Stop Using RBG’s Words for Anti-Trans Ends
Since this is already going around, suggesting that RBG would have barred the doors of sex discrimination law in a way that would have left trans people out, we want to be clear: Don’t get it twisted. We don’t know Justice Ginsburg’s position on the North Carolina law that ban trans people from using the bathroom that matches their gender identity, now being challenged in court. But it’s the height of disingenuousness to suggest that her view of sex discrimination froze in 1975, and that it hasn’t already evolved in response to LGBT activists powerfully raising her and the rest of the world’s consciousness. To begin with, we reject the transphobic characterization in the post that the issue at hand is “biological males in a women’s restroom,” or “biological males [who] actually perceive themselves as female.” It is also deeply misleading to ignore the context of RBG’s words. When RBG wrote that the Equal Rights Amendment would not require unisex bathrooms, anti-feminist activists were scaremongering — successfully, as it turned out — to prevent the recognition of women’s equality in the constitution. The movement for women’s equality had been organizing for decades to transform gender roles, which RBG has always believed is the precondition to social change. But she often feared going too fast and triggering a backlash. Unfortunately, even after a half-century of work to pass the ERA, that backlash happened anyway. Even so, the law of sex discrimination has evolved as social movements have demanded change, which is the order RBG has always preferred as a matter of strategy. According to her ACLU colleague Kathleen Peratis, in early meetings of the ACLU Women’s Rights Project in the 1970s, Ginsburg was reluctant to pursue lesbian rights – not because she opposed them, but because she thought pursuing the issue through the courts at that time was the wrong strategy.
But it would be a mistake to conflate RBG’s views with what she thought the country and its judges were ready for in the 1970s. She certainly has never approved of openly discriminatory laws, especially when they come in the guise of “protecting women.” In 1996, she signed onto the majority opinion in Romer v. Evans, which also involved a state trying to override a local anti-discrimination ordinance: A “bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Sounds a lot like HB2.
Years of organizing later, RBG also showed an evolving understanding of how rights could be expanded. As early as 2004, only a year after the court voted to strike down Texas’s anti-gay sodomy ban, RBG made comments that indicated support for same sex marriage, and in 2013, after the court finally struck down the Defense of Marriage Act, she was the first justice to perform a same-sex marriage.
RBG told Bloomberg last year that she thought the country was ready to recognize the equal rights of gays and lesbians: “In recent years, people have said, ‘This is the way I am.’ And others looked around, and we discovered it’s our next-door neighbor – we’re very fond of them. Or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘This is who I am,’ the rest of us recognized that they are one of us.” Months later, when the court struck down same-sex marriage bans, RBG signed onto an opinion that cited her own sex discrimination cases.
One passage in the opinion, written by Justice Anthony Kennedy, comes right out of RBG’s legal playbook: “The Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” Is a recognition of the rights of trans people such a relatively new insight that “can reveal unjustified inequality”? Is the primary motivation behind the newly passed bathroom laws a “bare desire to harm a politically unpopular group”? We may learn if RBG agrees, but in the meantime, it’s profoundly clear that her words four decades ago were not the end of the story.
Important read.
