This article original appeared on January 11, 2019 in ReWire.News.
In the 1970s, ultra-conservative, anti-abortion, anti-feminist crusader Phyllis Schlafly organized STOP ERA, the successful campaign to tank the Equal Rights Amendment. So devastating was the loss that the legislation—proposed to remedy gender disparity in employment, property ownership, and other areas—has been mired in the courts and state legislatures for 40 years.
“Since the women are the ones who bear the babies and there’s nothing we can do about that, our laws and customs then make it the financial obligation of the husband to provide the support,” she said in 1973. “It is his obligation and his sole obligation. And this is exactly and precisely what we will lose if the Equal Rights Amendment is passed.”
And yet two self-proclaimed feminist organizations have found themselves on the same side as the ultra-conservative policy advocacy organization that Schlafly founded off the back of her STOP ERA win, the Eagle Forum. All three have filed amicus briefs urging the U.S. Supreme Court to review the case of cisgender students challenging the trans-inclusive school policies of a school district in Boyertown, Pennsylvania. In doing so, they join others including the anti-LGBTQ Institute for Faith and Family, anti-trans pediatrician Miriam Grossman, conservative former-secretary-of-education-turned-talk-show-host Bill Bennett, the Christian Educators Association, four constitutional law professors, and anti-trans activist Walt Heyer.
The Boyertown Area School District has a trans-inclusive nondiscrimination policy that includes the affirmation that students may use the bathroom and changing room that matches their gender identity. In 2017, the school district was sued by the Alliance Defending Freedom (ADF) on behalf of a handful of cisgender students who argue that permitting transgender students to use the same facilities is a violation of their privacy.
ADF claims that these cisgender students have a constitutional privacy right to not have people “of the opposite sex” near their “partially clothed bodies.” Recognizing the rhetorical contortions and scientific illiteracy necessary to make that legal argument, the federal district court for the Eastern District of Pennsylvania held that the school district had a compelling interest in protecting transgender students’ health, safety, and ability to participate fully in school. And the Third Circuit agreed upon appeal: “As we shall explain, we conclude that, under the circumstances here, the presence of transgender students in the locker and restrooms is no more offensive to constitutional or Pennsylvania-law privacy interests than the presence of the other students who are not transgender.”
In 2018, ADF represented Jack Phillips in the Masterpiece Cakeshop v. The Colorado Civil Rights Commission decision and the shop owner in Arlene’s Flowers v. Washington in their quests to deny services to LGBTQ people; helped draft some of 2018’s most restrictive abortion legislation; argued the case in which the Supreme Court found that crisis pregnancy centers don’t need to disclose the types of services they do (and don’t) provide; and orchestrated a campaign to terminate family planning providers from Medicaid.
The Southern Poverty Law Center designates ADF a hate group “that has supported the recriminalization of homosexuality in the U.S. and criminalization abroad; has defended state-sanctioned sterilization of trans people abroad; has linked homosexuality to pedophilia and claims that a ‘homosexual agenda’ will destroy Christianity and society.”
So why are “feminist” organizations with lesbian members joining ADF, Schlafly’s anti-feminist Eagle Forum, and others in their arguments against the health and safety of transgender people?
To summarize its arguments, the Women’s Liberation Front (WoLF) asserts that interpreting anti-discrimination laws to protect transgender students from harassment will somehow result in the erasure of women and girls as a protected class. This argument mirrors the justification that Phyllis Schlafly gave for her opposition to the ERA: Any legislation that reduces discrimination based on sex or gender actually endangers women and girls by erasing important differences between men and women. “The vague, poorly written language of the ERA does not allow any distinction to be made between men and women – even when it makes sense to do so based on their biological differences” [emphasis in original]. In fact, Schlafly said, “[the] ERA would impact the privacy and safety of women and girls by removing gender designations for bathrooms, locker rooms, jails and hospital rooms” [emphasis in original].
WoLF was prolific in December, filing another amicus brief to the 11th Circuit Court of Appeals in the Florida case Adams v. School Board of St. Johns County. Again, WoLF argued that interpreting “sex” under Title IX to include gender identity somehow endangers women’s and girls’ safety. Over the past four years, WoLF has submitted several amicus briefs in federal court cases, spreading its rhetoric that protecting transgender students somehow comes at the cost of other students’ safety.
Self-identified feminist group Hands Across the Aisle makes a different argument in its amicus brief in the Boyertown case: that the very presence of “individuals with opposite sex body parts” in restrooms and changing rooms might trigger survivors of sexual assault. It must be said that transgender people experience incredibly high rates of sexual and physical violence and that forcing transgender students to use facilities that don’t match their gender identity leaves them at risk for harassment, assault, and a host of harms that result when students avoid using the bathroom throughout the day. In fact, the Boyertown case itself is stereotypical of what happens to transgender people when they use the bathroom: They are subjected to scrutiny of their bodies and behavior. In Boyertown, this scrutiny will rise to the level of our country’s highest court when the Supreme Court weighs whether to take the case on Friday.
What WoLF and HAA have in common with each other, and with many of the other organizations that filed briefs, is an ostensible desire to preserve the safety of students, particularly female students. But a closer look at the arguments and the lived experiences of cisgender and transgender students reveals that these organizations are actually asking the Supreme Court to preserve the comfort of cisgender students, not their safety. And the comfort of cisgender students often comes at the cost of transgender students’ safety and health—particularly when these cisgender students’ discomfort is, at its heart, simply anti-trans rhetoric and stereotypes.
Safety and comfort are not synonymous. Sometimes, our idea of comfort must be expanded in order to ensure safety, especially for the most vulnerable.