Tag: Bostock

THOUGHTS ABOUT THE SKRMETTI DECISION

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By Ann Menasche

This piece is the opinion of the author and does not necessarily reflect the opinions of Feminists in Struggle as an organization.

Radical feminists, parents and many others holding a range of political views, welcomed the Supreme Court decision in U.S. v. Skrmetti issued on June 11th upholding the constitutionality of a Tennessee law banning the practice of so-called “gender affirming care” for minors under 18.  Many were anxious to put a stop to this medical experiment on a vulnerable group of children and teens, mostly girls, who are gender non-conforming, autistic, and/or survivors of trauma, a majority of whom, if provided appropriate support, would be likely to grow up lesbian or gay with their bodies and fertility intact.

The decision moved the struggle to the states against this sexist and homophobic practice (based on the idea that some people are born “wrong” and need “fixing” so their bodies “align” with sex stereotypes).  Already, 26 states have passed restrictions or bans on use by minors of puberty blockers, cross sex hormones, and cosmetic surgeries for “sex change” and more such laws are now likely.  This is good news especially for these “trans kids” whose bodies are being experimented on and permanently harmed.

But like all victories issued under this right-wing court, some of the reasoning in the decision may be a bit of a two-edged sword that could be used against women’s rights in the future.

The majority decision by Justice Roberts held that Tennessee’s law was not subject to heightened (“intermediate”) scrutiny under the Equal Protection Clause of the 14th Amendment because it did not classify based on sex.  Neither did the law classify based transgender status but merely regulates a medical procedure, removing one set of diagnosis – gender dysphoria or incongruence – from a range of treatable conditions.  Such classifications based on age or medical use are subject only to rational basis review.  This is easily passed here.  The Court points to medical and scientific uncertainty and the reviews and restrictions on use of these treatments on minors coming out of the UK, Sweden, Norway, and other countries.  Justice Roberts also distinguishes Bostock; and further points out that Tennessee law has nothing to do with sex stereotyping or restrictions on clothing, behavior etc. All good news.

However, the Court majority relies on and reinforces some very bad law – that discrimination based on pregnancy or pregnancy-related conditions, including bans on abortion do not constitute sex discrimination because not all women are pregnant, even though only women can get pregnant or seek abortions.  “Thus, although only transgender individuals seek treatment for gender dysphoria, gender identity disorder and gender incongruence – just as only biological women can be become pregnant – there is a ‘lack of identity’ between transgender status and the excluded medical diagnosis.”  Therefore, even were the ERA recognized as part of the Constitution and sex treated as a suspect class subject to strict scrutiny, abortion bans or other discriminatory treatment based on pregnancy could not be successfully challenged as sex discrimination with the current Supreme Court majority.

The concurring opinions are noteworthy.  Justice Thomas’ description of the horror of what “gender affirming care” actually consists of in practice is quite good; as is Justice Barrett’s review of why the transgender population does not share “the obvious, immutable or distinguishing characteristics of a discrete group” to be a suspect class, like sex or race.  Rather, the transgender population is “large, diverse, and amorphous.” and lacks a history of de jure discrimination that women and people of color have faced. The dissent points to bans on cross-dressing and sodomy laws as proof of de jure discrimination against transgender persons; however, in my view, those laws target gays and cross-dressers, and do not specifically target individuals with transgender identities or who medicalize to hide or deny their sex.

Justice Sotomayor’s dissenting opinion argues that discrimination based on transgender status is a sex-based classification, and that the Tennessee law is discriminatory.  She believes that hormones and surgeries are “a matter of life or death”; she also implies that it is possible to switch puberties.  Justice Kagan, while also calling for heightened scrutiny, to her credit, takes no view on how the Tennessee law would fare under such scrutiny.

Finally, not one Justice thinks sex discrimination claims under Equal Protection should be subjected to strict scrutiny.  Of course, there is no mention of the ERA.  Though sex is deemed immutable, because of the existence of biological sex differences that society “celebrates”, the Court unanimously rejects strict scrutiny for “sex” that is accorded race discrimination.  The entire Court is therefore committed to maintaining women’s second-class status.

Open Letter from Feminists in Struggle to the Interim Steering Committee of the Women’s Human Rights Campaign USA:  A Call for Unity among Radical Feminists in the Fight to Amend the Equality Act 

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The Interim Steering Committee (ISC) of the Women’s Human Rights Campaign (WHRC) recently released the “Equality for All Act,” its own version of an amended Equality Act (EA). The EA is a bill pending in Congress that would add “gender identity” and “sexual orientation” as protected sub-classes under the category of “sex” in federal discrimination laws.  Radical feminists agree that the current version of the bill undermines women’s rights.  We are glad to see that the movement has come together to support the idea of amending the bill, rather than calling for a “no” vote as WoLF (Women’s Liberation Front) appeared to do in previous Congressional hearings, and that we agree on several other important points regarding how the bill should be amended or rewritten.

We are also heartened to know that virtually our entire movement including the ISC has now taken a stand in support of including sexual orientation and sex stereotyping protections, separate from sex, in the Equality Act, and everyone also supports the closing of religious loopholes to civil rights enforcement contained in the original bill. However, we feel obligated to point out that the revision of the bill that the ISC has produced is less comprehensive and actually far less protective of the sex-based rights of women and girls than FIST’s Feminist Amendments to the Equality Act that pre-date ISC’s version by more than a year.  We also must object to the undemocratic process that ISC has engaged in that excluded FIST as an organization from having a place at the table,  even though FIST is an early endorser of the Declaration on Women’s Sex-Based Rights, expressed its desire to be part of a U.S. Chapter, and requested to be included in these discussions.

As many radical feminists and our male allies know, the Feminist Amendments to the Equality Act were drafted by a FIST committee of three lawyers and approved following discussion and vote of the democratic body of active FIST members known as the Feminist Assembly. The FAEA, along with in-depth explanation of their necessity and the changes they make to the proposed Equality Act, can be read here: https://feministstruggle.org/faea/. We have several organizations on board as endorsers including the LGB Alliance USA, the Georgia Green Party, and XX Amazons and a total of 146 signers on our website.  We have formed a coalition that we have named the Coalition for the Feminist Amendments to the Equality Act (“CoFA”) which has already held several meetings. CoFA held a forum on November 14th in which more than 150 people participated, and just sent by U.S. mail a letter to all 100 members of the Senate urging them to support the Feminist Amendments.  That letter has been publicly shared at https://lgballianceusa.substack.com/p/amend-the-us-equality-act.

We believe that the approach of FIST’s Feminist Amendments is significantly more protective of sex-based rights than ISC’s draft bill for two reasons:  (1) the Feminist Amendments spell out that female-only spaces and programs do not constitute discrimination based on sex or sex stereotyping; and (2) the Feminist Amendments make robust findings about the subordinate status of women in society, the pervasive nature of male violence, and the need for women-only spaces and programs in the interests of achieving true equality for the female sex.

We want to emphasize that we do not see any principled differences between FIST’s and ISC’s two approaches to the Equality Act, only tactical and strategic ones.  We are all sisters (and brother allies) here in the same movement.  We need each other’s support, respect, and solidarity. Because to our dismay the door to dialogue between our two groups has been closed thus far, we can only speculate as to why the ISC felt compelled to create its own amendments, reinventing the wheel so to speak, as ISC’s draft bill in many respects mirrors our own, though a pared-down version of the original.  The only reasons we can come up with is our use of the word “transgender,” and the comprehensive nature of our approach that might have struck some as overly ambitious.

In our opinion, it is a serious mistake for the ISC Amendments to have failed to include a provision stating that the existence of female-only spaces and programs does not constitute sex or sex stereotyping discrimination.  Despite the fact that the Equality Act has not yet become law,  two federal appellate decisions have extended the Supreme Court’s Bostock decision to hold that it is discrimination based on “sex “ and “sex stereotyping” under Title IX to deny access to sex separated restrooms on the basis of “gender identity.”  The Feminist Amendments clearly define “transgender” (a sub-group of gender non-conforming people with a certain belief system that feminists reject) and strip the term down to size.[1]  We do not treat transgender in itself as either a class or a sub-class with special legal protections. Rather, while the Feminist Amendments do recognize the basic human rights of people who identify as transgender–the same rights that should be provided to all people who do not conform to sex stereotypes—the FAEA’s  definition of “transgender” and  inclusion of protection for female-only spaces and programs,  render the ideology harmless with respect to women’s sex-based rights under federal law.

We believe that if, on the other hand, we ignore transgenderism as the ISC does in its proposed bill, it will come back in far more dangerous ways. For example, the courts could continue to conflate sex and gender identity, decide to define “transitioning” to mean one can change his or her sex, and/or rule that denying access to female-only spaces for males who identify as women is discriminatory based on sex and sex stereotyping.

In the interests of developing greater unity and collaboration among radical feminists and our allies in the fight to amend the Equality Act, we make the following proposals:

  • That a dialogue be begun between representatives of CoFA and the ISC to explore the differences between our two proposals and whether or not it is possible to unite around the broader coalition effort supporting the Feminist Amendments;
  • If it is not possible to work together in support of the Feminist Amendments, that we discuss how best to approach members of Congress and the public in a way that is respectful of and does not undermine each other’s efforts.

In sisterhood and solidarity,

Feminists in Struggle

[1] The FAEA define “transgender” as follows:  “TRANSGENDER. –Transgender is a term adopted by a subset of people who do not conform to sex stereotypes commonly associated with their biological sex and who may hold a deeply personal sense of identity that conflicts with or denies their biological sex.”