(Daily Signal)—Transgender activists once used maximalist legal arguments to force their worldview on American society, but now they’re arguing defensively.
Activists are accusing the government of trying to silence them and take away their health care benefits. To some degree, this strategy represents a legal response to President Donald Trump’s reelection, but it also reveals an important cultural development.
“The social and cultural permission gatekeepers on the Left have sort of lost the battle on whether or not you can speak out on these issues and have a different opinion than the Left and continue to function in civil society,” Hiram Sasser, executive general counsel for First Liberty Institute, tells the Daily Signal.
The Era of Transgender Maximalism
Not too long ago, transgender orthodoxy was on the rise. After the Supreme Court redefined marriage in Obergefell v. Hodges (2015), groups like the Human Rights Campaign demanded corporations implement policies to honor preferred pronouns.
The American Civil Liberties Union took the case of Gavin Grimm, a female student who identified as male and who sued the local school board to gain access to boys’ restrooms—and prevailed.
Even an Originalist Supreme Court justice, Neil Gorsuch, effectively rewrote federal law in Bostock v. Clayton County, ruling that Title VII of the Civil Rights Act of 1964—which prohibits sex-based discrimination—also forbids employers from firing workers over their sexual orientation or gender identity.
The Human Rights Campaign urged the incoming administration of President Joe Biden to extend the ruling to apply into areas Gorsuch explicitly said it did not affect, such as sports teams and bathrooms, and Biden’s administration did so in 2021.
The Legal Landscape Today
Yet, a few years later, the Human Rights Campaign is hemorrhaging corporate allies, the Trump administration is investigating medical billing fraud for sex-rejecting procedures, and the transgender movement is making some rather interesting defensive legal arguments.
During the January oral arguments for West Virginia v. B.P.J., a case examining whether males have the right to compete in women’s sports, the ACLU effectively conceded the legitimacy of fairness concerns. The ACLU argued that, while some men may enjoy advantages over women in sports, the men who identify as women in this case had undergone medical interventions that made them less of a threat.
This marked a significant retreat from the maximalist claim that “trans women are women,” and the dismissal of any fairness concerns as bigoted. The argument effectively went from “there is no difference, bigot,” to “interventions reduce the difference.”
The World Professional Association for Transgender Health, an activist group often cited as the gold standard on transgender medicine during the Biden years, recently claimed in a legal filing that its Standards of Care represented medical opinion on a topic of “medical and scientific uncertainty.” WPATH wasn’t dismissing the standards as baseless or as “mere opinion,” but it was stating that, for legal purposes, they do not qualify as the kind of truth claims the government can regulate as consumer fraud. It also effectively conceded that there is more than one rational position on the issue.
Why Did the Transgender Movement Run Out of Steam?
Sasser, the First Liberty attorney, used a military analogy to explain the reversals. The transgender activists have “overrun their cultural supply lines,” he said.
He noted that transgender activists have not just championed the idea that a man can become a woman just by saying so, but that they attempted to silence those who disagreed. The Human Rights Campaign often claimed that there is an “epidemic” of violence against transgender people and that dissenters bear some responsibility for transgender suicides.
Yet Sasser claimed the cultural pressure led the movement to lose certain allies, such as lesbian tennis legend Martina Navratilova and liberal-leaning Harry Potter author J.K. Rowling.
“That, I think, is what is beginning to make their legal strategy crack a little bit, and is giving not just the public, but also the judges, social and cultural permission to say, ‘Look this is a step too far’,” he noted.
Sasser also argues that the stories of Christians, Muslims, and others who fought for their religious freedom to opt out of endorsing transgender ideology helped educate the public and spur debate.
The pendulum will swing even farther, the First Liberty lawyer predicted.
“I could imagine judges, once who preferred pronouns, deciding not to anymore,” he explains, noting that “might become a topic of discussion” in future Supreme Court confirmation battles.
The transgender movement won’t be throwing in the towel anytime soon, but the key shift in its legal arguments illustrates how far America has come from 2021.
A decade ago, transgender activists sought to expand legal recognition into new areas of American life, from schools to workplaces, from sports to health care. It achieved this progress by dominating the heights of American culture and attempting to dictate what shall be orthodox for the rest of us.
Today, however, disagreement with transgender ideology is no longer considered beyond the pale, and the court arguments prove it.
