Justices of the US Supreme Court pose for their official photo at the Supreme Court in Washington, DC on November 30, 2018. - Seated from left: Associate Justices Stephen Breyer, Clarence Thomas, Chief Justice John Roberts, Ruth Bader Ginsburg and Samuel Alito. Standing from left: Associate Justices Neil Gorsuch, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh (Photo by MANDEL NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)
J.K. Rowling, Neil Gorsuch, and Biological Essentialism
The day the Supreme Court ruled on R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, a verdict which determined that transgender people are protected from employment discrimination under Title VII of the Civil Rights Act of 1964, I saw several viral tweets expressing a notable takeaway:
Neil Gorsuch is the famously conservative Associate Justice, appointed by the famously conservative President Donald Trump to succeed the famously conservative Antonin Scalia, who delivered the court’s opinion on this case. Here, his views on trans rights are being favorably compared to those of Harry Potter author J.K. Rowling, a woman who took it upon herself during a global pandemic and a time in which there are international protests against America’s rampant racist police brutality to release what can only be described as a 3,500-word-long transphobic manifesto. I understand the comparison. I can even sympathize with it a little. The wounds from Rowling’s turn to open transphobia were and are still fresh. Much fresher and deeper were those caused by the decision of the Department of Health and Human Services to remove Obama-era nondiscrimination protections regarding healthcare and health insurance for LGBTQ people. This decision came only three days before the Supreme Court ruling, and so, to myself and many others I know, the ruling seemed like a miracle. A miracle personally written and recorded by Neil Gorsuch.
My problem with these tweets, however, is that Gorsuch and Rowling have the exact same opinions on the rights and existences of transgender people. They may have deployed these opinions differently, but the opinions themselves are the same. This fact can be clearly seen when Gorsuch gives the rationale for his opinion that discrimination against a trans employee is inherently “discriminating against that individual based on sex”:
[T]ake an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.
The words “identify” and “as” are doing a lot of work in these sentences. Work that is mostly spurious and illusory. This passage is nearly identical to the preceding section in which Gorsuch details why homophobic discrimination is also discrimination based on sex. In both sections, Gorsuch uses a hypothetical in which an employer penalizes a male employee for actions they would tolerate from a female employee. In the passage regarding homosexuality, the action is attraction to men. Here, the action is being a woman. In this way we can see that the many variations of “identify as” are employed here for aesthetic palatability, but are functionally meaningless. The only “identifying” that matters with regards to Title VII and transgender employees is the identifying that happens “at birth.” In other words, in the opinion of the court a transgender person is always and above all a person of the sex they were assigned at birth. No amount of discovery and identifying would make a trans woman anything but fundamentally male. And, as far as Title VII is concerned, there is no material distinction between discrimination against a transgender woman and a feminine man.
This sort of thinking would be right at home in Rowling’s manifesto. In fact, is the backbone of her entire ideology. All through Rowling’s essay, she gestures to and emphasizes the reality of biological sex. It is because the people she terms “trans activists” question this reality that they earn her scorn. When she names women she admires, the virulent transphobes Maya Forstarter and Magdalen Berns for instance, her admiration stems from their “[belief] in the importance of biological sex.” She even goes so far as to say that trans-exclusionary radical feminists (TERFs for short) “aren’t even trans-exclusionary – they include trans men in their feminism, because they were born women.” What a strange form of inclusion. One that thinks nothing of the people it allegedly includes, and instead forces them into an ideology that hates and misgenders them. It feels more like a kidnapping.
In essence, Gorsuch’s opinion and Rowling’s manifesto are compatible and even inseparable explorations of conservative conceptions of biological sex. They are both trying to determine the implications of an idea articulated by Rowling in a tweet she wrote supporting Maya Forstarter: that “sex is real.” I am not here to debate the validity of the sex binary, nor do I believe that is really the question at stake here. Instead, the question is: how should people be classified/categorized/grouped? According to their gender identity? Or according to their immutable, assigned-at-birth sex? These two texts advocate the latter, and thus are a window into a special kind of transphobia, one that presents itself as scientific and objective. The Gorsuch opinion represents this transphobia’s benevolent incarnation, and the Rowling Manifesto is the malevolence that lies underneath.
It is tempting to think that, because of Gorsuch’s ideological consistency and his conviction to stick to the letter of the law, Gorsuch was almost forced into making his ruling. That, in this case, his conservative ideals became a double-edged sword, making him uphold trans rights despite his personal beliefs. I myself long to believe this, and perhaps there is some truth to it. However, when looking at this decision in a greater context, I cannot help but feel that it may be a kind of tactical retreat. That in ceding this hard battle, and ceding it in such a way that reaffirms the importance of biological sex, they are setting themselves up to fight future battles.
Rowling gives us an idea of what battles they could be looking towards. Namely, the existence of trans people, trans women specifically, in what Rowling terms “single sex spaces.” The spaces she specifically mentions are bathrooms, changing rooms, and other such facilities. In my opinion, this is the least significant piece of trans discourse that sees regular discussion, and I am tired of talking about it. Though Rowling warns gravely of the dangers of “[throwing] open the doors of bathrooms and changing rooms to any man who believes or feels he’s a woman,” this statement is nothing more than fear mongering. Empirically, it has been shown that the passage of laws that allow trans people to use public facilities that match their gender identities has no effect on the incidence of “assault, sex crimes, and voyeurism.” Logically, there is nothing as of right now stopping any man, regardless of whether he “believes he’s a woman,” from entering any women’s restroom, changing room, etc. Personally, every trans person I know is terrified of using any such facility, because cis people often inflict violence on us if we try. Cis people pose much more of a threat to us in these spaces than we do to them. This bathroom hysteria is a complete fabrication of the cis imagination, and I would not be talking about it now if you all did not keep bringing it up.
However, there is another, more sinister aspect to Rowling’s call for the sanctity of single sex spaces. It can be seen most clearly when Rowling gives her fifth reason for being transphobic. Rowling begins this section by revealing that she is a survivor of domestic abuse and sexual assault. Before I go any further I want to make one thing clear. I in no way want to shame or dismiss Rowling’s experiences or her narration of them, nor do I want to denigrate her status as a survivor. It deeply saddens me that she lived through such horrifying abuse and trauma, I believe what she says, and I understand why she has such a powerful connection to issues surrounding sexual assault.
All that being said, she uses the rest of this section to be evil to trans women. She acknowledges that trans women, particularly trans women of color and trans women who are sex workers, are at a high risk for sexual violence. This is true. According to the 2015 U.S. Transgender Survey, 47% of trans people are sexually assaulted in their lifetime, with percentages even higher for Native American (65%), multiracial (59%), Middle Eastern (58%), and Black (53%) trans people. Trans people who have done sex work are sexually assaulted at a rate of 72%. Rowling claims to have “kinship” with these trans victims of sexual assault, claims that she “wants trans women to be safe.” However, she also states that their safety cannot come at the expense of the safety of women and “natal girls” (a phrase that makes my skin crawl). Here, we can see that Rowling’s call for excluding trans women from single sex spaces extends not only to bathrooms and changing rooms, but also to women’s shelters or anywhere that a woman might seek safety. Rowling sees that we are in danger, claims to sympathize with our need for safety, and yet still she wants to prohibit us from trying to attain it. She claims she feels “solidarity” towards trans women who “[die] at the hands of a violent man.” That she “[has] a visceral sense of the terror in which those trans women will have spent their last seconds on earth.” Her solidarity must not extend far beyond those last seconds, however, seeing as she would bar those same women from some of the few places they might go for refuge.
This is the danger I see in the Supreme Court ruling, and any law or judgment that defines trans people by their assigned at birth sex. Rowling’s ideas and their relationship to this ruling are not something we can ignore, and they are not contained to the kinds of people who are normally defined as “TERFs.” In fact, a Republican senator recently read an excerpt of Rowling’s manifesto on the senate floor. (Rowling, for her part, has continued to spread vitriolic transphobia into the world, and judging by her Twitter account she has entered the stage of online transphobia in which trans people are all she talks about). I am not saying that I wish this particular ruling had gone any differently. I don’t think it could have gone any better. To truly protect trans employees from their employers’ transphobia, one would need to rewrite Title VII, and that is not the job of the Supreme Court. What I am saying is that we cannot content ourselves with any protections that rely on biological essentialism. It was not wrong for R.G. & G.R. Harris Funeral Homes to fire Aimee Stephens because they were treating a “male” employee unfairly. It was wrong because they hated her for being trans. And until the law and the world recognizes that I will not let myself be satisfied. And that is why I believe we all need to stay vigilant, even as we breath our small sighs of relief. Because whenever they give us an inch, it is so they can later take a mile.