A Feminist Defense of Transgender Sex Equality Rights

Abstract

An emerging direction in sex equality law—one I have taught and sought for decades for both sexual orientation and transgender rights—is that discrimination against trans people is discrimination on the basis of sex, that is gender, the social meaning of sex. The Bostock decision recently recognized the simplest version of the argument. This recognition does not, contrary to allegations of anti-trans self-identified feminists, endanger women or feminism, including what some in this group call “women’s sex-based rights.” To begin with, women—in the United States anyway—do not have “sex-based rights” in the affirmative sense some in this group seem to think. We do have (precious few) negative rights to be free from discrimination on the basis of sex— which has almost always meant gender, actually—and so do men. If this invented term means a right to single-sex education for women, as against co-education, it has been on the thinnest possible legal ice for decades under the hegemony of gender neutrality. It may be that women’s schools continue to exist largely because no case challenging them has reached the Supreme Court in a very long time. I support women’s colleges and am glad to see them admitting anyone who identifies as a woman and graduating anyone they admit (some girls become boys these days). But the weight of sex discrimination law, built to be gender neutral since Ruth Bader Ginsburg’s early cases, leans strongly against the constitutionality of women’s schools (and HBCUs under colorblindness), public or private.