Earlier this month, the Freedom From Religion Foundation signed on to a friend-of-the-court brief in a case challenging Indiana’s ban on trans girls playing sports and the law’s “grievance procedure” requirement. The National Women’s Law Center wrote the excellent brief and nearly 60 organizations joined. After FFRF announced that it had signed on to the brief, some of its supporters wondered about the state/church connection to this issue. I hope to shed some light on the background of this case and why anti-trans bills and laws are indeed attacks on the separation of government and religion.
Religious groups are pushing bills that target transgender people.
Alliance Defending Freedom, a wealthy Christian nationalist legal outfit that the Southern Poverty Law Center deems a hate group, is a huge force behind the national effort to enact trans sports bans and to otherwise target LGBTQ-plus kids and their families. The group consistently pushes for religion in government and bills itself as “the world’s largest legal organization committed to protecting religious freedom, free speech, the sanctity of life, parental rights, and God’s design for marriage and family.”
As reported in the Washington Post, Alliance Defending Freedom is significantly involved in drafting and pushing anti-LGBTQ bills, opposes marriage equality and has even worked to criminalize sex between consenting adults of the same sex. The organization collaborated with Idaho legislators to enact a trans sports ban and has joined other groups to push many anti-LGBTQ state bills. The coalition says that these are aimed at “restoring traditional family values.”
We are familiar with this playbook. The Religious Right finds issues to push their religious agenda, but it doesn’t come out and say “religion!” We see this with issues such as abortion, gay marriage and, now, bans of LGBTQ books. Religion-minded groups and lawmakers are fighting a religious fight but they have wisened up and are not pointing to the bible as the source of their concern. Instead, they feign concern for competitiveness in girls sports (why have they never cared before?) and the “appropriateness” of school library materials.
In terms of the separation of state and church, we should care about the use of government power and resources not only to push religious activity, but also governmental abuses seeking conformance with someone else’s religion. Today, many recognize that bans on gay marriage fall into the later category. We appear to be on the front of a new wave of state legislation that wants to reinforce “traditional” and biblical gender roles and stereotypes. That is a problem for the separation of state and church, especially when public schools are involved.
Indiana’s ban is extreme.
Alliance Defending Freedom worked with Indiana legislators to enact the ban. It even filed an amicus brief in the district court seeking to defend it.
It is telling that this proposal was so extreme that the Republican governor of Indiana vetoed the original bill, HB 1041. The Legislature overrode that veto and enacted a highly contentious law that targets a vulnerable population to seemingly score religious and conservative points.
As the governor’s veto and the National Women’s Law Center brief point out, the “grievance procedure” in the law is hugely problematic for all athletes who play on a team that is designated “female, women’s or girls.” The law requires schools to implement an undefined system to allow a student or parent to submit a “grievance” about other athletes.
The National Women’s Law Center brief says that these procedures “could mimic the outdated and harmful sex verification procedures historically present in some women’s sports.” It then gives examples of a troubling history of women being accused of not being appropriately feminine and being subjected to invasive and harassing sex verification procedures. And it provides specific examples of women of color being especially susceptible to accusations.
The current lawsuit
The Indiana lawsuit is noteworthy because it will: 1) benefit students who are under attack from religious organizations; and 2) reaffirm legal precedent that protects people from religiously motivated stereotyping surrounding gender.
First, this case is not just about allowing the 10-year-old plaintiff to play a particular sport. The challenge is also about striking down the overall law.
Second, the district court’s decision issuing a preliminary injunction correctly analyzed the case under current Supreme Court and 7th U.S. Circuit Court of Appeals precedent. The court said:
Applying Bostock and Whitaker — both of which are binding on this court — to the facts of this case leads to a result that is not even a close call: A.M. has established a strong likelihood that she will succeed on the merits of her Title IX claim.
The 7th Circuit ruled in a prior case, Whiteaker v. Kenosha Unified School District, that a school’s ban on a transgender boy from using the boy’s restroom based on the school’s sex-stereotyping violated Title IX. This background is useful in understanding the legal landscape. Religious groups want to establish precedent that allows sex-based discrimination, which would then be used to undercut the rights of LGBTQ-plus Americans.
Where do we go from here?
As this case proceeds in the courts, we can expect Alliance Defending Freedom and other religious groups to continue to press legislation that they believe will undercut LGBTQ-plus equality. It is worthwhile for secular groups to keep a watchful eye and to join friend-of-the-court briefs in court challenges. Religious organizations have a long game that seeks to dismantle the wall of separation, heighten the free exercise rights of Christians, and to impose their religion via our laws. In the context of sports, religious groups are looking to create a legal framework that allows for transgender discrimination.
FFRF was in good company when it joined almost 60 other organizations in signing on to the National Women’s Law Center brief. Those groups include the Anti-Defamation League, American Atheists, American Humanist Association, Human Rights Campaign, Interfaith Alliance, and the Secular Student Alliance.
The laws targeting transgender individuals and their families are a replay of how religious coalitions have attacked the right to an abortion. Prior to the overturning of Roe v. Wade by the high court, our nation saw an unprecedented attack on abortion rights at the state level, ranging from harassment and TRAP laws to outright bans. All were calculated not just to deprive citizens in those states of their reproductive rights, but to test the changing Supreme Court. In Texas, both reproductive rights and gender-affirming care have come under attack via legislation and regulatory action. Creating a tsunami of hostile legislation ensures that eventually challenges of some of these laws will make their way before the ultraconservative Supreme Court, which is inviting litigation that will give it the opportunity to overturn progressive precedent.
And this is already underway. In early December, the high court will hold oral arguments on what is being dubbed “Masterpiece Cakeshop II,” a challenge by a religious businesswoman who insists her religious beliefs against same-sex marriage makes her above the law. These challenges will create general precedent to privilege religious citizens and corporations, weaponizing religious liberty at the expense of our vaunted principle of separation between state and church. The cases involving trans rights, in short, are in response to a highly calculated line of attack by religious groups that want their religion to dictate our laws.
One Response
TO FFRF MAKING TRANS A RELIGIOUS ISSUE
Like so many others in this discussion attempting to make trans issues primarily religious ones, you (and the FFRF) are ignoring the fact that many of us disagree with the scientific issues that transgenderism raises. You have jumped on the bandwagon that conflates gender with sex, which is a patent biological fallacy. And from that misguided and dangerous position arise all the naively simplistic demands by so many people and organizations like FFRF (and, sadly, by Planned Parenthood) that even young children with gender dysphoria should have free access to “gender affirming” drugs (puberty blockers), chest binders, and even mastectomies and removal of sex organs (and woefully inadequate and very experimental procedures to change penises into vaginas, and vaginas into penises).
No human being under the age of at least 20 has the emotional or mental maturity to decide to make an irreversible decision to attempt to have his or her biological sex changed. I use the word “attempt” because it is impossible to change an individual’s sex (which is not gender) via surgery. Youngsters are often mislead into believing that their actual biological sex can be changed, yet a child born biologically female can never produce sperm, and one born biologically can never produce ova.
The only possible answer to the dilemma of gender dysphoria (which should be called “biological sex dysphoria”) is that our societies must change to fully accept those who are confused about their sex (and this applies equally to those who may find that they are homosexual). These individuals (especially children) must be accepted by their parents, teachers, friends, and peers as having the common, normal human condition of not being quite sure who they really are. They must be supported with good counseling and psychiatric care to help them on their journey. But that’s a terribly complex solution, isn’t it? How could we make that work? I certainly don’t have guaranteed answers–nobody does. And it’s human nature to want simple answers, or at least answers that seem simple in the present: block those puberty hormones and perform “sex affirming” surgeries.
We are already starting to see the results of that unscientific and irrational way of thinking: suicides among youngsters whose “sex changes” have not gone as planned (along with deaths due to the experimental nature of the surgeries done to supposedly effect those changes), and the desire of an increasing number of older individuals to detransition when they discover that it was the wrong decision to make. And none of this stems necessarily from religion. I am terribly disappointed that the Freedom From Religion Foundation is twisting itself into irrational knots to try to make the very real issues of transgenderism a mostly religious issue.