The Curious Case of the Anti-Trans New Yorker Article

Now more than ever, we need to be thinking clearly about legal protections for the safety and dignity of the LGBTQ community. One crucial source of protection is Title IX, the federal law providing that "No person in the United States shall, on the basis of sex, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance." On the basis of which the Obama administration has issued guidelines to the nation's schools to ensure they are allowed to use the facilities that match their authentic gender identity.

These guidelines are based on the simple proposition that discrimination against transgender individuals is discrimination on the basis of sex. This is no more controversial than the proposition, settled years ago by the Supreme Court, that an employer that fires a woman for not being "feminine" enough is guilty of sex discrimination.

Nonetheless, the administration is under attack not only by right-wing cranks and political opportunists, but by mainstream commentators who have a real blind spot when it comes to trans safety and equality. A distressing case in point is a recent article in The New Yorker by Jeannie Suk, who criticizes the administration for taking the "bold and controversial" step of protecting transgender students without following "lawful processes," and asserts that "parents' rhetoric of federal overreach is not off-base."

This type of argument has been routine ever since liberal critics of Brown v. Board of Education accused the court of moving too fast, acting lawlessly, usurping the democratic process, and so forth. It emerges with dreary regularity whenever a subordinate group -- racial minorities, women, gays, immigrants, now trans individuals -- manages to secure some measure of federal protection against discrimination. Suk's rendition well captures the combination of ignorance and subtle hostility too many mainstream commentators bring to the subject of trans equality.

"First," she begins, "the Justice Department told North Carolina that its recent law, requiring education boards and public agencies to limit the use of sex-segregated bathrooms to people of the corresponding biological sex, violated federal civil-rights laws." That's one way of telling the story. Another would be: First, North Carolina passed a law that criminalized transgender people for using restrooms in accordance with their gender identity. But that version would disrupt the desired narrative, which portrays the federal government as the aggressor. On Suk's account, everything was normal until the federal government disturbed the peace.

Then the administration issued its Title IX antidiscrimination guidelines to the nation's schools. "The threat was clear: schools that failed to comply could lose federal funding," Suk says. "Protests of federal overreach immediately ensued, including from parents citing safety and privacy as reasons for children and teen-agers to share bathrooms and locker rooms only with students of the same biological sex." Notice the parallel storylines: The feds are threatening state and local institutions; transgender students will soon be menacing other children and teenagers. Before the administration acted, everyone was safe.

Missing from this account, of course, is the danger to transgender students. Their parents too have protested, objecting to a status quo in which trans children are made to use facilities where they are bullied and attacked, and their protests are supported with actual evidence, unlike the fact-free hysteria of their opponents. Suk devotes exactly one sentence to violence against trans people, saying its effect is to "make things more complicated." Last year saw the highest murder rate on record against trans females, but this is only a "complication" to the real story, which is the imaginary danger posed by allowing them to use the same facilities as other females.

Also missing is the danger to American institutions from federal inaction on civil rights. In Suk's view, all the hazards come from federal action against discrimination. If, like previous administrations, the Obama administration had looked the other way while state and local governments continued to victimize their most vulnerable citizens, there would have been no harm at all.

The administration's initiative will be terribly disruptive, Suk says. For several years, it has insisted that educational institutions take seriously their Title IX obligations to protect students from sexual assault (an undertaking Suk has also outspokenly criticized); now it is telling them to allow transgender students to use gender-appropriate facilities. But a school can't do both, she argues; if it opens its women's room to trans women, it will invite lawsuits from other women who think the measure creates a "hostile environment." Such are the wages of the administration's crusade against the normal way of life on American campuses.

Similar prophecies of doom were made about racial desegregation, and have accompanied every civil rights breakthrough ever since. Disaster always looms after the judiciary or the president extends equal protection of the laws to people to whom it has long been comfortably denied. Suk's dire scenario, which assumes a judicial willingness to push Title IX's sexual assault rules to farcical extremes, has as much chance of coming to pass as those of earlier generations of doomsayers. Which is to say, none.

What explains this rather patent lack of sympathy for trans equality? One clue may lie in Suk's belief that transgender women are not "biological" women. Actually, they are, according to biologists; the research suggests that their gender identity is hard-wired in the brain. Suk, however, is content to rely uncritically on the received view that equates people's sex with their genitalia. From which it is a short step to conclude that trans women (and men) are not "really" what they claim to be, that they are not "really" the victims of sex discrimination, and that they bring mistreatment upon themselves by their own lifestyle choices.

Suk's indifference to their plight is impressive. Desegregating facilities, she worries, may aggravate "feelings of female sexual vulnerability"; the vulnerability that trans females feel under the status quo does not matter. "The discomfort that some people, some sexual-assault survivors, in particular, feel at the idea of being in rest rooms with people with male sex organs, whatever their gender, is not easy to brush aside as bigotry." Would she say the same about crime victims who claim they are made uncomfortable by people of the same ethnicity as their assailants? And this: The case for bathroom segregation is based on "fear of attacks and harassment carried out by males -- not fear of transgender people." Why transgender females should be made to pay the price of aggression committed by males, we are never told.

A cardinal principle of modern antidiscrimination law is that a state's laws must be no more restrictive than necessary to achieve their aims, and may not be based on unfounded fears and stereotypes. So, to take a notorious example, the government may not round up citizens of Japanese ancestry because it thinks some of them might be World War II spies. That disgraceful episode had many liberal defenders at the time, just as today's discrimination against trans people has many thoughtful observers like Suk musing that it's a complicated issue, reasonable minds can disagree, let's not judge too hastily.

As we did not need the Orlando tragedy to remind us, measures to protect the safety of the LGBTQ community and to discourage prejudice against it cannot come soon enough. It is sad to see The New Yorker join the dishonorable tradition of providing liberal cover for discrimination.

MISCHA HAIDER is a mother, trans activist, and a researcher at Harvard University. BRUCE HAY is a professor of law at Harvard University.