March 31, 2023

We Are All Transgender Now: On Resisting Tyranny

Mary Kelly Persyn Founder and Principal, Persyn Law & Policy; Member, Board of Directors, Bay Area Lawyer Chapter of the American Constitution Society

“Transgenderism must be eradicated from public life entirely–the whole preposterous ideology, at every level."

                                                                    – Michael Knowles, CPAC conference, March 2023

Daily Wire commentator Michael Knowles’ CPAC speech, which went uncondemned by CPAC and GOP conservatives, amplified the wave of violent transphobia yet again running through state legislatures. Hundreds of bills–under consideration, and already signed into law–bolster Knowles’ call to “eradicate” transgender people by denying healthcare to minors, defining transgender people out of legal existence, and excluding them from bathrooms, curriculum, school discussions, sports, and, as Knowles demanded, public life. Entirely.

“Anti-transgenderists” claim they’re not calling for the eradication of people, but rather of an ideology. That’s a preposterous level of gaslighting. Being transgender is not an “ism” or a choice; it is a fact. If an absolute gender binary established at birth is the only option, and nothing else is acceptable (“all or nothing”), transgender people–and intersex people–cannot exist in public life.

As of March 30, nineteen states already exclude trans youth from playing sports. Nine states prohibit evidence-based, best-practice health care for trans youth; bans await a governor’s signature in four additional states, with more bills sailing through committees in legislatures daily. Nearly all of these bans involve forcible detransition, removing youth from established courses of medical care, with unknown but predictably catastrophic results. Their doctors are put in the impossible position of committing malpractice or violating state law. Some states are experimenting with provisions that alter child custody arrangements to penalize affirming parents. In its briefs for the PFLAG v. Abbott case ongoing in state court, Texas makes the ugly claim that the threat of removing trans children from affirming homes does no harm. Seven states prohibit discussion of LGBTQ identity or issues in classrooms; in five additional states, parents can opt their children out of any such discussions. In “Don’t Say Gay” states, the presence of LGBTQ youth and those with LGBTQ families is studiously ignored. “Parental rights,” it turns out, does not include “affirming parents.”

For reasons including stress, discrimination, ostracism, parental rejection, and hostile school environments, trans youth already have some of the worst mental health in the country. The growing tide of hate is making it worse. According to the CDC, in 2021, almost 70% of LGBTQ students were persistently sad or hopeless during the year and more than 50% had poor mental health during the 30 days prior to the survey. Almost 25% had attempted suicide during the prior year. Amidst a torrent of state laws essentially characterizing discussion of their identities as prurient and obscene, the continuing crisis of poor LGBTQ mental health and increasing suicidality seems poised, if anything, to get significantly worse. A 2022 survey by the Trevor Project found that 93% of transgender and nonbinary youth reported worrying about trans people being denied access to gender-affirming medical care because of the legislative onslaught. Almost half of trans youth seriously considered suicide within the past year. Exactly which children is it that the GOP claims to “protect”?

The call to eradicate a group of people and persecute children of specific identities would be utterly intolerable in 2023 if it targeted any other group. The use of this vulnerable community as a wedge to drive religious authoritarianism and fascism further into American government, civil society, and public life is an existential threat to us all–one that will not stop here.

What does that mean for ACS members as progressive constitutional lawyers? It bears repeating that most, if not all, of these laws are unconstitutional. For example, the gender-affirming care bans specifically single out only trans youth, leaving treatments intact for other youth in need of them. In upholding a preliminary injunction of a similar Arkansas law, the Eighth Circuit found this distinction unconstitutional because it discriminates on the basis of sex and prohibits standard-of-care medical practice without an “exceedingly persuasive” justification. Brandt v. Rutledge, 47 F.4th 661, 669 (8th Cir. 2022) (“Because the minor's sex at birth determines whether or not the minor can receive certain types of medical care under the law, Act 626 discriminates on the basis of sex.”). An Alabama federal court similarly enjoined a law prohibiting healthcare for gender dysphoria, finding that it creates a sex-based classification and threatens harm to transgender youth without sufficient justification. Eknes-Tucker v. Marshall, 2:22-cv-184-LCB, at *21 (M.D. Ala. May 13, 2022) (“prohibits transgender minors-and only transgender minors-from taking transitioning medications due to their gender nonconformity. [...] The Act therefore constitutes a sex-based classification for purposes of the Fourteenth Amendment.”).

But our legal community cannot and must not be content with a line of argument dependent on court rulings. These anti-transgender and anti-gay bills and laws, and the rhetoric that backs them, are a clear and present danger not only to LGBTQ youth, but to American democracy and fundamental human rights. Law must serve human values, as Peter Rubin, a founder of ACS, said. As constitutional, civil rights, and human rights lawyers, we prioritize the inherent dignity and worth of all people. If that means anything, it means insistence that no person be excluded from the circle of public life. That must be a core ethic of our legal practice. If we allow the exclusion of some people via invidious discrimination, we open the floodgates for the exclusion of many–really, anyone deemed unacceptable to the authoritarian movement that now threatens our democracy.

How should ACS lawyers orient to this crisis? Some suggestions grounded in Timothy Snyder’s On Tyranny:

  1. Do not comply–“remember professional ethics.”

Many of the people who ran Hitler’s machinery of death were lawyers following orders. American slavery would not have been possible had lawyers refused to facilitate the machinery of human trafficking. In our own day, if we lawyers refuse to comply with laws and orders and procedures that run counter to our professional ethics by refusing to prosecute or sue people who disregard these unjust and cruel laws, we can disable the fascism that continues to gain purchase. If we all refuse to comply, these laws must fail.

For a real-world example, check out the continuing filibuster in Nebraska, where a small group of senators is shutting down the legislative session in protest of LB 574, a draconian gender-affirming care ban. Co-leader Senator Megan Hunt revealed she has a trans child and then defied the legislative majority: “You don’t get that this session is over.”

That is how to refuse compliance. Ground that refusal in professional ethics. For starters, ABA Model Rule of Professional Conduct 8.4 defines engaging in harassment or discrimination on the basis of gender identity in conduct related to the practice of law as professional misconduct. The Rule excludes legitimate advice or advocacy. Ask yourself whether legal services that support the targeting of a vulnerable population of youth for exclusion from society is a form of legitimate advice or advocacy. You already know the answer.

    2. "Be kind to our language” and “believe in truth.”

The use of slurs like “groomer” and “pedophile” to refer to pediatricians providing gender affirming care, “child abuse” to describe parents facilitating best-practice medical care for their children, and “transgenderism” or “gender ideology” to split transgender people from their inherent identity tortures the ordinary meanings of words. We can all refuse to use the heated rhetoric that surrounds these debates and find our own ways to express ideas. “Do not waver into language. Do not waver in it.” –Seamus Heaney

In line with that, we can insist on facts and reality by refusing to align with those who reject expertise, science, and credentials as meaningless. Instead, align with the evidence-based advocacy of literally every large professional medical association in the United States, along with psychiatric, psychological, nursing, and social work professional associations. And recognize the twisting of words and the rejection of facts and expertise for the generalized and serious threats that they are. “Post-truth is pre-fascism.” –Timothy Snyder

   3. "Be calm when the unthinkable arrives."

Few of us likely foresaw that the United States could revert to an era when an entire category of persons would find themselves bereft of core legal rights and even legal existence. Yet this is the future we have to contemplate in many states. A transgender person living in a state where using the restroom corresponding to their identity can be a felony cannot safely participate in public life. An adult transgender man who is legally required to identify as the gender on his birth certificate has been deprived of authentic legal existence. A transgender person who cannot legally access appropriate health care, or who is removed from a prior course of care, has been denied access to fundamentally necessary health care for no reason other than animus. If it can happen to transgender people, it can happen to anyone.

The manufactured crisis–the Reichstag fire–that Snyder characterizes as the “unthinkable” turns out to be a transgender youth’s request for inclusion and peaceful existence. For “anti-transgenderism” advocates, acquiescence would be apocalyptic, requiring a denial of reality itself, and must be resisted at all costs. Hence a line in the sand: us and them. Or as right-wing pundit and self-proclaimed “theocratic fascist” Matt Walsh would have it: “I came to the conclusion years ago that the trans movement is the greatest evil our country faces.” Enter the eradicationists.

This is a test. So is the denial of abortion care without exception, regardless of risk to life. The unthinkable is already here; the question for us is whether we have the courage to recognize it as such, and whether and how we respond.

Remember that law serves human values. Remember that all people have inherent dignity. Be prepared, be clear, be strong. This is not the beginning, and it is far from the end. Don’t just resist. Fight back.


Mary Kelly Persyn is the Founder and Principal of Persyn Law and Policy.