What Can I Doooooo? with the ACLU: Gillian Branstetter on Trans Freedom

Celebrate pride month by protecting trans rights in the U.S.

HAPPY PRIDE and welcome to the second installment of our monthly interview series, What Can I Doooooo? with the ACLU. This month, Gillian Branstetter is here to tell us what we can doooooo to fight for trans freedom. This newsletter is packed with useful, nuanced info about the far-right legal movement’s attacks on trans people’s right to self-determination. (Which, as you’ll see, ends up being an attack on everyone’s right to self-determination!)

In case any of you were the kind of kid who liked to get their homework out of the way as soon as they got home from school, here are the links to Gillian’s two calls to action:

You can learn more about these two actions in the transcript below, which has been lightly edited for readability. If you’d like to listen to our conversation, you can! Just press play:

Meet Gillian Branstetter

W. Kamau Bell: Hey! What's up, everybody? It's me, W. Kamau Bell. Welcome to my Substack, Who's With Me? You know, Substack is the big room. Who's With Me? is the VIP room. And now we're in the real VIP room. I don't know if you know this, but there's actually like a real VIP room. Sometimes you get into the VIP room and you think I'm in the VIP room. And then there's another VIP room. We're in that room right now. It’s "What Can I Doooooo? with the ACLU" where I talk to awesome people from the ACLU about the upcoming election and things we should focus on for the future of America? I say with a question mark sound because does America have a future? Hopefully we'll find out as we go forward that it does. 

Today we're talking about trans rights with Gillian Branstetter, an expert on all those things. It's nice to meet you, Gillian.

Gillian Branstetter: It's a pleasure to meet you. Thank you so much for having me on.

WKB: First of all, I'm just gonna ask the question that is somewhat annoying, but I want you to feel free to answer it the way you want to answer it, as opposed to just, “I'm fine.” So, how are you doing?

GB: Well we are managing a lot right now in the ACLU trans portfolio. It has been an immensely difficult and brutal few years. I've of course been amazed at the ingenuity and the creativity and the strengths and the adamance and the defiance and the joy of so many trans folks and our families around the country that I've gotten to work with.

I could talk a bit about my role at the ACLU and what working with those folks means. But it can feel that even if you aren't trans, even if you aren't queer, there's a sense of precariousness and a bit of nervousness.

WKB: Yeah, I certainly respect all that and understand all that. You know, two steps forward, one step back, or sometimes four steps back, but we'll talk about all that. 

So how did you come to this work? Let's learn about you a little bit before we get into all these big issues.

GB: So for a while I lived in central Pennsylvania. Rural Pennsylvania. And if you know anything about it, there's a famous line about Pennsylvania that it’s Pittsburgh in the West and Philadelphia in the East and Alabama in between. Rural Pennsylvania – or Pennsyltucky as it's usually called – is a very conservative area. 

WKB: Hahahah. I've heard of Pennsyltucky! That's what I was gonna say.

GB: Like a lot of people after Donald Trump was elected, I started looking for good that I could do in my immediate community, right? There's this old school activism slogan about thinking globally and acting globally. So I started working with a local LGBT center, the Central Pennsylvania LGBT Center, working with trans people and their families. I was working with sort of new adults who were maybe leaving home and seeking support and seeking resources, everything from things that are specific to trans people's needs, like help changing your name and help changing your IDs and documents and things like that, transitioning at work and getting workplace policies, as well as more concrete needs like housing and just things like community, like friendship. 

And then starting a little shortly after that, I joined an organization called the National Center for Transgender Equality. I'd been a reporter before then covering a broad array of issues and it was a lot about healthcare – both healthcare as an industry and also the opioid crisis, which hit rural Pennsylvania very hard. Sort of merging those two worlds, I started working in communications at the National Center for Transgender Equality. And that was working with attorneys and organizers and activists and experts, trans people and their families, families with transgender youth, and connecting them with members of the media to make sure that their experiences and the very hard work that they're doing is what's leading when the media is talking about transgender people, our rights, or healthcare. 

It's been, it's an uphill climb in a lot of ways. You know, there's so much misinformation. There's so many misconceptions. People bring their own assumptions to a lot of these conversations, and what I found is, through years and years of public opinion polling now, the most consistent measure, the most consistent indicator for somebody's support for policies that protect transgender people, that protect them from discrimination, that protect their access to healthcare, is actually knowing a transgender person in your life. Somewhere between one quarter or one third of people in the US broadly say they know a transgender person. That means most people don't. So when they're hearing all this very heated rhetoric about trans people from politicians, it's very easy for them to rely on what they're hearing from the news media instead of what they're hearing from trans people ourselves.

So now that I work at the ACLU, which remains one of the more active trans rights organizations in the country, this work has only become ever more critical. Unfortunately the political situation for transgender rights has only grown increasingly hostile, especially in the last two, three years.

The Far-Right Legal Movement

WKB: I have so many questions and thoughts about everything you said. I'm just trying to make sure that I don't just go AHHHHHHH, because that's what 2024 makes me want to do sometimes. Just go AHHHHHHH! But it seems to me that 10 years ago, marriage equality was the political football that was kicked around this country. First it was gay people, then Don’t Ask, Don’t Tell, and now trans people have become the new political football for the right. The right seems to think that if we focus people on this issue, we can do a lot of damage to the other issues. Am I reading that correctly? 

GB: That's certainly part of it. If you go back and look at a lot of the same activists right now who are telling you that inclusion of trans kids in school or in athletics or their healthcare, whatever else, is going to cause the sky to fall, they were saying the exact same thing about same-sex marriage 10, 20, 30 years ago. And what happened after the Supreme Court's affirmation of the right to marriage for same sex couples was . . . a lot of those couples got married. 

And if you look at reactions to that ruling back in 2015, you see that they had to retreat a lot because the ruling came on the heels of a rising tide of public opinion as well. It was pretty much just around Obergefell when you started to see the public opinion on same-sex marriage rights begin to teeter over the majority. And now it's to where 60% of Republicans support same sex marriage. 80% of the country supports it. This year we're celebrating the 20th anniversary of the Supreme Court of Massachusetts legalizing same sex marriage in that state. Over time, as more gay couples got married, it became harder to believe the lies that were being told, that this was going to cause chaos, that this was going to destroy the American family, and it's going to lead to divorce rates and things like that. 

The only thing I would caution is that marriage as a right is so important, and people have been able to build their lives around it, and it was such a historic fight and a historic victory. It was also a small-c conservative goal. You know, throughout that fight, there were lots and lots of queer activists who were saying, “We need to think beyond marriage.” So it's not throwing gay marriage aside, but what does supporting the freedom of all queer folks to live their lives freely and safely mean beyond just the legal rights to marriage? The legal right to marriage is, after all, grounded in the right to privacy. Shouldn't we be thinking of how to build community, build resources? And a lot of those people were trans people who had been kind of sidelined a lot of the time by including mainstream queer rights organizations. I'll note that ACLU was an early leader in including trans folks on that site. 

So certainly the absence of fear-mongering about same-sex marriage as a political football, as you put it, that certainly did motivate a lot of far-right activists to begin turning their attention to trans rights generally. Another factor was a more sympathetic cultural visibility, right? 10 years ago now Laverne Cox was on the cover of Time Magazine. Things like that. Certainly trans folks were in the culture before then – go ahead and rewatch 30 Rock, rewatch Friends, rewatch Grey's Anatomy, right? The problem was that the stories that were being told about trans folks were often very dehumanizing, were often meant to shame and embarrass us, to portray us as sickly or villainous. And what happened over the last 10 years is a more sympathetic turn amongst some of those same storytellers, as well as trans people using the means of storytelling, as it were, and producing our own narratives and having our own voices heard.

For the far-right legal movement, this is an existential threat. Because at their core, they don't just have this very narrow vision of the family that they still feel is being targeted by same-sex marriage rights, but also these very narrow definitions of not just who gets to be a man or a woman, but what men and women are for. Because, for trans people, our conceptions of manhood, of womanhood, masculinity, of femininity are rooted in self-determination, that is perceived as a really dire threat to this very narrow worldview. It’s the same worldview that's banning abortion, that’s banning contraception, that’s banning IVF, that has these very rigid understandings of how you should be able to live your life and the kind of life story you should be able to write for yourself.

Why are they so upset about sports?

GB: Starting around 2018, 2019, a year after the court’s decision in Obergefell, we saw the first statewide bathroom bill passed in North Carolina. Folks may remember the fight against HB 2 in North Carolina where you had large companies boycotting the state and, you know, Bruce Springsteen pulling out of concerts, and the NBA pulling their All-Star game out of the state. They did this all in protest of this measure that was trying to force trans people to use the bathroom inconsistent with their gender identity, so forcing me to use the men's room, for example. 

Importantly, you also saw the Department of Justice filing its first lawsuit on behalf of transgender rights against that state's law. Pat McCrory, who was the governor of North Carolina at the time, lost his job in no small part because he championed this bill that was not only discriminatory, that was not only to a lot of people just a distraction, but was also now costing the state's economy millions and millions of dollars. That was seen as a real critical victory against the right’s attempts to make transphobia their new frontier, their new fundraising mechanism. Because that was unsuccessful for them around 2018, 2019, they started to go back to the drawing board. 

That's how they landed on transgender athletics as the new issue for fear mongering that they could basically just manufacture from whole cloth. Importantly, they were still trying to get a lot of elected Republicans to adopt a stance. But after seeing what happened to Pat McCrory, a lot of them were very nervous about being wildly transphobic. At the same time Donald Trump was nominating judges, including judges to the Supreme Court. Tthe right wing was reshaping the judiciary in a way that made clear that they were likely to be overturning Roe v. Wade. They knew that this would be disastrously unpopular, right? So they were trying to lay transphobia in place as the culture war shield for a lot of these politicians. This is why, since the Supreme Court's opinion overturning Roe v. Wade in the summer of 2022, we have seen the steady number of these bills really increase. What the right is telling these politicians is that this will actually help you win over the very same voters who are clubbing you on abortion. 

That hasn't turned out to be the case for a variety of reasons, but I think it's really important to notice that nexus because it's the same politicians who are now banning gender-affirming care for transgender youth that have been leading the charge to ban abortion for decades. The same legal organizations like the Alliance Defending Freedom, which led the legal strategy to overturn Roe v. Wade, in defense of Mississippi's 15-year-old abortion ban. Right now as we're talking, we're waiting for the Supreme Court's opinion on the FDA's approval of Mifepristone, the abortion pill, as well as whether someone can get an abortion in an emergency, in an instance where their life or their health would be on the line. That same organization has offered most of the hundreds of anti-trans bills that we've seen. They've built the models upon which a lot of legislation has been built in pursuit of a legal strategy that I can get into. But that was a lot, so I'll stop there!

Gender-Affirming Care

WKB: I appreciate you getting us from there to here – from marriage equality through where we are today, and also tying it into the overturning of Roe v. Wade because I think, to a lot of people who maybe aren't paying as close attention as you're paying, this stuff all sort of seems random. Why are all these attacks happening? Well, they're coordinated. It’s important to know that these are not a random series of events; they're coordinated attacks. And there's a step-by-step process, which is what scares me. ‘Cause you know there's always going to be another step that the right wing has in this country. I think the only thing that might keep interracial marriage legal is Clarence Thomas, which is a sad thing to say. 

But I would love to know, are there cases currently now that we should be paying attention to as far as trans rights in the Supreme Court or even at the state level?

GB: So, as I mentioned, a lot of states across the country have been moving forward literally hundreds of bills every year since 2021, targeting the rights of transgender people, specifically transgender youth. They've been banning them from sports teams. They've been banning them from using the bathroom and locker rooms consistent with their gender identity. And most alarmingly, they've been banning their access to gender-affirming healthcare. 

I'm going to stop right there. Would you like me to explain a bit about what gender-affirming care is? Because I think a lot of people don't … 

WKB: Please, please.

GB: When we say gender-affirming care, what we're referring to is a broad range of healthcare treatments that a lot of transgender people will access to change their secondary sexual characteristics to align with their gender identity. So if you're seeking masculinizing effects, you may take testosterone to start things like facial hair growth and to deepen your voice. If you're seeking feminizing effects, you may start taking estrogen to build breast growth, to soften your skin, to soften your hair. 

Importantly, what care you can access is heavily determined by your age. And this is, of course, especially the case for a transgender minor, a transgender person who's under the age of 18. I think it's helpful to think of this in sort of elementary, middle school, and high school. In elementary school, a young kid who is expressing a persistent, consistent distress with their gender is not really accessing any healthcare. What a “transition” sort of looks like for them is changing their hair, changing their clothes, new name and pronouns, that sort of thing. An impression that the right often tries to paint is that they’re putting every tomboy on a conveyor belt and off they go. So hormones and surgery and things like that – (1) not only are parents and doctors, of course, obviously involved in this process, but (2) that persistent, consistent part that I mentioned plays a huge role in determining what kind of care will be in the best interest of this young person in both short term and the long term.

When they start to hit the age that puberty usually hits between like 10 and 13, then they may be able to access puberty blockers. So doctors often describe these as a pause button. And I think a lot of people have sort of a reaction and they're like, “Well, wait, puberty is just natural and innate. Why would you be pausing that or stopping that?” One, puberty can be really distracting for trans folks because that's when a lot of the physical characteristics that gender us begin falling into place. And if you're able to avoid those changes earlier in life, you can forgo the need for really extensive healthcare later in life, including surgery. And puberty blockers are also importantly entirely reversible. Once you stop taking them, puberty just sort of goes on its course.

Then when a transgender youth would enter high school, they might be able to access what's called hormone replacement therapy. And that includes the estrogen and the testosterone that I was talking about earlier. I think what's incredibly important to note, like I said, is that (1) this is a very individualized form of healthcare. There is no cookie cutter process that any of these kids are getting put through. This is something that they, their doctors, and their families are determining what's in the best short and long -term interest of the kid that's in front of us right now. And that's really important because it's very easy to portray this in the abstract. 

I mentioned that in public-opinion polling, we've seen the impact of actually knowing a transgender person in your life. We've seen this in state houses too. We've seen Republicans switch parties and vote against these bills and play very pivotal roles in maintaining access to this care because they actually took the time to meet with these families and to meet with these young people. And once they do, they begin to understand that the fiction that the right wing has so archaically been crafting – that's based in panic, that's based in anxiety, that's based in distress – it doesn't look anything like the actual world that trans people are encountering. 

In fact, you know, most trans people really struggle to access this care. Most trans adults really struggle to access this care, let alone young people. And for all the concerns about young people accessing this care, it's actually very small numbers of trans youth that we do see accessing this care, which again, is its own problem. Before states were banning this care, we were working to increase access. We were working to do things like increase insurance coverage for this care. But now, in a very quick span of time, really just the last three years, about half the states in the country have banned access to gender-affirming care for anyone under 18. And that covers over one third of trans youth in the country. Over 100,000 trans youth have now had access to this care completely written off for them by actions by the state.

It's critically important to understand that this care serves as the foundation of their lives. So it turns into the foundation of who they are. We know that young people who are denied access to this care face higher rates of anxiety, higher rates of depression, higher rates of suicide attempts. But more importantly, young people who have access to this care are able to lead happier, more meaningful lives because they're able to be more present in their lives. Having agency over your body and over your life is something that I think a lot of cis people can take for granted. But it's something no trans person will ever really take for granted because we understand how sort of tenuous and precarious that is. 

When these states started banning this care, especially last year, the ACLU has really led the way in litigating and defending these families and their rights to access this care. We challenged the first state in the country, Arkansas, to pass a ban against this care for transgender youth. And then last year when it was like every two weeks, there was another state that was shutting down access to this care, we and our nationwide affiliate network filed no less than a dozen lawsuits and state and federal court defending access to this care.

As those have made their way through the federal courts, judges have given us mixed results. One of the things you've seen is that all of the trial court judges – the judges that were actually required to review the evidence, to hear testimony -- they block enforcement of these laws. They recognize them as openly discriminatory, as likely unconstitutional, and as a very danger to the very youth they were claiming to protect. Then when we got to the appeals courts, where they didn't necessarily need to hear all this testimony, didn't necessarily need to consider all this evidence, there was a lot of hand waving and they allowed a lot of these laws to go into effect. 

So to that end, we are currently waiting on the US Supreme Court to either grant or deny cert in an application that we filed in our challenges against Tennessee and Kentucky's laws, which were fortunately allowed to go into effect by the Sixth Circuit Court of Appeals. So sooner rather than later, even if they deny cert this time, sooner rather than later, this is going to end up in front of the Supreme Court. The court will rule whether these bans are viable under the equal protection clause of the Constitution. 

And we can talk through some of the legal arguments if you want, but right now, that is definitely the landmark case that we're following.

WKB: Thank you for that. It's funny, when you say gender affirming care, Kelly, who works with me on this Substack, pointed out to me at some point in the conversation that everybody engages in gender-affirming actions. Many of us hear “gender-affirming” and think about trans people. But every dude who tries to grow his hair back on the top of his head is trying to affirm his version of his gender. Many heterosexual, cisgender men are on testosterone because they want to feel more manly, whatever that means to them. I think many of us think about gender affirmation as something that’s a trans thing. It’s not me! But we're all engaged in that every time you step outside your house and you put on the things that make you feel more like your version of yourself, right?

GB: I'm sometimes wary of comparing the healthcare that trans people access to cosmetic care and that sort of thing – even though I totally understand what the comparisons come from – because after speaking with countless trans people around the country, after transitioning myself, I understand the really massive difference that it makes in your life. That it is this critical assertion of autonomy over your own body. And much like abortion and birth control, gender affirming care is a medical technology that allows you to escape being defined by your own body, right? 

More and more we've seen politicians and far-right activists attempt to define you by your biology and have your biology be your purpose in life. Like if you can conceive children, if you can carry children to term, that is all you are good for. That is the primary purpose you are good for. I see the hormones and the surgeries that trans adults might access as critical and under attack for the very same reason. Because they present an idea of gender that is rooted in self-determination, rather than one that is rooted in exploitation. And that is terrifying to a lot of politicians who would rather you not have self-determination, who would rather you not have self-governance. 

I totally understand where that comparison comes from. I also think solidarity is so important right now for trans folks. And I think that there is a deep understanding of how dangerous it is when politicians put themselves between us and our doctors, right? Somebody said to me that if a politician is gonna show up at my doctor's office, it better be to pick up the check right? And we're seeing across the country, like not only these really horrifying stories of women who are forced to wait and go into sepsis in a parking lot before their doctor can give them an abortion under their state's abortion ban. I've seen it in Idaho and Texas and Georgia and elsewhere. But also countless people outside of that who have been denied the freedom to control their own bodies. 

As the bans targeting trans youth have been enacted, we've seen families uproot themselves from maybe the only home they've ever known because this care is that important to them. Even if you're somebody who doesn't fully understand this care or maybe has concerns about young people accessing this care, I want you to consider what it would take for you to uproot your entire life and your entire family. Think of finding a new home, finding new jobs, finding new schools, finding new medical providers. Like, do you have a disabled family member that you look after that you have to find care for? Do you have older family members that you look after that you have to find care for? Could you afford all of this? This is a massively expensive venture, right? You would probably only do that for something that was really essential to you. So it's something that was really essential to the happiness and the wellbeing of you and your family. And that's the position that, like I said, for hundreds thousand families across the country are now being put in.

Many will not be able to afford to move and find a new provider in another state. As long-term and as expensive as that is, that's actually the best case scenario. Because the worst case scenario is your young person going without the care that they need. We sued Texas’s ban on gender affirming care for trans youth, and one of our clients has a 16 year old transgender son who relies on testosterone and is now faced with losing this under the ban. So her solution was to move herself and her transgender son to be with one family while her husband and her other kids stay with another family. They're literally separating their family in order to maintain access to this care. 

Even if you're somebody who doesn’t know that this care is endorsed by the American Medical Association, the American Academy of Pediatrics, and the American Psychological Association, do you really think these families are doing this for something that they don't know is essential to the young person's well-being?

WKB: Yeah, and I would add to that, what if you're undocumented? What if you're indigenous? What if you're Black? What if you have America working hard to prevent your humanity on those levels, and then you add trying to access gender-affirming care into it? It's the intersectionality piece that I always think about in these discussions.

GB: Yeah, absolutely.

WKB: And I just wanna be clear, I certainly understand gender-affirming care is a very specific thing, different from me doing pushups. I just wanna be clear about that. 

GB: Yes, yes. Well, I had the same thought because I was reading about Troye Sivan, the pop star, right? And he was talking about his gay meds, one of which was PrEP. For folks who don't know, look up PrEP. Certainly if you're queer, you should be on PrEP. And then the second one was finasteride, which he takes for his hair strength because he said people in his family lose their hair very young.

And I did have the thought of like, that does seem very similar, right? At the ACLU, we've used this phrase, gender justice, and we're borrowing a bit from the reproductive justice frame. The reproductive justice frame is the idea that you have the right not to have children, the right to have children, and the ability to raise them in your community in a healthy and safe manner. So in that same frame, gender justice is about the right to navigate what are heavily gendered norms around society. So when somebody is taking birth control in order to determine if, when, and how they have a child, or even just to control their menstrual cycle, that is gender affirming, right? When a queer man like Troye Sivan is taking PrEP, he's doing so so he can safely partake in his sexuality, right? That too is gender affirming. So I'm not against a very broad understanding of that. The only reason I like to focus on abortion and birth control is because they're under attack by the same people, and solidarity and support of all three – trans people's healthcare, abortion and birth control – is so critically important right now.

The Far-Right Legal Movement’s Attempts to Gut the Equal Protection Clause

WKB: Yeah, and I think it’s the transphobia, the homophobia, the LGBTQ hate in general that mean that that certain care is seen as “extra” or “weird” when Viagra and all these other things are just accepted. Like, “No! We need to get these on the shelf.” When heterosexual men want these things, they’re not demonized in the same way.

GB: Importantly, the laws that we're talking about that banned this care for transgender youth, specifically exempt them for cisgender youth. And that's really important because it's one of the pillars of our legal arguments against these laws. They violate the equal protection clause of the US Constitution out of the 14th Amendment because they ban care for transgender youth that is readily made available to cisgender youth. 

So all of the healthcare that I was talking about earlier – synthesized hormones like estrogen, testosterone, things like puberty blockers – the majority of the time those are being prescribed to a minor, it's not a transgender youth, it's a cisgender youth. For example, right now a lot of doctors are trying to figure out why young girls are going into puberty earlier than they used to. And one of the temporary solutions for this is puberty blockers, the same puberty blockers that trans kids take. And these have been prescribed to kids who enter what’s called precocious puberty for literally decades. Or for example, cisgender boys who grow up with gynecomastia (where they grow up with excess breast tissue and develop breasts in their adolescence), under the same laws that would ban a 16-year-old transgender boy from getting a mastectomy to resolve his distress over his breasts, a 16-year-old cisgender boy could still access the very same surgery. They aren't concerned about the risks of this care or whether minors can consent to it or anything like that, or else they'd be banning them for everyone. They want to maintain access to those for cisgender youth because they affirm their gender assignment rather than transgress it, right? Because they affirm these very rigid gender norms that they want to enforce at the full force of the law rather than allow people to subvert them.

WKB: While we're talking about young people, can we talk about the athletics piece you mentioned earlier? I know there’s a case in West Virginia. Can you talk about their athletics ban briefly?

GB: Sure. So I mentioned that the wave of laws that have been targeting transgender folks are across a broad array of areas, and one of those has been the participation of transgender athletes, namely the participation of transgender girls on girls’ athletic teams. I think it's about 23 states in the country that have now passed blanket bans on participation for transgender girls on K-12 athletics teams. We have challenged these laws in Tennessee, Idaho, and West Virginia. In West Virginia, we are challenging that law on behalf of a 13-year-old transgender girl who has never had testosterone in her body. And that's important because one of the concerns that gets raised, not just by the right, but I think a lot of people who would like to consider themselves trans-inclusive, is this idea of fairness. They’re concerned that a transgender girl might have some – any – advantage over their cisgender competitors. 

We are challenging this law in West Virginia on behalf of this 13-year-old girl. Consistently the courts have found that the law discriminates against her precisely because they aren't considering anything. They aren't considering the fact that her body is not that of a cisgender boy. They're trying to claim that it's the letter on your birth certificate that determines your athletic capability. 

If you turn on Fox News, you will hear about trans athletes. You will hear more news reports about trans athletes on Fox News than there, in fact, are transgender athletes. By the way, our client in West Virginia is the only open transgender athlete in her state. And that's been the case in a lot of states that have passed these bans. These states have one or two openly transgender students. In Utah, there was a member of the State Board of Education who was officially censored by the state legislature because she posted a photo of a young teenage girl that she was accusing of being a transgender girl on her social media. A bunch of far-right types lept on her and basically tried to ruin this girl's life. They stalked her, harassed her, sent her messages to her home. And she wasn't even trans. She was a cisgender girl who was just muscular. And

WKB: And that's the thing that happens to black women athletes all the time. If they're too good at athletics, people accuse them of being trans or secretly a man or blah, blah, blah.

GB: Yes, we've seen this, especially at the Olympic level where they've tried to implement like sex-testing policies where, if somebody is accused of not really being a woman or not being woman enough, then the IFC will subject them to hormone tests. Basically they try to define a certain level of testosterone that women are allowed to have in their body. Of course, you know, cisgender men and women have both testosterone and estrogen in their bodies to varying levels. 

And to your point, I think the case in West Virginia is so important because they often try to portray their opposition to transgender athletes as somehow rooted in science or sports medicine or fairness or whatever else. And clearly they're not interested in that at all. And oftentimes these accusations are simply made based on appearance. Is this person feminine enough? And your point, who's determined as feminine enough, is often heavily racially coded. 

So one of the reasons that they've landed on this is focused on the word sex in the law. So there are a number of laws which prohibit sex discrimination, discrimination on the basis of sex in the law. Title VII of the 1964 Civil Rights Act, which prohibits sex discrimination in employment. Title IX, which prohibits sex discrimination in educational settings, schools, and section 1557 of the Affordable Care Act, which prohibits discrimination in healthcare. Since since the founding of the ACLU's Women's Rights Project, what counts as sex discrimination under the law has been broadened over time. So for example, in the ‘70s, you had employers claiming that discriminating against a worker because she's pregnant is not a form of sex discrimination. Or discriminating against a woman because she doesn't dress femininely enough is not a form of sex discrimination, these, you know, past employers have claimed. Thanks to the work of feminist legal advocates, this definition of sex discrimination has broadened to cover things like pregnancy discrimination, to cover things like sexual harassment. And especially in the last few decades, it's successfully been extended to cover discrimination on the basis of sexual orientation or gender identity. So, discriminating against somebody because they're queer, because they're transgender.

The idea being that if you would fire a man for marrying a man, but you wouldn't fire a woman for marrying a man, then you are inherently discriminating on the basis of sex. Along these lines, we defended a transgender woman in Michigan named Amy Stevens, who was fired from her job at a funeral home almost immediately after she came out as transgender, after she announced she was going into transition. As this made its way up to the Supreme Court, it got paired with other cases of workers being fired because they're gay. And in 2019, the Supreme Court heard arguments basically asking them to decide whether discrimination against a gay worker, against a trans worker, is prohibited sex discrimination under the 1964 Civil Rights Act. I know this is all a little wonky and extensive, but it's important. I'll explain why. 

In the summer of 2020, the Supreme Court issued its opinion, and we won 6-3 from the Supreme Court that didn't look incredibly different than the one we have now. The court ruled that discrimination on the basis of sexual orientation or gender identity is sex discrimination. This was greeted by the right wing as an apocalyptic moment. Senator Josh Hawley, he's no friend of ours, and his wife, Erin Hawley, is an attorney for the Alliance Defending Freedom and who argued against the FDA's approval on mifepristone just a few months ago. He said that this ruling on behalf of trans and gay workers was so awful that it represented, “The end of the conservative legal movement.” That's how important it is for them that they rigidly define sex and gender in the law. Not just who gets to be a man or a woman, but what men and women are for. And importantly, whereas a right like marriage was grounded in the rights of privacy, the right against discrimination in the workplace is in the public space. Suddenly you might have to employ gay or transgender people. Suddenly gay or transgender people might be entitled to work alongside you. And it's really after that opinion that you see the number and the extremity of anti-trans bills being introduced in state legislators begin to skyrocket. And specifically they focus on athletics.

School athletics are subject to Title IX, which prohibits sex discrimination in educational programs. And they see athletics as their best chance to limit the scope of that Supreme Court decision I mentioned earlier, and to say, “Actually, the Supreme Court only meant sex discrimination in the workplace. It didn't mean it in all these other settings where sex discrimination is prohibited.” A logic which is facetious at best. But that's a pivotal reason why these fights are so important. It's not just about transgender athletes. It's in fact about safety from sex discrimination in the law. It's about trans rights more broadly. It's even about abortion access. In the Dobbs opinion, they were ruling that laws that ban abortion were not sex discrimination, even though they very plainly discriminate against the body on the basis of sex. And that's part of the same project as these laws targeting transgender athletes to narrow the protection of these laws in a way that isn't just bad for transgender women and girls, in a way that's bad for all women and girls.

What Can I Dooooo?

WKB:  Thank you for all this. So people want to know what they can do. That's why this is called What Can I Doooooo? What would you tell people who are listening now who want to help and maybe are new to some of this? What can they do to help these issues along?

GB: You know, I mentioned this phrase earlier – thinking globally and acting locally. 

(1) One of the first things I would encourage you to do is to look into the organizations that are defending trans rights in your own backyard. And that includes, by the way, if you live in these nice blue progressive areas, because we know transphobia exists in these nice blue progressive areas as well, even if it isn't as loud. There is a great organization called the Trans Justice Funding Project that has a great directory of local independent trans led organizations who I'm sure would enjoy your help. 

(2) The second thing you can do is support our work at the ACLU. For the past year we've been watching what's happening in Congress and specifically measures to take these restrictions on gender affirming healthcare to a national scale. And most worryingly, Margie Taylor Greene introduced a law that would not only ban gender affirming care for transgender youth, but defund access to it for transgender people across the country by removing insurance coverage for it. If you click this link, you will find a very easy means of sending a message to your member of Congress. And again, I'm going to stress, no matter what party they're from, no matter what letter comes after their name, we want to make sure they hear your support for transgender people's freedom and autonomy.

WKB: Thank you for that! If you reach out to a local trans rights organization and you're a person who does not know a trans person, as we talked about earlier, then maybe you meet some trans folks in your life! So, you know, it's a double win.

GB: Well, right. And you'll often find that they're working alongside other issues that you already care about. A lot of these organizations are working with abortion funds to make sure that they're expanding access. They’re working with immigration rights groups. They're working with renters unions. Trans people face higher rates of poverty, higher rates of homelessness, right? A lot of these organizations are doing incredibly life-saving work and working to keep trans people safe on the street, right? Trans people are overrepresented in the sex trade, they're overrepresented in homeless shelters and juvenile detentions and prisons, right? So even outside of the high scale political context that we're talking about, trans people face a lot of barriers, and that's why I stress that, no matter if you live in a red state or in a blue state, like there are trans people in your own backyard fighting for their own dignity and their own safety and they need your support.

Thumbs Up, Down, or Middle?

WKB: The last thing I ask is – on this issue of trans rights in this country – how do you feel about it generally? Thumbs up, thumbs down, thumbs somewhere in the middle? Where would you put your thumb? Show me on the screen and I'll describe it to people who are listening.

GB: You know, I feel like it's cheap, but I'm going to go somewhere in the middle. 

WKB: But is it leaning down or is it just sort of shaking in the middle or is it?

GB: I'll shake upward and I'll tell you why. There's a Toni Morrison quote I think a lot about. “We can't be optimistic, but we can be clear.” I think sometimes it's very easy to say that the sky is falling, that if this passes, it'll be the worst thing ever. If this candidate gets elected, it'll be the worst thing ever. And obviously the stakes are enormously high, right? Obviously we do need to lead in this place, but there is no year zero, right? The world never ends. There's always a day out. So even when we are facing all these critical fights – not just on trans rights, like there's so much on the ballot in November, there's so much at stake across the issues that I know you care about and that I know you're all talking about here – I think hope is a practice. Even when we can't guarantee that we're going to win in all these fights, hope is so important as a fuel for leading them, as a fuel for building community and safety with one another.

WKB: Thank you for that, Gillian. Thank you. It's always good to end on a Toni Morrison quote. That's always a solid closer. Thank you for having me today. I think I had you, but thank you for being here today!

GB: Absolutely, thank you so much.

You’re With Me

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June Office Hours: Zoom Edition

Thanks to everyone who joined our May office hours! Doing it over Zoom where we can all see each other and have a true back-and-forth conversation is really fun. Like a true VIP room. I even ran into one the people in real life the next day at a fundraiser for the Oakland Museum of California! June office hours are happening on Thursday June 27th from 4pm - 5pm PDT/7pm - 8pm EDT. All paid subscribers will get an email with the Zoom link a few minutes before we start, and then we’ll all log on and hang out. If you’ve been thinking about becoming a paid subscriber, this might be the time.