Freethought NOW!

It’s still not actually about trans people

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A photo of someone holding a small whiteboard that says "Hello my pronouns are" with a fill in the blank for the pronouns.
Photo by Alexander Grey on Unsplash

Amid the sparkling lights, hot chocolate and general festive cheer of December and the New Year, it can be hard to remember that the gears of the legal world are still turning. This was especially true for my fellowship project, where the intersection of LGBTQIA-plus rights and state/church separation continues to make itself evident in the courts at all levels.

We have gotten some good news: The Supreme Court declined to hear a case that could have allowed it to overturn conversion therapy bans, had it ruled that talk therapy is “speech” that cannot be regulated by the government. This is important for state/church separation for two reasons. First and foremost, the majority of conversion “therapy” — the debunked practice of trying to change someone’s sexual orientation or gender identity to align with cisheteronormative expectations — is done through religious service providers, based on the religious cultural belief that sex and gender are the same thing, and that people should only be heterosexual. Second, this represents the Court rejecting a dangerous strategy that we have seen before from Christian extremists attempting to circumvent the law: recategorizing religious belief as “speech” as they did in the 303 Creative case.

While these are positive developments, we remain concerned by the continuing threats against the rights of LGBTQIA-plus communities. Look no further than state courts in Virginia, where the war for transgender rights is still being waged.

Our story begins with a 2018 lawsuit.

Peter Vlaming, a former French teacher at a West Point High School in Virginia, was told that a student and his family had informed the school of his gender transition over the summer, and that he would be going by a masculine name and pronouns in the new school year. What should have been a fairly simple adjustment was apparently a problem for Vlaming, who said that because of his religious belief that a person’s sex is biologically fixed, he could not use male pronouns for a student who was assigned female at birth.

To give credit where credit is due, Vlaming did agree to use the student’s new name, and to avoid using pronouns altogether when referring to said student in order to at least avoid blatant misgendering. He even went out of his way to avoid singling out the trans student in his French class by asking the students to choose new French names despite their having chosen names in the lower level class, and attempted to avoid using third-person pronouns for all students as much as he could. This is more than many people with objections to transgender people will do, so I absolutely don’t want to discredit that he took a large step for someone still learning about trans people and allowing their world view to evolve. We should take the time to encourage even partial steps, rather than fall for the trap of absolutism.

But refusing to use pronouns is still a form of misgendering, and more important regarding the legal issue at play here, is against the school’s policy. On multiple occasions, Vlaming was given fair notice in both verbal and written formats that continued refusal to comply with school policy would likely result in his termination, as would be the case if he were in violation of any other school policy. After a heated school board meeting, Vlaming was ultimately fired for insubordination.

Unsurprisingly, Vlaming sued, with the Christian nationalist legal organization Alliance Defending Freedom chomping at the bit to prioritize religious bigotry over the rights of children to receive an education. ADF has been chasing after cases in which religious teachers have been penalized for refusing to treat their transgender students with respect, causing disruption to the school environment. They’ve brought three similar lawsuits in Virginia, as well as suits in Kansas, Ohio and Indiana.

Vlaming sued in state court for breach of contract, stating that the school had violated his religious liberty and free speech rights, among others. The case was dismissed by a judge at the lower court level before trial, on the grounds that Vlaming did not have a strong enough free exercise claim. It should have been dead from there. Vlaming violated a neutrally applicable policy, and regardless of his intention, caused harm to the student to the point that he withdrew from Vlaming’s French class. This had a real, substantive impact on the student’s education: There is only one French teacher at the school, which meant that he did not have equal access to the same opportunities as his peers. (And even had there been another French teacher, last I checked, most reasonable people are of the mind that “separate but equal” isn’t exactly a great policy choice.)

The Virginia Supreme Court, however, did not see it that way, and instead ruled that the case must go to trial at the lower court. The court’s reasoning hinged on the idea that Virginia law requires a much higher bar than the First Amendment for potential harm caused by religious practice in order for the state to have a compelling reason to restrict it. While one would think that the rights of the student would at least play some role in the analysis, the majority side-stepped the issue, only acknowledging the concept once in its 73-page opinion (to say that they would not be discussing it).

This case will now proceed to trial, in which ADF will either win, damaging the rights of students across Virginia, or it will inevitably appeal to a state supreme court that has already clearly signaled its opinion on the issue.

Even if you don’t care about trans people, the overarching theme of this argument is one you should be concerned about if you care at all about state/church separation. In fact, if you don’t care about trans people, you should be especially concerned about this case (and other cases like it), or else you risk letting yourself be ignorant of the end goal of Christian nationalists. I’ve written before about how the current attack on transgender rights is not actually about trans people. The Christian nationalist movement has realized that transgender people are a useful vehicle in order to turn public opinion and legal precedent in its favor. ADF is taking on cases like this at an exponential rate in order to build a body of case law that essentially makes religion a get-out-of-jail-free card.

I constantly have to remind myself and others, that as nonsensical as we might find the arguments of religious extremist groups, a difference in values is not the same as a disparity in intelligence or competence when it comes to achieving their goals. This strategy of focusing on a vulnerable minority group that few Americans have experience with is shrewd. That’s what makes these groups so dangerous. It’s easy to get people to look away when at first glance the rights that are being violated have nothing to do with them.

But decisions that place religious beliefs over the rights of transgender people don’t just stop with us. That’s simply not how the law works.

Let’s take a moment to step back and follow the logic. What happens when a teacher believes that disability is a punishment from God for sin, and therefore refuses accommodations to a student with an Individual Education Plan or a 504 plan? What happens when a teacher believes that God made white people the superior race, and refuses to teach students of color? What happens when a teacher feels that it’s an essential part of their religion to proselytize to students, and requires them to pray before every class? Just like with the trans student, there is no immediate, physical harm caused by these actions. But it doesn’t take a law degree to see that there is in fact harm caused. That’s why in all of these cases, students are meant to be protected by anti-discrimination laws and the First Amendment.

Rights in a thriving, pluralistic society are a balancing act. I’m the first to say that this balancing act is a difficult one — the challenge of striking that balance is part of what I love about being a lawyer. When there is an issue of competing rights, that process necessarily involves considering which party is more vulnerable to harm. I doubt I need to explain how in cases where the rights of teachers and students are at odds, students are always going to be the party most in need of protection.

I’m not going to ask you to care about trans people, though I will always encourage people to learn about the long and rich history of human gender diversity and the nuances of biology, psychology and sociology underlying it. But if you think trans rights aren’t critical for maintaining a secular democracy where laws are based on reason, not religion, you’re failing to see the forest for the trees. Stop focusing on your personal discomfort, look at the big picture and ask yourself: Who is the real enemy here?

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5 Responses

  1. The Right has always been the right, and the ones who didn’t like gays probably aren’t going to like transpeople either. But it’s not them “turning public opinion” against transgenders, it’s you: FFRF and formerly liberal organizations such as the SPLC and ACLU, whom I was a longtime supporter of, up until a couple of years ago.

    “Progressives” and Trans Rights Activists self-righteously threw all biological women under the bus with the dictum that any man can be a woman if he says he is, and deserves free access to any womens spaces.

    FFRF’s anti-woman stance is what kept me from donating to your organization, and I was a early supporter of the Satanic Temple. They at least have a clear mission.

  2. All trans-rights issues cannot be church-state issues. That is an example of the view that if you have only a hammer every problem looks like a nail. Women are perfectly entitled to be uncomfortable around men who masquerade as women and who demand to be regarded as women. Women have to learn how to perceive threats and avoid them because they are not physically strong enough to repel them with violence. A man masquerading as a woman is an example of false signaling that, like all false signaling, entitles the decoder of the signal to regard the person displaying it as a threat. (It’s essentially the same as someone who misrepresents his income on a loan application and fakes his letter of credit reference.) That’s a double threat: first from the false signaling itself and second from the stealthy encroachment into women’s space that it enables. That is something that men can’t understand, no matter how sincerely they feel they are women, unless women explain it carefully to them. So laws barring men from women’s spaces (usually bathrooms, locker rooms, violence shelters, shared sleeping arrangements on school field trips, sport, and prisons) are just. They need not appeal to some religious proscription against deviance. My personal support for those laws certainly does not.

    In addition, a woman is perfectly entitled to feel discomfort and revulsion in the presence of a man attempting to pass as a woman even outside those legislated spaces. It represents an attempt to deceive her into not fearing what she has every right to fear. As Helen Joyce says, “Women are the rape-able sex.” Not every man will rape, of course, but every woman is at risk of being raped if she gets it wrong. It should also go without saying, even though no “anti-trans” law mentions it, that men who present as women should not attempt to browbeat lesbian women to have sex with them by calling them transphobes.

    Once the trans activists withdraw themselves from attempts to further their own interests by harming women’s, then we can talk about what your rights ought to be, if any beyond the traditional civil liberties that all people enjoy.

  3. Well, I respectfully disagree with you. I reject the premise that all adverse or potentially adverse actions or attitudes about trans people necessarily implicate religious extremism. You have ignored my point that there are many people, including many atheists, who hold views that the trans community would disagree with. Are those people stealth members of the religious right? Obviously not.

    Not every issue involves the assertion of a constitutional right to discriminate, and all trans issues do not necessarily involve religion. One example is the argument that trans women should not participate in “women’s sports” as it is unfair to cis women. That some conservatives agree with this, and whether you or anyone else disagrees with it, is not relevant to my point. The point is that this argument typically is made without invoking a religious justification. Unless that happens, FFRF should not take a stand on it (yeah, I know, too late).

    I have to say that it is irritating for a second time to be lectured about what question I should be asking myself. Perhaps you should ask yourself why you feel the need to engage in such pedantry. But I am not advocating that anyone look the other way while the Nazis take over, and the implication that I am is out of line. Asking FFRF to focus on its core mission is not the same as “waiting until they come for” us. As I thought I made clear, I am not saying that FFRF should not take up the cause of trans people when faced with explicitly religious-based discrimination. This is not passivity.

    But again, not all issues around trans rights fall into this category, and it is worrying that I am being told that I simply have to believe otherwise. In such cases I believe that FFRF should stay on the sidelines. The organization cannot be, and should not try to be, all things to all people. There are other groups that can and will take up those causes, and FFRF’s core mission should not be co-opted in order to fight other fights.

    As for why I mentioned my own views, I did that to try and head off being dismissed out of hand as just some transphobic crank. Dismissals like that are all too common these days when people hear things they don’t like. So I guess I can’t win on that front: damned if I do and damned if I don’t. I suppose I could say that I’m not sure it was necessary for you to mention that you are gay. But I will interpret this as your desire to add perspective rather than to assert a superior ability to understand these issues.

    I am not remotely alone in seeing the situation as I have discussed it above, and I am concerned that this disconnect may damage FFRF’s base of support. To be clear, I am not threatening to discontinue my support for FFRF, I believe that its core mission is crucial to our future. But not everyone feels like me in that regard, and I know of several people who have already stepped away. The remedy is not really a hard one, but I am under no illusions that the leadership of FFRF will “heed my prayer”. More’s the pity.

  4. Let me first state that I am a Lifetime Member of FFRF and strongly agree with and support its mission to keep state and church separate. The ploys and smokescreens that the religious right uses to advance their agenda are insidious and must be opposed.

    But I am curious about the tone of this article. It seems rather defensive, at least in places, with phrases like “even if you don’t care about trans people” and “I’m not going to ask you to care about trans people”. Are you getting complaints for being involved with trans issues? I assume you must be, as otherwise why would I be told, somewhat pedantically, that apparently I can’t see “the forest for the trees”.

    I am writing this because there is a fine and rather difficult line that I am concerned about regarding FFRF’s involvement in these issues. I am a staunch atheist and my support for FFRF is based on its work around religion and the separation of church and state. As this article obviously illustrates, the religious right will attack any and all social issues with which it disagrees by playing its favorite “free exercise” card. So I fully support efforts to oppose this nonsense, whether it is in respect of abortion, trans issues, or whatever.

    But while it is clear that FFRF cannot avoid entangling to some degree with certain politically charged issues such as these, it is my opinion (for what little it likely counts with you) that the focus of the organization should always remain squarely on its core mission and avoid involvement or advocacy in controversial political concerns in situations where religious claims are not specifically invoked. I disagree with the author’s sweeping statement that “trans rights [are] critical for maintaining a secular democracy”. I do not accept the implied conclusion that all arguments or conflicts around trans issues are precisely coterminous with religious claims. I am concerned, however, that FFRF increasingly is not concerned with the distinction.

    Sex and gender is a controversial topic and there is substantial disagreement on many of the “nuances of biology, psychology, and sociology” that are not rooted in religious fol-de-rol. Scientists that I respect, and who are generally allied with FFRF (e.g., Jerry Coyne, Richard Dawkins, et al.) have expressed certain views that some trans rights activists may dislike. In my opinion FFRF should not become politicized around these topics, and I would hope that the organization will steer clear of these waters.

    As for being told, rather insultingly, to “stop focusing on [my] personal discomfort”, that is just a distraction, and whether or not I or any member cares about trans people (whatever the author’s standard for that is meant to be) is indeed beside the point . Personally, I do not have any discomfort with trans people and I believe that everyone should be allowed and encouraged to be whoever they are or believe themselves to be. I have no problems using whatever pronouns a person asks me to use. All of which is also beside the point. I am clear on who the enemy is.

    The title of the article, at least, gets it spot on. For FFRF it is not, or should not be, about trans people. I hope FFRF truly sees it this way.

    1. Steven, as much as I respect your views on what FFRF must stand for (ie. Separation of church and state), I think you misread, or possibly missed the point of the title of the article. “It’s still not actually about trans people” is not referring to the FFRF; it is referring to the attack on trans people by the religious right.

      The point of this article, along with Kat’s earlier article from May 2023 titled “It’s not actually about trans people”, is that for the religious people who are persecuting trans Americans this is not really about trans people; It’s a sidestep to push for more religious based discrimination, something we can probably agree is within FFRF’s wheelhouse. This is just the latest “satanic panic” from the 1990’s or the moral panic of the 1940’s and 1950’s that led to McCarthyism and the Comic Code Authority. It’s christians using religious grounds to push for further encroachment of religion into our laws.

      I applaud your openness to using chosen pronouns and supporting people in being who they choose to be, but I wonder why you felt the need to call this out as having nothing to do with the separation of church and state. Literally the point of the article is that it is a proxy war for separation of church and state, much like the war in Ukraine is a proxy for the ongoing NATO-Russia conflict. This is no different than the war of the early 2010’s around gay marriage was a proxy war for the same state church separation conflict. I see gay rights, and trans rights, and separation of church and state as very coterminous.

      Maybe it’s because I am a gay man that these proxy wars on these small, seemingly indefensible, groups are reminiscent of the great quote from Martin Niemöller “First they came for the socialists, and I did not speak out—because I was not a socialist. Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist. Then they came for the Jews, and I did not speak out—because I was not a Jew. Then they came for me—and there was no one left to speak for me.”

      The question you should be asking yourself isn’t “is a separation issue?” it’s “when will they come for you?”

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