Opinions
‘Because of sex’ approach to protecting trans people
Many analyses of Bostock decision missed the real history
“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.
Commentary
To West Africa with love
Thoughts on Ghanaian tradition, queerness, and Western imperialism
You may know by now that Ghana’s parliament has just passed one of the harshest laws against its LGBTQ citizens in West Africa. Many advocates, activists, LGBTQ people, and allies are still trying to process why and how this happened.
During this announcement a person I’m closely tied to was in Juaben, Ghana.
They were celebrating the life and passing of their grandmother, who happens to be a Queen Mother (Juabenhemaa) of the Asante Kingdom in Ghana. It was an elaborate two week traditional ceremony with both private and public events and was attended by thousands as well as the who’s who in Ghana including President Nana Akufo Addo himself.
As a history major, a cultural enthusiast and Afro-futurist, I was excited to have first hand accounts with photos and videos of all the ceremonies and to see beautiful Ghanaian royalty and people in their decorated clothes, dress, dance, and tradition. While at the same time supporting my loved one virtually.
About four days into the two week ceremony, my person in Ghana texted me about a male dancer wearing traditional women’s clothes, wearing makeup with a stuffed buttocks. They found it intriguing and was eager to share with me. In this traditional space, it was normalized and the cultural dancer continued to even dance with other men at the ceremony.
They reported to me that some of the young anti-LGBTQ Ghanian Americans at the ceremony were disgusted and confused. One remarked ‘What? Is this ‘Drag Race now?’ as the colorfully dressed person continued to skillfully dance their traditional dance in honor of the Asante Queen Mother.
Four days later the anti-LGBTQ law passed through the parliament of Ghana, devastating LGBTQ Ghanians, advocates, allies, and diaspora.
The bill now awaits the president’s signature to be enacted.
As I read through the 36-page long document called Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill of 2021, the basis document for this legislation, it includes repetitive emphasis of resistance to foreign imposition and the maintenance of Ghanaian values, culture, sovereignty, and independence and rejection of homosexuality. The document is a combination of the efforts of various groups including Christian organizations, Muslim organizations, family rights organizations, and the traditional chiefs of Ghana.
I found it interesting that there was but one paragraph that mentioned the importance of protecting the lives of LGBTQ people. Can you guess which one group (Christian organizations, Muslim organizations, Family rights organizations and the traditional chiefs of Ghana) was solely appealing to protect the lives of LGBTQ people in the bill?
The National House of Chiefs, the group most steeped in Ghanaian historical and cultural tradition, made some attempt within the document to shield the lives of LGBTQ people from harm.
Time and time again, advocates have purported that it is indeed the hatred of queer people that is an imposition. Yet they are Christian and family value organizations funded by the right wing organizations that claim to protect local culture and values but instead create divisions that threaten the livelihoods of their Ghanaian queer families.
It begs the question, What is so western about LGBTQ people?
If we are being completely honest, the language, culture and framework is certainly western.
The expression of self was never demonized in many now erased cultures across the world but the idea and framework of queerness today is.
The LGBTQ movement is largely a western movement and culture. From the rainbow flag to its terminology. Today LGBTQ/queer is the language we use universally to describe people whose self and sexual expression is not mainstream.
During colonization, many cultural indigenous traditions were lost including the language we used to identify our family and communities. It was then replaced with Christianity used as a tool to control and restrict — as it continues to do so today.
Indigenous Native Americans are fortunate to have retained their language and some of their culture. Their language of two-spirit makes room culturally for those Indigenous people we would call queer today.
There are countless examples of cultures within West African traditions and culture that have celebrated and have space and language for their “two-spirit” people as described by the Native Americans or their “Dagara” people as described by people from the Ghanaian neighboring country Burkina Faso.
That said, as a result of our erased cultures today, LGBTQ/queer is the language and culture we have globally adopted – obviously to the ire of those who don’t quite understand their own culture.
Regardless of language, culture or foreign imposition, there is no excuse for the hatred, exclusion, and persecution of any group of people — period.
From Uganda in East Africa, Ghana, West Africa to St. Vincent in the Eastern Caribbean the sentiment remains the same where there seems to be a confusion around cultural identity and the clutching onto an idea of sovereignty in efforts to continue to resist years of colonial oppression, imposition, and trauma.
We haven’t even begun to discuss how Christianity, another colonial tool, has culturally divided us and has our societal progress in a chokehold.
However, as a futurist, it is not helpful to remain in a place of blame, anger and self pity — it gets us nowhere. This is the hand that we have been dealt and we must work in various ways to build up our businesses and to nurture and grow families, communities, and our people.
And so I offer this piece to the brave advocates across various post colonial landscapes — draw close to the cultures and identities from whence you came. Activists like Lady Phyll and Alex Kofi Donor have remained entrenched within their cultural tradition signifying that being queer identifying people and being African in identity and culture aren’t mutually exclusive.
We ought to be bold in addressing and working with external groups — the extremely tough and dangerous part of advocacy — entering churches, parliaments, universities, and being visible and contributing citizens not only within local queer communities but outside of the silos and enclaves of our safe spaces. That visibility puts a human face and personality to our cause. We must be our own politicians. Building real relationships with folks who we may not always agree with but who we may see eye to eye with on other issues. Start showing up for other marginalized groups besides our own.
And perhaps I’m blinded by the context of the advocacy done in little Barbados, perhaps it’s a safer place these days, an easier place to exercise this level of visibility … maybe.
What I do know is that we need to employ thoughtful strategy to our advocacy efforts because it was the strategy of the colonial powers that got us in this situation in the first place.
And it will be our understanding of our own people and the application of strategic thinking that will get us out.
Opinions
10 reminders of why we must vote for Harris
A strong LGBTQ turnout could swing election in key states
There are a million reasons to vote for Kamala Harris over Donald Trump but here are 10 of the best. If you’re not feeling the burn about casting your ballot, please remember just how close our last two elections were and how dire the 2016 consequences for the country. Indeed, a strong turnout by LGBTQ and allied voters could prove decisive in some key states.
So let’s review 10 reasons why it’s not only important — but essential — that all LGBTQ and allied voters show up to vote for Kamala Harris.
#10 The opportunity to make history. For the second time in 16 years, America has the exciting chance to make a historic choice for the White House. Kamala Harris would be the first woman and first woman of color to serve as president if elected. It’s not the #1 reason to vote for her but it’s a pretty damn good ancillary benefit.
#9 The chance to send Trump into oblivion. After eight long years of commanding endless mainstream media attention for his ever-expanding list of racist, sexist, xenophobic, and transphobic attacks, we have the chance to finally dispatch ourselves of the toxic Trump. He’s insulted everyone from Gold Star families and the disabled to Meryl Streep and Rosie O’Donnell. That there’s anyone left willing to vote for him is mindboggling. (I’m talking to you Lindsey Graham and Ted Cruz.) Imagine how much our collective blood pressure will ease without having to endure wall-to-wall coverage of his every social media post. “Morning Joe” will be hard pressed to continue without Trump to mock but it’s a sacrifice I’m willing to make.
#8 To preserve trans military service. In his first term, Trump tweeted that trans people were barred from serving their country “in any capacity.” It was a cruel stunt that damaged careers and led to a direct uptick in hate crimes targeting the trans community. There’s no doubt he would reinstate that ban on day one. It’s ironic that Trump goes after brave members of the military given his own “bone spur” excuse to avoid Vietnam. None of his kids has served either, of course. Trump has referred to dead service members as “losers” and “suckers.” That comment alone — corroborated by his chief of staff John Kelly — should be disqualifying.
#7 To continue growing the economy. I’ve never understood all the naysayers who complain about the U.S. economy, which is envied the world over. No other country emerged from COVID as strong as we did, defying all expert predictions of recession — record stock market numbers, record employment, rapidly declining inflation and interest rates. The Democrats have never been good at messaging and it’s frustrating that they allow Trump to talk down our economy at every rally without a coherent response. The truth is our economy is strong and Harris’s plans to tax the wealthiest and invest in small businesses has been endorsed by leading economists over Trump’s ridiculous and doomed idea of starting a trade war with China over tariffs. The LGBTQ community is disproportionally entrepreneurial, so Harris’s tax benefits for small business owners will boost us tremendously.
#6 To aid Ukraine. The Blade has traveled to Poland and other Eastern European countries to cover the plight of LGBTQ migrants fleeing Ukraine after Russia’s invasion. Their stories are heartbreaking. We have an obligation to stand by Ukraine along with Western Europe to stop the murderous Putin and preserve democracy. Trump will cave to Putin’s demands that he be allowed to annex large swaths of Ukrainian territory, emboldening the Russian dictator and encouraging further incursions into other neighboring countries.
#5 To stop Project 2025 in its tracks. We have documented the anti-LGBTQ horrors that await us if Project 2025 becomes the governing blueprint for a second Trump administration. The assaults are too many to recap here so just remember these lines from the document: “The next conservative President must make the institutions of American civil society hard targets for woke culture warriors. This starts with deleting the terms sexual orientation and gender identity, diversity, equity and inclusion, gender, gender equality, gender awareness, gender-sensitive….out of every federal rule, agency regulation, contracts, grant regulation and piece of legislation that exists.”
#4 To protect a woman’s right to control her body. Predictably, women are now dying as a result of Trump’s abortion bans, as reported by ProPublica. And it will only get worse if Trump is re-elected and his congressional allies push through a national abortion ban as they’ve promised to do. If you think this isn’t about you, consider that Roe v. Wade provided the foundation for the Obergefell marriage ruling, which Justices Alito and Thomas have already said should be revisited.
#3 Supreme Court. Speaking of the high court, there is credible speculation that if Trump wins, Alito and Thomas will be pressured to retire, giving Trump an unprecedented five picks and a MAGA majority. That’s game over for a generation and the end of Obergefell marriage equality, Lawrence privacy rights, and more.
#2 To preserve and advance LGBTQ equality. The last 20 years have brought unimaginable progress for LGBTQ rights, from marriage equality to the end of “Don’t Ask, Don’t Tell” to Bostock’s conferring employment protections to most of us, and so much more. There’s more to do, especially given the anti-LGBTQ state laws passed around the country giving rise to book bans, bathroom bans, and dangerous anti-trans healthcare restrictions. A Trump presidency jeopardizes all of our recent gains and puts us back on defense. A Harris presidency ensures we continue to move ahead and gives us a chance to undo some of the recent setbacks.
#1 To defend democracy. Trump and J.D. Vance whine a lot about criticism that they are undermining democracy, claiming these accusations are to blame for two recent assassination attempts. For someone who trafficks in violent rhetoric all the time, it’s a brazen and hypocritical claim. There’s an old saying about living by the sword that Trump should Google. But it’s not hyperbole to suggest that a Trump presidency would represent the end of democracy. He’s already incited an insurrection after badly losing the 2020 election. Trump and Project 2025 promise to gut the federal government, lock up critics and journalists, allow Putin to do “whatever the hell he wants,” privatize critical government functions, ban books and DEI, and even to ban pornography. The list goes on. Yes, it’s the end of American democracy if he wins.
But this election isn’t just about rejecting Trump. It’s also about embracing the promise of a Harris administration, which would bolster the economy, respect human rights, fight for equality, combat climate change, fix the border, advance gun reform, and promote many other common sense, centrist policies supported by a majority of Americans.
There you have it, a succinct reminder of what’s at stake on Nov. 5. So vote for Kamala Harris and Tim Walz and send a message that character still matters, that America remains a trusted defender of human rights, and that we won’t let a dangerous convicted felon anywhere near the Oval Office again.
Kevin Naff is editor of the Washington Blade. Reach him at [email protected].
Commentary
On National Coming Out Day: No more silent compromises
Rejecting half-truths, embracing the whole me, and redefining my worth
Though I’ve never lived “in the closet” over the years, I realized I hadn’t fully stepped out of it in every aspect of life. While I embraced being out, certain moments hindered my personal and professional growth.
Have you ever let someone assume something about your life, like having a wife or girlfriend, because it was easier than correcting them? Perhaps you thought, “I’m not in the closet, so it doesn’t matter.” But looking back, did it matter?
This question lingered in my mind for far too long. We must ask whether our actions reflect who we are or if we’re choosing a more convenient version of ourselves. When someone asked, “Is your girlfriend coming to happy hour?” I wasn’t offended, but I wasn’t being entirely authentic, either.
As a gay man, I found it flattering when people assumed I was straight. Was I accepting it as validation of my masculinity? Perhaps. But over time, I realized that allowing these assumptions to persist wasn’t as harmless as I initially believed.
I’ve been fortunate never to experience the closet. The unwavering support from my family, friends, and colleagues has empowered me to live authentically.
Having a family was, and still is, my guiding light. But by my late 20s, that vision began to fade. By my mid 30s, I saw family life, as a gay man, was a possibility, but I buried myself in building a company. I convinced myself that balancing family and business was unattainable since finding someone with shared values seemed impossible. But was it?
As an entrepreneur, I’ve experienced the highs and lows of building something from scratch, always embracing challenges. It’s easy when you love what you do. Like building a business, personal growth is shaped by what you choose to invest in and what you attract into your life. Despite my successes, something still felt misaligned. What was I doing wrong?
I remember moments like vendors taking us to after-hours bars or strip clubs. I recall one instance at a national expo when a vendor took us to a female strip club. I’ve never enjoyed strip clubs, gay or straight; I’d instead host a dinner party. Early into the night, someone arranged a lap dance for me, and I jokingly asked if she could switch places with the security guy. We both laughed, but here’s the issue: I never told them why I got up and left, only her. At that moment, did I sell myself short? Would it affect our partnership? I wasn’t in the closet but wasn’t entirely out either.
Another moment came in my 30s when I was learning how to navigate dating. A friend suggested I downplay my career to avoid intimidating potential partners. I agreed initially but eventually asked myself: Why should I downplay my accomplishments to make others comfortable? By minimizing my worth, I wasn’t just being inauthentic; I was undervaluing myself and the hard work I put into it. What was I trying to attract into my life?
As my journey continued, I became increasingly aware of what I was inviting into my life. My personal and professional lives were out of alignment. When I opened an office in India, I came out to the local director before signing business documents. Why? Friends and colleagues struggle because their business partners don’t know their authentic selves, and I refused to let this happen. More importantly, I owed being genuine to myself.
Many of us create barriers between our personal and professional lives. While change can be difficult, I needed to align them. We believe we’re not lying because we’re “not in the closet.” But by not fully expressing our authentic selves, we hold ourselves back. For me, dismantling those barriers allowed me to transform what I was attracting into my life, personally and professionally.
Had I not become self-aware, I’d still be stuck in a cycle of inauthenticity, missing out on my full potential. Without changing my mindset, I would have continued letting others’ assumptions define me and limit my growth. I only began breaking free from that cycle by fully embracing my true self.
Even though I’ve never lived in the closet, I still fear what being this open might bring. But that’s precisely why I need to do it. My personal and professional allies have shown unwavering support, standing by me through everything. To those who have supported me on this journey, thank you, it’s now my turn to support others.
Authenticity isn’t just a choice; it’s essential for a fulfilled life. You must ask, you must act, and yes, you will fail and learn along the way, but that’s OK. Every time you act, you move closer to your authentic self. Embrace vulnerability and the discomfort of feeling exposed, it’s then you will begin to reclaim your strength.
To the person on the partner track who’s afraid to bring their partner to a company retreat: bring them! To the young adult worried about being kicked out of the house: seek local support; someone will help you! To the person fearful of losing their job because of who they are: quit! To the person who wants a family, look around; someone shares those values! If someone offers to set you up with a girl or guy, ask if they have a brother or sister, and you might get a date! To those still searching for the right partner, ditch the apps and be present!
I kept my personal life “private” for years because I thought, “I’m not in the closet.” I’m not referring to social media; this is about deep-rooted beliefs that live rent-free in our minds, filtering our responses and decisions. While writing this piece, I mistakenly typed, “I’m not out,” perhaps it wasn’t a mistake; it was a sign. I am grateful those filters expired long ago and are now evicted for living rent-free.
We live in a world where mental health is still stigmatized. Small acts of inauthenticity can cause anxiety that spills into our professional lives. It makes us seem “off” and can lead to missed opportunities. Worst of all, you may feel trapped and remain silent.
It’s time to stop allowing these things to hold us back. We must discuss mental health, authenticity, and their impact on our lives. The journey isn’t about becoming someone new; it’s about shedding what doesn’t define you so you can fully embrace who you’ve always been.
As I continue my journey, I will do so boldly, out loud, and unapologetically. Note to readers: If you’re struggling, want to discuss this topic further, or just need a virtual coffee chat, feel free to reach out via Instagram, @gregorybarretta.
Gregory Barretta is a serial entrepreneur overseeing several companies, committed to mentoring, leading, and empowering others to grow.
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