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
Miss Major Griffin-Gracy paved the way for today’s transgender rights revolution
The annual Transgender Day of Remembrance is Nov. 20
By CHASTITY BOWICK | I’ll never forget the moment Miss Major Griffin-Gracy looked me in the eye and said, “Baby, you can’t wait for permission to exist. You take up space because you deserve to be here.” It was 2016, and I had just finished interviewing her at Northeastern University. What began as a professional encounter became something far deeper. She welcomed me into her chosen family with the fierce love that defined her life’s work.
That advice didn’t just change my perspective; it changed my life. Miss Major had an extraordinary ability to see potential in people before they saw it themselves. She offered guidance that gave permission to dream bigger, fight harder, and live unapologetically in a world that often told transgender people we didn’t belong.
Today, as we reflect on her legacy, we must remember that Miss Major didn’t simply join the transgender rights movement. She helped create it. Her activism laid the foundation for every victory we celebrate today and continues to shape how we fight for justice, dignity, and equality.
To understand her impact, we return to June 28, 1969, when a 27-year-old Black transgender woman stood her ground at the Stonewall Inn. While history often overlooks the transgender women of color at the heart of that uprising, Miss Major was there, refusing to back down when police raided the bar that night.
After Stonewall, she dedicated her life to building what became the infrastructure of liberation. When she fought that night, she wasn’t only resisting police brutality, she was declaring that transgender people, especially Black trans women, would no longer be invisible. Her message was simple: We exist. We matter. We’re not going anywhere.
Miss Major coupled courage with care. She knew that real change required systems of support. While many focused on changing laws, she focused on changing lives. Her work with incarcerated transgender women stands as one of her most powerful legacies. She visited prisons, wrote letters, sent commissary money, and made sure these women knew they weren’t forgotten. It wasn’t glamorous work, but it was transformative.
She built a model of organizing rooted in love and mutual aid communities supporting each other while demanding structural change. That approach became the blueprint for today’s transgender rights organizations, especially those centering Black trans women.
In a time when invisibility was often the safest choice, Miss Major chose visibility. She shared her story again and again, using her own life as proof of transgender resilience and humanity. Her openness created connection and understanding. People who heard her speak couldn’t ignore the truth of our existence or the strength it takes to live authentically.
Miss Major also believed leadership meant creating space for others. After our first meeting, she connected me with other activists, shared resources, and reminded me that my voice mattered. Talk to any transgender activist who came up in the last two decades, and you’ll hear a similar story. She saw something in others and nurtured it until it bloomed.
Her fingerprints are everywhere in today’s movement: in grassroots organizing, in the centering of the most marginalized voices, and in the insistence that liberation must be rooted in love and community. The victories we see (from healthcare access to broader public recognition) are built on the foundation she laid.
In one of our last conversations, Miss Major told me, “This movement isn’t about me. It’s about all of us. And it’s about the ones who come after us.” Her life reminds us that movements are sustained by love as much as protest, by the daily act of showing up for one another as much as by the marches and rallies.
As anti-trans violence rises and our rights face relentless attacks, we need Miss Major’s example more than ever. We need her fierce love, her unwavering defiance, and her belief that we deserve to take up space. Her legacy reminds us that the fight for our lives is also the fight for our joy.
This Transgender Day of Remembrance, we honor those we’ve lost and celebrate those who dared to live fully, people like Miss Major, who taught us that remembrance must come with responsibility. Her life calls us to protect one another, to build systems of care, and to keep fighting for a world where every trans person can live safely and proudly.
The mother of our movement may be gone, but the family she built lives on. The best way to honor her is to continue her work: to build, to protect, to love without limits, and to remind every trans person that they belong, they matter, and they are loved.
Chastity Bowick is an award-winning activist, civil rights leader, and transgender health advocate who has dedicated her career to empowering transgender and gender-nonconforming communities. She led the Transgender Emergency Fund of Massachusetts for seven years, opening New England’s first trans transitional home, and now heads Chastity’s Consulting & Talent Group, LLC. In 2025, she became Interim Executive Director of the Marsha P. Johnson Institute, continuing her mission to advance equity, safety, and opportunity for trans people. Her leadership has earned her numerous honors recognizing her impact on social justice and community care.
Opinions
Democratic Socialism won’t win the whole country
We must work toward a blowout on Nov. 3, 2026
It was a great win for Zohran Mamdani, and his voters, in New York City. His message of hope and change clearly resonated with younger generations, and that is exciting. But while Democratic Socialism, and Eugene Debs, may be the future of New York City, they won’t win the country. Mamdani is a young, smart, charismatic, politician. He is a great speaker, and in his campaign made many promises. Keeping those promises won’t be easy, but whether he can keep them will be what he is judged on. I wish him much success as what he envisions is important. But as Democrats, we need to understand, his brand is not going to be what wins it for Democrats in 2026. It will not win the swing Districts we need. We know that by looking at history.
I am a proud New Yorker by birth. When traveling the nation as a teenager with the Boy Scouts, going by bus across the country to the 25th Jamboree in Colorado Springs, I understood we in New York were the different ones, not the rest of the nation. I understood at an early age how important it is to respect those differences and they still exist today. If we are to move the nation forward, we have to do it with respect, and together.
I looked at how Mikie Sherrill won the governorship in New Jersey, and Abigail Spanberger won in Virginia. Their strong messages, more in line with the majority of voters in the nation who see themselves as moderates, are likely to resonate with Democratic voters across the swing congressional districts Democrats need to win in 2026, if they are to take back the House. Based on exit polling their messages also invigorated many young voters. We will need everyone to take back Congress and doing so is a must if we are to save our country from the felon in the White House.
There are countless reasons to stop Trump. He wants to be a king, and has said so. He acts like a despot declaring war on foreign countries without congressional consent, and even declaring war on American cities. He doesn’t understand the United States is a nation of immigrants and without them we are in trouble. I guess the only immigrants he found of value were two of his wives, and he even screwed around on them. He uses ICE as if it were his personal Gestapo. He sends National Guard troops across the nation and into D.C. where some picked up trash in the parks and spread mulch. Not what they signed up for, and a total waste of taxpayer’s money. He threatens the world’s nations, allies, and foes alike, with tariffs that end up being a heavy tax on the American taxpayer. He pretends to negotiate deals, like one with China, not even getting us back to the positive relationship we had with them when Biden was president. Trump screws up everything he touches. He plays footsie with Putin. He refuses to actively support the brave people of Ukraine whose war against Russia is in essence, a proxy war with the West. He gives tax breaks to the rich, and is willing to close the government instead of ensuring everyone has affordable healthcare. He threatens the poor with starvation, and screws with the nation’s healthcare, destroying the CDC, and the National Institutes of Health (NIH), the world’s premier medical research institute. He threatens law firms, universities, and the media, holding them hostage for money. He uses the Department of Justice as his personal law firm to get revenge on anyone he thinks did him wrong. He fires thousands of government workers, and when his incompetent appointments screw up, has to rehire many. He is a grifter, exchanging favors for money for himself, with countries around the world. A plane from Qatar, and billions for his crypto company.
What Americans are seeing as the result of his incompetence, are prices for food, rent, and education, all going up. Farmers are suffering. All this is what Democrats will campaign on across the nation.
But they must also campaign on what they will do to make things better. They must talk to their constituents in each District, and determine the focus of their campaigns. What issues to campaign on. Those campaigns could look different in each District. That is how Democrats will win. That is how Democrats won last Tuesday, and that great start will lead to a huge Blue Blowout, on Tuesday, Nov. 3, 2026.
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.
Voters handed Democrats a sweeping victory across the country in the Nov. 4 elections. Donald Trump’s Republicans paid dearly for their inability to restrain or conceal their recklessness and cruelty.
In response to being roundly repudiated at the polls, Trump boasted, lied, made insults and threats. Mind you, this is a man who confuses dementia screening with an IQ test. And he once proposed nuking hurricanes.
Trump’s howlers, including the claim that every election he loses is rigged, are persuading fewer and fewer people.
You would never know, on this bright autumn morning, that a pitched battle is underway for the soul of America. As I sip my coffee in the McDonald’s, a little girl walking by with her daddy climbs into the chair at the next table. She is holding a TV remote control for some reason. I ask her not to point it at me because I don’t want to be switched off.
To be honest, there are people I wouldn’t mind switching off, at least from my newsfeed. For example, I saw this headline concerning an obnoxious congresswoman: “Nancy Mace escalates fallout from foul-mouthed airport meltdown with legal threats after criticism from fellow Republicans.”
Is it possible that Rep. Mace, who is running for governor of South Carolina and has been calling trans people crazy, is so starved of attention that she has to scream at officers in airports and threaten lawsuits? I stress that I’m just a humble commentator and do not mean to provoke her.
I can’t help recalling that the phrase “Trump Derangement Syndrome” arose not as a reference to Trump’s own mental health issues but as an effort to deflect such concerns onto his critics. Lately, however, we who wish to be rid of the Worst President Ever have gone from being mad to being domestic terrorists in the eyes of Trump diehards. We are also called insurrectionists, despite never having incited a riot at the U.S. Capitol, because the leading insurrectionist—who deems himself above the law—is considering invoking the Insurrection Act to consolidate dictatorial power.
Are you keeping up with all this? I know it sounds crazy. You never know what jarring images you’ll stumble upon. On election night I switched to CNN, saw former Chicago mayor Rahm Emanuel, and immediately reached for my remote control like that little girl in the McDonald’s. And Rahm is a Democrat!
New York City Mayor-elect Zohran Mamdani is an immigrant who grew up in New York. I am a native Washingtonian who grew up in Maryland’s 8th congressional district, currently represented by constitutional scholar Jamie Raskin. Raskin has happily dubbed Mamdani an FDR Democrat.
You might think comparing a gifted young politician to Franklin Delano Roosevelt would not scandalize anyone at this point; but you would be wrong. Lots of Republicans still decry FDR as a socialist. These are the same people set on robbing millions of their healthcare and nutritional assistance.
Trump, who hosted a Great Gatsby-themed party at Mar-a-Lago hours before millions of Americans lost their SNAP benefits, touted the Roaring Twenties as a high point in America’s past. I don’t want to burst his bubble, so please don’t tell him that the 1920s ended in a stock market crash that ushered in the Great Depression. God forbid his tariffs lead to another crash. He would likely blame it on Mamdani, rebrand it a communist Islamic jihad, and deport it to Eswatini.
Democrats like me support capitalism, but with guardrails. By contrast, the oligarchs—epitomized by Elon Musk with his recently approved $1 trillion pay package—love to blame others for the harm they cause, while making off with the moolah. Do not fall for it.
I am rooting for Mamdani, who wants working people to be able to afford to live in New York. He includes trans people in his vision. His victory speech was a far cry from the Islamophobic caricature painted by his detractors, who range from right-wing pundits to Andrew Cuomo.
Based on the smears, you might expect the mayor-elect to rush to Washington to demolish part of the White House, had the president not beaten him to it. Yet in the wake of Mamdani’s historic victory, billionaires who fought tooth and nail to defeat him bent the knee and pledged their help.
Mamdani is not the model for all Democrats; he reflects but one part of our diverse coalition. The midterm elections are a year away. All our voices and votes will be needed to defeat the authoritarians.
Copyright © 2025 by Richard J. Rosendall. All rights reserved.
Richard Rosendall is a writer and activist who can be reached at [email protected].
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