The dissenting opinions in the Supreme Court’s ruling on LGBTQ+ rights echo some well-trafficked TERF talking points. Brett Kavanaugh and Clarence Thomas are two of the biggest feminists on the Supreme Court.
This, anyway, is the conclusion you would be forced to reach if you followed the logic of the TERF (trans-exclusionary radical feminist) movement, which for years has argued that trans people must be discriminated against to “protect” women, and which now finds itself standing with those men on the wrong side of history.
The Supreme Court’s 6–3 ruling on Monday that queer and trans employees are protected under Title VII is a milestone for gay, lesbian, and bisexual people, who for decades have fought for equal employment protections. It is also, even more significantly, the first major decision about trans rights by the Supreme Court. The victory has rightfully been celebrated. But equality advocates would be wise to pay close attention to the dissenting opinions by Brett Kavanaugh, Clarence Thomas, and Samuel Alito — because their arguments are aligned all too closely with conventional TERF talking points.
Alito’s dissent, in which Thomas joined, echoed TERF rhetoric point for point: “For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm,” he wrote. This argument has been raised in the past by figures ranging from Mike Huckabee to the trans-exclusionary Women’s Liberation Front. It also appeared, in a slightly different version, in British author J.K. Rowling’s TERF manifesto, published late last week, wherein she argued that trans rights would “throw open the doors of bathrooms and changing rooms to any man who believes or feels he’s a woman” and “[play] fast and loose with women’s and girls’ safety.”
Transphobia has always served the wider agendas of sexism and patriarchy by making gender a rigid, violent hierarchy with cis men at the top.
The idea that trans women are dangerous to cis women is central to TERF rhetoric, which positions them as predators seeking to invade cis women’s spaces or, indeed, to invade womanhood itself. Those same groups routinely cast trans men as inherently misogynist — deluded, self-hating “women” who have caved to internalized sexism or abandoned womanhood in favor of greener pastures. Even existing as a trans person, by some accounts, is an act of violence done to cis womanhood.
If trans rights actually furthered some sinister agenda of misogyny and sexual violence, you’d think misogynist men would be all for it. Yet there are two justices on the Supreme Court accused of sexual misconduct, and they don’t side with trans people. They side with TERFs. Of course, you can argue about whether you believe Christine Blasey Ford and Anita Hill — more people believe Ford than Kavanaugh, at least — and you can argue the severity of the allegations against each justice, which differ from case to case. (Kavanaugh is accused of forcibly pinning Christine Blasey Ford to a bed, whereas Thomas allegedly cornered Anita Hill and subjected her to repeated, graphic monologues, including descriptions of rape scenes in pornography, after she refused to go out with him.) The facts remain that neither behavior is something any feminist would endorse and that both men are also notorious opponents of “women’s rights” more generally, as is Alito. Thomas even recently accused women who get abortions of committing “eugenics.” And before Alito argued that trans bathroom access would trigger cis women who’ve survived sexual assaults, he was expressing his concern for women by arguing that they should be required to notify their husbands before they get abortions.
These men are embracing TERF talking points, not because they’ve switched gears and suddenly become radical feminists, but because transphobia has always served the wider agendas of sexism and patriarchy by making gender a rigid, violent hierarchy with cis men at the top.
Misogyny is a system aimed at subjugating women by denying them bodily and sexual autonomy, and sexual assault is its bluntest tool, denying the victim control of her body in the most literal way. But transphobia and homophobia are also aimed at subjugating people by denying them sexual or bodily autonomy, and those forms of bigotry are also enforced through sexual violence.
The 2015 U.S. Transgender Survey found that 47% of the trans people who responded had been sexually assaulted in their lifetimes, and one in 10 had been sexually assaulted within the past year. (By way of contrast, the National Sexual Violence Resource Center, which doesn’t segment out for trans status, says that 43% of “heterosexual women” have been sexually assaulted, with those numbers being higher for lesbian and bisexual women.) Fifty-four percent of respondents had also been subject to domestic violence — as opposed to 35% of straight women overall — to which trans women are lethally vulnerable: In the cases of the dozens of trans people killed every year, the vast majority of whom are Black trans women, advocates estimate “about half” are murdered by current or former partners.
Trans people aren’t perpetuating patriarchy—they’re being killed by it. By casting trans people as inherently predatory, TERFs are able to avoid looking at the fact that trans people are at higher risk of violence than cis, straight women are, and that they routinely die for violating the very same gender norms that cis, straight feminists say we want to overturn.
Conservatives and TERFs pit “women” and LGBTQ+ people against each other, as if there were some clean dividing line: “Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement,” wrote Brett Kavanaugh, which sounds civil until you remember that in practice, he supports neither. Yet the distinction can never be that clear. Every woman who is subjected to misogyny is, on some level, being punished for not enacting someone else’s idea of femininity, just as every trans and queer person who is subject to discrimination is, on some level, persecuted for not upholding traditional gender roles.
I’m a bisexual cis woman. As a teenager, I gave myself a very short haircut, wore baggy unisex T-shirts and jeans, had loud feminist opinions, and was subject to quite a lot of violence and harassment: I was spit on, shoved, groped, slapped, threatened, called slurs, had my locker broken into and my papers and notebooks destroyed, and had boys routinely corner me to threaten me with rape, recite detailed and disturbing things they wanted to do to my body, or mime jerking off at me through their pants.
Maybe I was attacked because I was a girl, maybe it was because it was “unfeminine” to speak my mind, maybe it was because I looked like a boy to some people, and maybe it was because looking boyish led people to assume I was gay — in fact, all those reasons were cited by different attackers at different times — but in practice, all of it came down to policing my gender. Closeted trans girls taunted for being “effeminate” or feminine cis girls demeaned for looking “slutty” were in the same situation, just experiencing it from a different angle. All of us would have to be protected in order for any of us to be safe.
It shouldn’t be difficult for cis women to see our own painful experiences of gender policing mirrored in lives that are not our own. Misogyny, transphobia, and homophobia are tangled up with each other in a million subtle and difficult to articulate ways, but in practice, as SCOTUS correctly notes, sex discrimination is sex discrimination; as long as any queer or trans person is unsafe, all women will be. The dissent of Alito and Thomas does not exist in a vacuum; it’s the result of persistent lobbying by groups on both sides of the Atlantic who are determined to entrench traditional gender roles under the cover of “feminism,” and who have already normalized their conspiracy theories to the point that one of the most famous women in the world now cites them chapter and verse.
Misogynist cisgender men have adopted TERF arguments without a second thought, because they recognize them as a way to preserve their own privilege. The “feminists” deluded enough to promote them will find out, too, though by the time they do, it may be too late.