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‘Because of sex’ approach to protecting trans people

Many analyses of Bostock decision missed the real history

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(Washington Blade file photo by Michael Key)

“Here, I thought, looking around me, is where it all changed, because I was still too young to understand that history is not simply made up of moments of triumph strung together like pearls. I didn’t know that large changes were made up of many small ones, and of moments of suffering and backsliding and incremental, selective progress; unnecessary sacrifices and the opportunistic, privileged and lucky walking forward over the vulnerable and the dead.” —Carmen Maria Machado

The road to LGBTQ equality has been long and winding, made up, legally, of two paths — sex (gender) stereotyping and “because of . . . sex.” Until the Bostock decision last month we had a quantum mechanical, “Schrödinger’s Cat” causal conundrum — would the decision be based on “sex” as written in Title VII of the 1964 Civil Rights Act, or “sex stereotyping” as developed in the landmark 1989 Price Waterhouse v. Hopkins Supreme Court decision? Many guessed it would be the former, “because of . . . Gorsuch” and his penchant for textualism, but that didn’t stop plaintiff Aimee Stephens’ lawyer, David Cole, from arguing with the latter. Turns out it was the former, but before I trace the social history of that path, I would like to point out a delicious irony.

It’s long been understood that the modern Supreme Court rarely leads, and usually follows, public opinion. That opinion is shaped by the people, and primarily by the people’s activist corps. In the case of the gay rights movement, the people universally known through the 1960s as homosexuals became known in the 70s as gay people. Why? Because the “sex” in “homosexual” directed one’s gaze to sex acts, which is still what most Americans conjure in their minds when they hear the word “sex.” And since many were repelled by the thought of gay sex, it became evident a different, de-sexed, label was necessary.

Similarly with the trans community, which had been universally known as the transsexual community through the 1980s, and which de-sexed “transsexual” to “transgender” in the ‘90s (the first national trans rights group, founded by Riki Wilchins and Denise Norris in 1993, was called “Transexual Menace,” and the second, was the “National Transgender Advocacy Coalition,” in 1999), and then finally just the single syllable “trans” in the aughts, to match the single syllable, “gay.” Language matters. Just as Americans viewed homosexual people through the lens of their sex acts, they viewed transsexual people the same way, often reduced to sex workers and homicidal maniacs (“Dallas Buyer’s Club,” 2013 and Hitchcock’s classic, “Psycho,” 1960).

So, today, gay and trans individuals have their employment rights, and soon full protections with the Equality Act next year, because of a return to the modern source of those rights, the Civil Rights Act of 1964, and “because of . . . sex.” Not gender, but sex, and, refreshingly so, but devoid of any implications of sexual activity. Justice Gorsuch, interestingly, returned to using the archaic term “homosexual” throughout his opinion, but did not revert to “transsexual,” and treated Ms. Stephens respectfully in his comments.

How did we get here? In the weeks following the decision many of the analyses of the decision missed the real history. That history is written by the victors, but it also very much matters which victors do the writing.

The path of “because of . . .” and “but for” sex began in the 60s, as Justice Gorsuch mentioned: Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.

Trans persons won some lower court decisions in the ‘70s, before the religious and feminist backlash began in 1979 with Janice Raymond and then the Reaganites. Trans plaintiffs lost in the late ‘70s and ‘80s because transsexualism was not recognized as a form of sex (Holloway v. Arthur Andersen, 1977, Sommers v. Budget Marketing, 1982 and Ulane v. United Airlines, 1984). And then, in 1989, came Price Waterhouse v. Hopkins, and the landscape utterly changed for trans plaintiffs.

The first, and until Bostock, only SCOTUS decision (and victory) for a trans plaintiff occurred in 1994, in a unanimous Eighth Amendment decision written by Justice Souter on behalf of the plaintiff, a black trans woman, Dee Farmer. The next federal appeals court case, and the first in a string of victories leading to Bostock, was Smith v. City of Salem in 2004, won on both sex and sex stereotyping concerns, followed by another Sixth Circuit case, Barnes v. City of Cincinnati in 2005. Philecia Barnes was also a black trans woman and she won “because of sex.” The only hiccup in this long chain of victories was Etistty v. Utah Transit Authority in the 10th Circuit in 2007. This was followed in rapid succession by the blockbusters: Schroer v. Billington, 2008; Glenn v. Brumby, 2011; and Macy v. Holder, 2012.

It was the unanimous Macy decision at the EEOC, led by Commissioner Chai Feldblum, that protected trans persons in all 50 states, and cemented the “because of sex” approach to protecting trans persons. Professor Feldblum, a major author of the 1991 Americans with Disabilities Act (ADA), had been living in Takoma Park, Md., in Montgomery County in 2007-08 when I led the campaign for Basic Rights Montgomery to pass and defend the county gender identity law. That law generated the first bathroom bill backlash in the United States, and Professor Feldblum, who had been a believer in the doctrine that trans status was a function of sex and, therefore, covered by Title VII, was further encouraged to pursue it if she ever got her chance in the federal government to make it a reality. Presciently, these were her words 20 years ago: “But a strict textualist approach might work as well (or even better) for those seeking to achieve broad protection for gay people and transgender people. Under such an approach, the intent of the enacting Congress (or state legislature) is not as important as the words the legislature chose to use.”

It had been obvious to me, as well, as I had been teaching and lobbying for years on the medical basis of transsexualism being rooted in brain sex. Research begun in 1995 had been making that very plain. But few LGBTQ attorneys, with the notable exception of Katie Eyer, believed in the possibility of progressive textualism, even though the Constitution is the product of the Enlightenment.

So after being nominated by President Obama to the Equal Employment Opportunity Commission (EEOC) and confirmed by the Senate, Professor Feldblum looked for the right case and found it in Mia Macy. She then did the same for David Baldwin in the first national gay rights victory, Baldwin v. Foxx, in 2015.

Just looking at these cases it was clear that the federal courts (and some state courts as well) were beginning to respect trans persons enough, including black trans women, beginning in the ‘90s to not only not summarily throw them out of court, but to seriously apply the “because of sex” and sex stereotyping arguments to them. All that at a time when fewer than 8% of Americans (in a 2013 poll) admitted to knowing a trans person; when gay people, far better represented in the media and known in their communities, were routinely failing in federal court. Yet there have been post-Bostock analyses by highly respected civil rights lawyers that turn this history on its head. For example, Shannon Minter, the trans attorney for the National Center for Lesbian Rights (NCLR), said: “We’ve always known that our legal arguments are strong and should be accepted, but the reason it took decades for the courts to accept these arguments was because transgender people were so foreign to the courts.”

This is not the first time. After promoting the trans legal case “because of sex” for years, I tried to get the national LGBTQ, and particularly trans, organizations to recognize our success post-Macy. They would have none of it. The lawyers at HRC, the National LGBT Task Force, and even NCTE, the National Center for Transgender Equality on whose board I sat, refused to acknowledge the breakthroughs. To get the word out I had to publish a pamphlet, with attorney Jillian Weiss and activist Riki Wilchins, which was promoted by Masen Davis and the Transgender Law Center, the only nationally oriented trans group willing to get on board. We were also supported by Tico Almeida and Freedom to Work.

Fortunately, thousands of trans persons got the message, and filed claims with the EEOC. Many won, with most settling out of court because, you know, the law matters. Yet others have lived the past eight years in fear and anxiety because our institutions’ lawyers repeatedly said that we had no protections without a decision of the Supreme Court. I countered that it would take years, or might never happen because we were winning all our cases, and without a split at the appeals court level the Court might not even take up the issue. Fortunately for us today, SCOTUS rolled us into the Circuit split on the gay rights cases (Bostock and Zarda), and we pulled the gay community along to victory. No gays left behind. We had not lost a Circuit Appeals case since 2007, the only one in the 21st century, so I, for one, was not surprised.

People who are committing themselves to activism need to understand the history so as to most effectively pursue their goals in the future. LGBTQ folks need to understand the bureaucratic resistance within their own movements, from the most well-meaning people. It is, indeed, always a long and winding road to liberty and equality.

Dana Beyer is a longtime D.C.-based advocate for transgender equality.

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Literature is my companion

I’ve lived in Russia, Pakistan, India, but books are always home

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(Photo by www.BillionPhotos.com/Bigstock)

People often ask where I am from and I never know how to answer.

The factual answer is straightforward enough: I was born in D.C., spent parts of my childhood in Pakistan and India, lived in Moscow, and later in Jordan before eventually settling in the United States. The emotional answer is much more complicated. Home kept changing. Languages changed. Schools changed. Friends changed.

The only country I never had to leave was literature.

Some children grow up with a single hometown that anchors their memories. I grew up with departure lounges, embassy compounds, cardboard boxes, and the understanding that permanence was a temporary arrangement. Just when I learned the shape of one place, another place arrived. By the time I reached adulthood, I had become adept at beginning again.

Books offered a different bargain. They asked only that I return.

I was too young in Saudi Arabia to remember much beyond fragments and family stories. Pakistan arrived as mountains and long drives. We passed through Abbottabad on our way to ski slopes, the landscape unfolding in a way that felt both ancient and immediate. Even as a child, I found comfort in reading during those journeys. A book transformed transit into destination. The hours belonged to a story rather than to geography.

India deepened that relationship. I remember wandering through bookstores near Khan Market in New Delhi, clutching bags of Lay’s chips and searching for something new to carry home. There was a particular joy in rummaging through shelves without any plan, allowing a title or a sentence to find me first. Outside our house, cows grazed peacefully on the grass, untouchable and entirely unconcerned with human schedules. Street vendors sold samosas that remain among the best food I have ever eaten. The world outside was vibrant, crowded, and overwhelming in the best possible way. Reading provided a parallel world—equally rich, but one I could enter and leave on my own terms.

By the time we moved to Moscow, literature had become less of a pastime and more of a companion.

Winters in Russia bring their own emotional architecture. The days contract. Darkness arrives early. At diplomatic receptions in Spaso House, there were blinis, caviar, Christmas cookies, and annual performances of “The Nutcracker.” Yet beyond the formal rituals of diplomacy stood an extraordinary literary inheritance. To live in Moscow is to feel, even faintly, the presence of writers who treated human suffering and longing with unmatched seriousness.

I found myself drawn to Fyodor Dostoevsky and his insistence that contradiction lies at the center of being human. You can hold faith and doubt simultaneously. You can seek love while fearing intimacy. You can desire freedom and still long for belonging. For someone who already felt different from those around him, those lessons mattered. Literature granted permission to be complicated.

Jordan, perhaps more than anywhere else, taught me that books and places can become intertwined. I think of afternoons in Jabal Amman and evenings near Rainbow Street. I think of traveling through Wadi Rum, floating in the Dead Sea, hiking through Wadi Mujib, and standing in Petra with the humbling awareness that civilizations outlast individual lives. Reading in such places changed the texture of the act itself. The world felt larger, and so did the questions worth asking.

People sometimes imagine literature as an escape from reality. I have never understood it that way.

For me, books did not remove me from the world. They taught me how to inhabit it.

They taught me that loneliness is a universal experience rather than a personal defect. They taught me that identity can be layered and unfinished. They taught me that grief and beauty frequently occupy the same sentence. Most importantly, they taught me that human beings across centuries and continents ask remarkably similar questions: Who am I? What do I owe others? How should I live?

Those questions followed me to college, where literature ceased to be merely a private refuge and became an intellectual vocation. Yet even then, I recognized that my relationship to books differed from that of many peers. I did not simply love reading. I depended upon it. Literature had functioned as continuity in a life defined by movement.

Other people had hometown diners, childhood neighborhoods, and lifelong classmates. I had novels, essays, and poems that accompanied every relocation.

Perhaps that is why I remain skeptical of narrow definitions of belonging. Home is not always a fixed point on a map. Sometimes it is a practice. Sometimes it is a set of stories you carry from one country to another. Sometimes it is a shelf of books that survives every move.

The older I become, the more grateful I am for that inheritance.

Long before I understood my identity, my ambitions, or even the shape of the life I wanted to build, I understood that books offered something enduring. They expected nothing from me except attention. They never demanded reinvention. They remained patient through every transition.

I have left many places behind over the course of my life. Literature, thankfully, never left me.


Isaac Amend is a writer based in the D.C. area. He is a transgender man and was featured in National Geographic’s ‘Gender Revolution’ documentary. He serves on the board of the LGBT Democrats of Virginia. His portfolio is available at isaacamend.com and you can contact him on Instagram at @isaacamend.

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ROSENSTEIN: Vote Susan Stewart for mayor of Rehoboth Beach

She says LGBTQ contributions have shaped town’s character

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Susan Stewart (Photo courtesy of Stewart)

There is really only one clear choice for mayor of Rehoboth Beach, and that is Susan Stewart. She has the experience, knowledge, and clear vision, to successfully lead the city forward. If you want to see in detail what her priorities are, check out her website, www.Stewart4Mayor.com

I have been coming to Rehoboth Beach for more than 40 years and love it. I want to see it continue to thrive, and be the place where people will enjoy living, retiring to, and vacationing. All those factors are important to consider when choosing the next mayor. 

Susan has said, “I will work to preserve the character of Rehoboth Beach while responsibly investing in the infrastructure, financial stability, and community partnerships needed for the future.” She understands it is important to manage growth if you are to maintain a great quality of life, and sense of belonging, for those who live there now, and those who will come in the future. In a conversation I had with her, she said something important to me. She said, “As mayor, I will make sure every resident, regardless of who they are or whom they love, feels welcome and represented at City Hall. Rehoboth Beach has long been a place where the LGBTQ community has found belonging, built businesses, and shaped the character of this city. That is not incidental to what makes Rehoboth special. It is central to it.” She went on to say, “Our city works best when all residents feel heard, respected, and engaged in the decisions that affect their lives. I am committed to bringing people together around shared priorities, and practical solutions.”

When it comes to the city’s financial picture and growth Susan said, “A town’s growth must reflect the community’s values, not be imposed upon it. I am committed to collaborate with the community to preserve the walkable scale, natural beauty, and neighborhood character, that make Rehoboth Beach irreplaceable.” Susan understands investments in the future must be made in a thoughtful way to guarantee the city continues to thrive. This includes maintaining a great quality of life, with clean streets, safe and attractive structures, accessible beaches, and a vibrant commercial district. Every decision made by the mayor, with the Commission, must ensure that those who live here, feel the city truly belongs to them. 

Susan began her career as an attorney, then transitioned into the financial services sector. Her early experience included roles at major banks and brokerage firms, where she developed deep expertise in investment strategy, and client advising. In 1996, she founded her own financial advisory firm where she advised high net worth individuals and families, managing large-cap equity mandates for several state retirement systems and a Fortune 500 company. After successfully leading the firm for 15 years, she closed it in 2011 and returned to the brokerage industry. Today, she is a financial adviser, and senior vice president with The StewartGroup, RBC Wealth Management. Her daughter, Taylor Stewart, is a business partner in their practice. Stewart works remotely from her home in Rehoboth Beach. She holds a bachelor’s degree from Ursinus College; and a Juris Doctor from The Dickinson School of Law, Pennsylvania State University. She is deeply committed to public service, and currently serves on the City of Rehoboth Beach Commission, and has previously served on the Planning Commission, as well as the Mixed-Use and Stormwater Utility Task Forces. She is also a member of the board of trustees for Ursinus College.

With her strong financial background people can be assured Susan will ensure Rehoboth Beach maintains its strong fiscal position. Contrary to what one of the commissioners who is also running for mayor has said, Rehoboth is in strong fiscal shape. It is projected the city will end the year with a surplus of about $1.5 million, and projections are for surpluses through 2031. With her financial background, Susan has the ability to manage taxpayer resources carefully, and has committed to maintaining healthy reserves for the future. She understands any investments must deliver lasting value for residents. 

Susan hopes to engage with residents on important questions like deciding which infrastructure projects should be the top priority; how the city should use reserves that exceed its own requirements; what investments will deliver the most value to residents; and how to maintain long-term financial stability while meeting community needs.  I believe as an experienced professional, Susan truly believes these are the real policy conversations that should be had, and she will have them. 

Since I have heard people discussing another candidate for mayor, Commissioner Suzanne Goode, it is important to recognize she clearly doesn’t represent the people, or values, we have come to love about Rehoboth Beach. I last wrote about her when she tried to have her husband elected to join her on the Commission. She thought that was an appropriate thing to do. If she is elected mayor, will she try to have her husband appointed to fill her seat on the Commission? Rehoboth Beach is better than that. When I last wrote about her, I said she appears to represent MAGA Republicans. Apparently, she cleaned up her Facebook page but it had included attacks on Obamacare, President Joe Biden, Hillary Clinton, and support for Ron DeSantis. That is not who we want for mayor of Rehoboth Beach. 

On Saturday, Aug. 8, I urge you to cast your ballot for Susan Stewart for mayor. She will make us all proud. 


Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.

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Pro-trans court ruling does little for Naval healthcare worker

Trump administration should support accomplished service members

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(Photo by perhapzz/Bigstock)

Following the start of the Iran war, many Americans were worried for the first time in decades about a potential draft. When asked about the possibility, White House Press Secretary Karoline Leavitt noted that it was not part of the current plans but that, “The president wisely keeps his options on the table.”

While the Trump administration did not rule out the option to conscript unwilling young citizens, it had no problem alienating willing service members, removing high-ranking female or African-American officers, and banning transgender people from serving in the military, stating that “a history of gender dysphoria is incompatible with the high physical, surgical, and mental health standards required for military service.”

The decision to discharge thousands of service members who have already proven their dedication and efficacy in serving their country, simply because of their gender identity, seems counterintuitive for a nation that has just struggled through a war, a regression toward a long past of discrimination in our military, and a ruling that has been questioned in judicial systems.

On June 1, the U.S. Court of Appeals for the D.C. circuit issued a decision blocking the government from discharging 28 transgender plaintiffs from the military (Talbott vs. United States), calling the policy “animus” toward a politically unpopular group. News outlets reported it as a win for LGBTQ rights, but that hardly seems to matter for the close to 15,000 other transgender military service members who have either already been separated or constantly fear that they will soon be removed.

I interviewed a recently separated transgender Naval healthcare worker for this editorial, who used the initial S. for anonymity and who told me that hearing the news of the Talbott court decision was more bitter than sweet, remarking, “While the recent ruling in favor of trans service members offers fleeting hope, Department of Defense Secretary Pete Hegseth has already announced the decision to appeal to the Supreme Court, where we will likely expect the same outcome as before. Unfortunately, any definitive outcome in favor of trans service members will likely come long after the damage has been done.”

Studies by the RAND Corporation have found that transgender military service showed no significant impact on operational readiness, and according to the BBC, the Department of Defense spends eight to 10 times more on erectile dysfunction drugs than on gender-affirming care.

S. served a critical role in the Navy, as active-duty service members are far more likely to experience mental health challenges than the civilian population, and it doesn’t sound like his gender identity was a problem for any of his coworkers: “Everyone judged me by my ability, not my identity; most of them didn’t know that I was transgender until the separation process forced my public acknowledgement.”

Dedicating years of his life to serving his country, not only did S. lose that dream, but it also impacted his entire caseload of clients. “One by one, I had to meet with them and explain that I was abruptly leaving the clinic and ultimately separating from military service. It was death by a thousand cuts—having to tell people back-to-back, session after session, that I could no longer work with them. Many of them were in the midst of their own crises while I was quietly navigating mine. It was heartbreaking.”

He also spent 11 months in a state of limbo, waiting to be officially separated – having secured a job at another federal agency and beginning to treat new patients, the Department of Defense rescinded its approval, citing that you cannot work at two federal agencies at once, and effectively sidelined a critical health care worker until they could formally discharge S. from the Navy.

The irony of citing mental health standards to remove a Naval healthcare worker in good standing, at a time when many personnel are in dire need of clinical care is notable. To maximize operational readiness, the Trump administration should not turn its back on accomplished service members who hold critical roles in the military.


Tyler Kania is an independent journalist and 2025 IAN Book of the Year finalist.

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