, based on sex?
Cole also said this, “First, on the question of judicial interpretation, we are not asking you to apply any meaning of sex other than the one that everybody agrees on as of 1964, which is sex assigned at birth or, as — as they put it, biological sex. We’re not asking you to rewrite it.”
You could believe they weren’t trying to rewrite the definition of sex only if you took Cole’s statements out of context of the other things that he said, and out of the context of the many other cases that the ACLU is bringing on this issue.
Because very shortly after saying that they weren’t trying to rewrite the definition of sex, Cole said this:
“So, first of all, federal courts of appeals have been recognizing that discrimination against transgender people is sex discrimination for 20 years. There’s been no upheaval. As I was saying, there are transgender male lawyers in this courtroom following the male dress code and going to the men’s room and the — the — the — the Court’s dress code and sex-segregated restrooms have not fallen. So the notion that somehow this is going to be a huge upheaval, we haven’t seen that upheaval for 20 years, there’s no reason you — you would see that upheaval. Transgender people follow the rule that’s associated with their gender identity. It’s not disruptive.”
This is as clear a summary as possible of their actual desired outcome, which is that people who make a claim of “being transgender” can skip the usual rules which will otherwise be left in place for everyone else.
In practice, this means that all such rules will eventually be drained of meaning and enforceability, if not disappear altogether, because there’s no way for Aimee Stephens, or any other man, to show up anywhere, “as a woman.” The only way for a man like Stephens to keep up this polite fiction is to keep appropriating practices and stereotypes coercively assigned to women, or keep pushing into private spaces intended for women.
There are no objective rules for determining that someone is transgender, there’s no way to falsify such a claim, and no way for a human being to change sex. The only claim made in this case regarding Stephens’ status as “being transgender” is that he wrote a letter to his employer saying that he wanted to be a woman from a certain date.
So if Stephens wins, a very likely outcome is that, on the basis of something as simple as a person sitting down and writing a letter about their feelings and wishes, employers and facility managers all over the country are likely to just give in and end all sex-based standards if they don’t want to be dragged all the way to the Supreme Court by the ACLU over it.
No more mandatory high heels, ever, maybe, if you say you want the men’s rules! But also, you will perhaps never again get to change in a women’s locker room without having to worry that there might be a guy in there who wrote someone a letter, or have a women’s sports team, or a women’s shelter, and you might not be able to ask for a woman to do your pap smear.
People said it was ridiculous to think there might be broad consequences to adding gender identity to the Canadian human rights code, too. But that change fueled a Canadian man’s quest to use the human rights law to force women to wax his balls, and it took an international uproar, some very persistent women who braved social media bans, and revelations of deep personal depravity on the part of the complainant, to create a climate where he could be thwarted.
If the Supreme Court justices rule that Stephens was discriminated against as a man because his employer required him to wear long pants, however, they will have to strike down sex-based dress codes entirely. This was not the question before the court though. It would be a surprising outcome. Anyone preparing a brief for the court on the premise that they were going to decide something they explicitly said they weren’t going to decide would ordinarily expect to have their brief disregarded.
A coherent ruling in Stephens’ favor would have to either render sex-based dress codes meaningless and unenforceable, or would have to agree that the law covers self-declared “transgender status” as a separate category.
Madeleine Kearns, at the National Review, has neatly summed up the origin of the transgender movement, so that we don’t have to. But as a start, this changing, and never objective condition has proceeded from having at least some defining medical diagnostic restraints, to now being a matter of self diagnosis and identification.
On the basis of self diagnosis, children are being sterilized. Vulnerable adults with serious, unaddressed problems or histories of abuse, are able to self diagnose a need for hormone treatments and surgeries that are likely to destroy endocrine organs and sexual function, which treatments would not be provided to people not making such claims. And some of the most vulnerable women in society are paying a price as well, through forced behavior and speech that activists claim these vulnerable people need for validation.
On the basis of self diagnosis, or the guided diagnosis of suggestible children, schools and child protection authorities are threatening parents with the loss of their children if they won’t accept a path of extreme medicalization.
Every grant of legislative or judicial authority now granted to the concept of “being transgender” — which is impossible to either define or defy in most circumstances — gives strength to the idea that this is a real thing that, for instance, a seven-year-old child can be incontrovertibly diagnosed as.
All the parts of the gender identity movement, and its claims, operate now as a mechanism for demanding that children be medically transitioned, as surely as it operates as a mechanism for smashing women’s rights and privacy.
To support the gender identity movement as it exists in the US is to support child transition. It wasn’t always, but it is today.
So now, elected officials may finally get involved in a big way, because a jury in Texas agreed that a mother could transition a seven-year-old boy against his father’s wishes. The elected officials who’ve so far stepped up have all been conservatives, perhaps after they or their constituents heard about the case from conservative commentators in the media.
There’s been a strain of radical feminist thought we’ve run into whereby we don’t have to get involved because conservatives don’t like gender identity and will surely stop it on their own. We shouldn’t show up to help because conservatives, they say, are all allegedly irredeemable people and we shouldn’t talk to them.
So then, when we say that we think it’s important to have a feminist perspective in the mix, and maybe conservatives really might care about these kids … the discussions usually stop and the name-calling begins.
Because, sure, the results will be bad, but maybe not for the women who feel comfortable insisting that surely it’s better to do nothing at all, or leave the difficult work to others, rather than have a few conversations with people they don’t agree with. Eugenics against a generation of quirky, troubled, autistic, and LGB kids is awful, they say, but sharing a platform with conservative Christians (whose opinions were the majority not 20 years ago) is a bridge too far to cross to stop it! The erasure of women’s legal rights and bodily privacy is awful, they say, but let’s not try to build solidarity with conservative women who might share these concerns!
WPUK leaders have chosen this opportunity to be partisan flamethrowers, to hide behind irrelevant and wishful speculation. They’ve decided to weigh in harmfully on a fight they don’t understand, and whose consequences they won’t have to live with.
The Bullying Will Continue Until Effectiveness Improves
“The hidden agenda of trashing is to remain helpless and to fail, whatever the ostensible motivation. The payoff is to Be Good (though miserable).” – Joanna Russ
This month, near the beginning of an essay about our brief in the Harris case, Ruth Serwotka of Woman’s Place UK mentioned some women in the suffrage movement who had joined British fascist Oswald Mosley. Then, after having introduced that historic defection from feminist principles to actual fascism, she wrote of our present day work with mainstream conservatives that a “more perverse or problematic alliance could not be imagined.”
Serwotka, as we’ve discussed previously, then described as “trenchant criticism” the claims of a lesbian feminist whose well-known Facebook page has for months been singling out individual WoLF members for deeply personal criticism and ridicule over our jobs, or lack thereof, posting screenshots of our private comments, detailing our external interests for mockery, negatively discussing our families, and even trashing some of us for our sexual orientations. Over the last couple weeks she and her friends have escalated to denigrate a young woman’s resume, to ask us to essentially doxx ourselves to disprove allegations that they made up, to accuse us of practicing conversion therapy, and to continue to suggest that any type of joint political work constitutes an affirmative endorsement of every word and action of everyone else involved.
This criticism is based on the supposed evil of our work with conservatives, which strikes us as especially odd since we’ve been shown evidence that this same ‘trenchant critic’ offered to work pro bono for the Alliance Defending Freedom (ADF) on a gender identity case in 2012.
(Meanwhile, David Cole, the lead counsel for the ACLU in the Harris case, is a proud defender of free speech for white supremacists; something that someone probably has to do in order to maintain free speech for everyone else, but still. Various ACLU chapters have also previously opposed laws against FGM and child marriage, and the organization is infamously responsible for allowing pimps to profit from pornography without restriction in the US. But please go ahead and tell us that standing on the side of mainstream U.S. conservatives is the worst thing we could possibly do.)
Feminists in all countries where gender identity politics have taken over the left live in fear of being attacked by “antifa,” and politically unpersoned by men who call them fascists, or “TERFs,” themselves. Playing not-like-other-girls at each other’s expense will not help.
Gender activists aren’t going to stop trying to no-platform the WPUK meetings because someone there found the real, true witches in the movement and gave us a public kicking.
They hate all of us just as much as each other, from Canada to New Zealand, and everywhere between. Take seriously that they’ve been calling us all “Nazis,” and “white supremacists,” and accusing everyone who doesn’t believe in gender thetans of being responsible for deaths, of having blood on our hands, for years. These are men, after all, who think it’s a hate crime to refuse to have sex with them, and they also really hate lesbians who know that women are female.
Anyone at WPUK think they’re going to like you better because you trash us, or because you call other women racist for criticizing hijab, until you sound just like the woke brocialists baying at your windows like sports hooligans? The Young Labour men blocking the doors to your meetings don’t just have a problem with other women, somewhere else.
Those guys don’t care if you explain yourselves, not any more than you cared when Posie Parker, who’s not a political professional, said she’d accepted an interview without doing enough research. They’d still rather have college boys as Labour women’s officers than any of you.
The situation will get increasingly difficult, because as men continue to take liberties in replacing women in the public square, it’s going to be ever harder not to look at them and say the blatantly obvious.
Large manbabies who think they’re the most oppressed people ever are going to call all of us fascist a lot more times before this is through.
Helping the witchfinders just means you’re not likely to have as much support or solidarity when they come for you next time.
Because all the other women who are watching community norms, and what any of us see fit to criticize or ignore, are going to notice that numerous well-respected figures in radical feminism have no problem going straight to TRA tactics when a disagreement comes up. It’s going to be a further disincentive for anyone to stand with us.
Yet some think it’s fine with many to call other women fascists from a big, public platform. It’s fine to credulously, and immediately, repeat the claims of consistently dishonest gender activists who hate women, before the women in question can even get an explanation out. It’s fine to accept the left’s conventional wisdom, based on coalition politics interests in allying with conservative Muslim men, that all criticism of forced veiling is racist, stifling feminist criticism and international solidarity with other women. It’s fine that any disagreement in tactics must be made public, so that the idea that one is a good and loyal leftist can be preserved, when the entire left hates you, still. It’s fine, it seems, that standards for discourse must remain so esoteric that no one without a long background of political involvement could possibly stand up to scrutiny.
And of course, WPUK’s decision to attack us as being more perverse and problematic than even the fascist-sympathizers of old has just encouraged or strengthened similar attacks by others, and on others, of a similar nature.
In radical feminist and gender critical circles, it’s now open season for panicking at the sight of a cross, like a vampire. Meanwhile, many conservative Christians are okay with listening to people who’ve lost their faith, to consider other perspectives on why people disagree with them and think about how they might approach things differently. Can we try the same thing because it sounds like a good idea, or is engaging in dialogue with your opposition ruined forever now, because conservative Christians do it sometimes?
Some destructive and selfish individuals have even taken to attacking parents who’ve worked with conservatives on the Parent Resource Guide as a “trash fire,” or dangerous, telling them that their grief over severe injuries to their children’s bodies is inappropriate, and in some cases lying about the family stories of former friends. But that’s fine too, it seems, because it’s all in service of criticizing anyone who ever works with American conservatives, who are about half of our electorate and are impossible to simply ignore if you want to make any national policy changes.
The Parent Resource Guide is a humane document that encourages parents to be loving, patient, and honest with children who are going through difficulties that may manifest or be interpreted as gender dysphoria, written in neutral language meant to reach a wide audience. The Guide encourages parents to treat nonconforming children with compassion. But some people had bad experiences growing up in conservative households or communities, so they’re now presenting it as a betrayal of them to talk to other families who remind them of their own.
We certainly don’t agree with every past statement of all those who co-sponsored or endorsed the Parent Resource Guide, ourselves. Some of us who support the Guide have also suffered mistreatment at the hands of family or community leaders who thought that what they were doing was right because of a faith belief. But what do we want to see going forward? What can we do to take what we learned from going through all of that to ask that things be made better for others?
In a liberal democracy, you can’t just cancel people for wrongthink and then those people and their social networks simply cease to exist, or cease to interact with everyone else. In a country with democratic representation, they still get to vote, and participate in public discourse.
If you want things to get better in the future, you have to ask some set of existing people in the present to work with you on making that happen. Actually existing people will be imperfect, we will be irritating, we will have believed or said things in the past that we now regret because we see that they were hurtful. But there isn’t any other kind of person. And it seems to us a lot more reasonable to talk with people who’ve even been railing against the evils of feminism for years — but who’ll extend an open hand against all their previous reservations anyhow, because they see a serious threat to children — rather than self-proclaimed ‘feminists’ who only speak in thought-terminating cliches and can’t be bothered to do anything to protect children, let alone women’s rights, from aggressive, liberal men.
So we would suggest that women in radical feminist circles notice who’s ready at the drop of a hat to act like one of these selfish gender activists, and see who’ll try and destroy someone’s entire life because they’ve committed thoughtcrimes. Is this the kind of thing you want to continue to put up with?
Normal things to say in a disagreement include telling someone that you think they’re wrong, and maybe laying out your reasons, or calling your opposition something like a jerk, if you’re out of both patience and reasons. (Happens to us all!)
It’s not normal to immediately jump to accusations of a willingness to commit mass murder, and then declare total war on someone like you were Winston Churchill of old, banging on about the “Huns.”
Look at who has time to devote entire websites, or press releases, or months’ worth of Facebook posts, to trashing other women as being effectively genocidal over differences of opinion that are well within the realm of ordinary politics, and ordinary beliefs. Notice who thinks it’s fine to call other women fascists in public; not for actual fascism, of course, but for being engaged in political action they don’t agree with, or for sounding like an ordinary person instead of a movement-educated SJW. Notice whose self image is tied up in looking like a good girl for leftist men, groups, or parties, who hate them, and proving this by singling other women out in public for having alleged predispositions to mass murder, when no such thing is in evidence. Notice, and consider keeping your distance.
You might think, ‘Oh, but we’ve been friends for years, we’ve liked pictures of each other’s kids and laughed at each other’s jokes, she’d never treat me like that!’ But she will. She so will. Because she doesn’t take this fight as seriously as she takes acting like a member of woko haram in good standing, even if she’s had her life ruined by exactly the same means that she’s now turning on women who dared to engage in the ordinary political process. When things get hard, she won’t put women’s rights first, nor will she put children’s health first.
None of which will do anything to make a case that feminism is a movement that takes responsibility for trying to fix the problems it describes.
Anyway, feel free as usual to totally disregard the opinions of women who’ve been directly working on the legal ramifications of self-identification proposals in the US for several years now. But a guy said something vaguely like what we’ve said about putting together effective issue-oriented coalitions, back in the old Stonewall UK days. So maybe listen to what he said, about how the fights that won many of us our rights actually worked back when what we now call “conservative” was just conventional wisdom.
“The original Stonewall built single-issue coalitions, even with religious groups that regarded homosexuality as perverse and sinful but could be persuaded to support equality of minorities before the law. ‘Instead of charging at people and calling them homophobic, we addressed genuine concerns,’ says Simon Fanshawe, one of Stonewall’s co-founders. Transactivists are characterising genuine anxiety as phobia, he says. ‘If you have stubble and are claiming to be a woman, women who are frightened of men are going to be frightened of you. That’s not prejudice; it’s reality. I don’t know what the answer is yet. But I’m certain it will not be found by calling people scum.’”