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Why I think we’re much further along in the movement to liberate women and girls from “gender identity" in the U.S. than it might appear.
July 4, 2023
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What follows are some remarks that I gave, slightly edited, during Feminist Question Time, a women-only international webinar produced by Women’s Declaration International, on July 1, 2023. The title was “Why I think we’re much further along in the movement to liberate women and girls from ‘gender identity’ in the U.S. than it might appear.” Video recordings of every episode of Feminist Question Time can be found on the YouTube channel of Women’s Declaration International (the live webinars are for women only, but men should feel free to watch the recordings if you’d like).
Hi, my name is Kara Dansky and I’m the president of the U.S. chapter of WDI. I’m here today to talk about updates in the US, or, as I prefer to call it, “Why I think we’re much further along in the movement to liberate women and girls from ‘gender identity’ in the U.S. than it might appear.”
I think the easiest way to understand this is to start with the basics of how the government is organized and then go through all the strides we think we are making in each of them.
This is basically how our government is arranged. We’ve got the administration (under the president), the legislature (which is Congress, consisting of the House of Representatives and the Senate), and the judiciary (the Supreme Court and all courts underneath them). Underneath all of that, we have 50 state governments, plus Washington DC. I assume that most countries are organized similarly at the national level and that every country has some form of state or provincial government organization.
As most people probably know, it’s the U.S. Democrats and the political left that is largely driving the “gender identity” train here. That’s absolutely true at the federal level and only slightly less true at the state level. It’s mainly the Biden Administration, the Democrats in Congress, and the Democrats in the states who are making life miserable for women and girls throughout the U.S. I say this as a life-long Democrat and a leftist myself. The courts are supposed to remain apolitical. What I want to do here is explain what’s been going on in all three branches of the US government and in the states, and why I think we’re making more progress than might be obvious.
Starting with the Administration, on January 20, 2021, on the very first day of taking office, President Biden issued Executive Order 13988, on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The executive order begins with this policy statement:
This statement is, in my view, in some ways completely straightforward and in some ways really annoying. The statements “Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love” and “Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports” seem entirely innocuous. Probably everyone agrees with those statements. I highlight two phrases in the policy statement here: “because how they dress does not conform to sex-based stereotypes” and “gender identity.”
I think probably everyone agrees with the statement “Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes.” In fact, that is already settled law. The Supreme Court already said this in a case called Price Waterhouse v. Hopkins back in 1989. In that case, a woman named Ann Hopkins was discriminated against at work because she refused to conform to her male colleagues’ expectations of “femininity” and the Supreme Court rightly decided that was illegal. In other words, this aspect of the policy statement was totally unnecessary.
But the other thing that’s interesting is that the order does not define the words “gender identity” at all, other than this oblique reference to nonconformity with sex stereotypes. If “gender identity” means nonconformity with sex stereotypes, we can all relax and go home. Most people don’t care if people deviate from sex stereotypes. But, as we have learned, that’s not at all what this is about.
The order continues:
To understand what the administration was doing here, you have to know a little bit about Bostock. That case was originally three cases. Two of the cases involved gay men who had been fired from their jobs because of their sexual orientation. The third case involved a man named Aimee Stephens who had been fired from his job because he claimed to be a woman. The three cases got joined together and the Supreme Court eventually ruled that employers can’t discriminate against employees on the basis of either sexual orientation or “transgender status.” To be clear, I hate the Bostock decision in large part because in deciding that people can’t be fired because of their “transgender status,” the Supreme Court said nothing about what “transgender status” means. Not a word. The Court simply assumed that “transgender status” is a coherent descriptor of a person.
But as much as I hate the Bostock decision, what I hate even more is what the Biden Administration said about it in this executive order. It said that the Bostock decision means that no one is allowed to discriminate against people on the basis of “gender identity.” The Bostock decision literally did not do this. I have read the decision countless times, searching for some place where the Supreme Court might have said this. It didn’t. In fact, the decision doesn’t even mention the words “gender identity,” other than in a single footnote citing an outside source. The other thing that’s really annoying about this order is its extension of the Bostock decision outside of the employment context. In the decision itself, the Supreme Court expressly stated that its ruling was limited exclusively to the employment context. So when the Biden administration says that the Bostock decision prohibits discrimination on the basis of “gender identity,” and that its reasoning applies outside the employment context, it is simply lying.
The order then went on to require US federal agencies to review all of their policies that pertain to sex and rewrite them to prohibit discrimination on the basis of “gender identity.” Sadly, throughout the first six months of 2021, federal agencies went on to do just that. The US Departments of Justice, Education, Housing and Urban Development, Health and Human Services, and others all went on to issue various memos and guidance documents that shredded the material reality of sex for purposes of federal administrative law.
I’ll explain the status of those various memos and guidance documents when I get to the part about the judiciary, but for now I want to say one thing about why I think all hope is not lost for women and girls with respect to federal administrative law, notwithstanding this horrific executive order from 2021. In June 2022, the Department of Education issued a proposed rule regarding Title IX, which concerns discrimination against women and girls in education, including sports. The June 2022 proposed rule would have, consistent with the executive order, completely redefined sex to include “gender identity” for all Title IX purposes. The American public pushed back hard. The Department received over 200K public comments to that proposed rule, more than any comments on any proposed rule in Department history. Our chapter provided a template for our signatories and supporters to use in submitting comments, as did the radical feminist organization the Women’s Liberation Front. By May 2023, the Department of Education had changed its tune. That month, it issued a new proposed rule that appears to have scrapped the idea of redefining sex out of existence. The new proposed rule would allow “gender identity” to override sex in certain cases, which is bad, but the Department appears to have walked back the idea of completely getting rid of the material reality of sex. Whatever Biden might be saying publicly, his own Department of Education is getting the point that Americans don’t like what he’s doing with respect to “gender identity.” I count that as a win for women and girls.
There’s one additional item with respect to the administration that I think is significant. In January 2022, the US Bureau of Prisons (which is part of the Department of Justice) updated its “Transgender Offender Manual.” This is the policy guiding which male prisoners in federal prisons get to be housed in the women’s prison on the basis of their claimed woman identities. This was a full year after Biden issued Executive Order 13988. The Bureau of Prisons had a full year to figure out how to let male prisoners self-ID into the federal women’s prison. It didn’t do it. To be clear, this Transgender Offender Manual isn’t good, because it allows some men to be housed with women on the basis of their claimed woman identities. But it does so on a case-by-case basis. We should, of course, oppose this, and we do. But the fact that the Bureau of Prisons came out with a new policy, a full year after the Biden executive order, declining to completely redefine sex to include gender identity even though that’s what the executive order told it to do, strikes me as significant.
Okay, on to Congress.
The main thing to focus on with respect to Congress here is the Equality Act, also known as the bane of feminists’ existence since 2015. I need to say at the outset that this bill is not like other legislation that exists in other countries that enshrines some form of gender in the law. For example, the UK Equality Act protects “gender reassignment” as a category but it also protects sex as a distinct category. I understand that there has been some debate of late about what the word sex means in the UK Equality Act, but my point here is just to acknowledge that sex, however defined, exists as a stand-alone category in the UK. My understanding is that Canada does something similar. I don’t like it that any of these laws protect “gender” in any of its forms, but this US bill, if enacted, would completely redefine sex out of existence for literally all purposes under US civil rights law, including education, housing, and public accommodations like toilets and changing rooms. In my view, protecting “gender” as a category while also protecting sex as a category is bad, but it’s slightly less bad than redefining sex out of existence, which is what the US bill would do, which would be a complete disaster for women and girls.
The other thing to know is that as bad as Biden’s executive order is, this bill is much worse because it reaches much farther. The president has limited authority under the US Constitution and his order only reaches federal administrative agencies. Congress has the authority to do much more damage.
This is how Congress summarizes the bill:
This is how the bill defines “gender identity:”
I’ll leave that there for now because all we really need to know about the bill itself for the present discussion is that it would obliterate women and girls as a sex class all over the US and for virtually all purposes. It’s that bad. What I really want to focus on here is the politics surrounding the enactment of the bill or, rather, Congress’s failure to enact it, and all the work that the US chapter of WDI has done to stop it.
This guy is named Charles Schumer. He is the Majority Leader of the US Senate, making him the most powerful member of Congress. I would argue that he is actually the most powerful person in the US government because Congress has much more authority than the president, by Constitutional design. So even though many people have never seen or heard of him, he’s the guy calling the shots. And he’s a Democrat.
As mentioned, this bill has been around since 2015. It has passed in the House of Representatives twice. It has never gotten to a vote before the full Senate. It most recently passed in the Democrat-controlled House of Representatives in February 2021. When that happened, it is not an exaggeration to say that US feminists went into a near panic. President Biden had vowed to get the bill passed within 100 days of taking office and we were very worried that he would succeed. At that time, both chambers of Congress were controlled by Democrats. The bill very quickly went to the Senate and it was scheduled to be heard before the Senate Judiciary Committee in March. We quickly took action. The US chapter of WDI had several meetings with a senior staffer in Schumer’s office. She seemed to be somewhat sympathetic to our arguments. We then submitted written testimony before the hearing was to take place. In our testimony, we made three basic arguments: (1) the nation hasn’t had the conversation we need to have before enacting this legislation, (2) men aren’t women even if they say they are, and (3) children are being harmed at the altar of “gender identity.” I submitted the testimony via email and I received written confirmation that it was received by every member of the committee.
We also sent a separate letter to Majority Leader Schumer. That letter had been circulated by WDI globally and it was signed by thousands of women all over the world. We’re deeply grateful to WDI for circulating the letter and to all the women who signed it.
The bill passed in the Senate Judiciary Committee in March. From there, it should have gone to the full Senate for a vote. But then something interesting happened: nothing.
That was March of 2021. 100 days from Biden taking office would have been sometime in late April or early May of 2021. Majority Leader Schumer had the authority, and plenty of time, to bring the bill before the full Senate for a vote at any time after it passed in the Senate Judiciary Committee and the bill most likely would have sailed through. He didn’t do it.
Not only did the bill not pass within the first 100 days of Biden taking office, it didn’t pass at all in 2021. We kept the pressure on. In January 2022, thanks to a donation from a very generous donor, we sent a copy of my book The Abolition of Sex to every member of the US Congress. We also developed an alternative to the Equality Act, which we called the Equality for All Act. The primary author of that bill was US country contact Kerri Bruss. Kerri can correct me if I’m wrong, but I think we drafted that bill in 2021. That bill would protect women and girls on the basis of sex; lesbians, gay men, and bisexual people on the basis of sexual orientation; and everyone on the basis of nonconformity with sex stereotypes. Every month throughout 2022, we encouraged US signatories to send a copy of the bill to their House members and Senators. As 2022 wore on, we became a bit mystified that Schumer wasn’t taking action on the Equality Act. Finally, by the end of 2022, the bill appeared to be dead.
So, what happened? You may remember that I referenced the Department of Education’s 2022 proposal to redefine sex out of existence for Title IX purposes. The last day to comment on that proposal was September 12, 2022. On that day, a group of Senate Democrats sent a letter to the Department, praising their proposal to redefine sex out of existence. There’s nothing unusual about that. But what was unusual was that the letter was signed by 19 Senate Democrats. There are 50 Democrats in the US Senate. If 19 of them signed that letter, that means that 31 didn’t. By September 2022, fewer than half of US Senate Democrats were willing to put their names on a public letter encouraging the Department of Education to redefine sex out of existence. What might that say about their views of the Equality Act? Did our relentless advocacy have anything to do with it?
What’s more, the US Senate did pass a different bill in November 2022. It’s called the Respect for Marriage Act, and it protects the legal marriages of same-sex couples. Twelve Senate Republicans signed that bill, among them some of the most conservative Republicans in the country. If Majority Leader Schumer could get so many Senators to support marriage equality, why couldn’t he get similar support for “gender identity?”
Earlier this year, we declared the Equality Act to be dead. In doing so, we said that we’re not out of the woods yet because a Member of Congress could bring it back. But we said we didn’t think that would happen because we didn’t think the Democrats in Congress were stupid enough to do that. The death of the Equality Act should have been a major embarrassment for the President who not only could not get the bill passed within 100 days of taking office, but couldn’t get it passed within two years of taking office.
Well, it turns out that we were wrong and some Democrats are stupid enough to bring the bill back. It came back in this past month. But interestingly, it only has four sponsors and Schumer hasn’t said a word in support of it. I was recently talking with a friend who knows a lot about the inner workings of Congress. She agrees that the Democrats are idiots for bringing it back and that it has no chance of going anywhere. It won’t get a hearing in the House of Representatives because that body is now run by Republicans. She thinks the Democrats aren’t quite stupid enough to bring it to a hearing in the Senate. Having embarrassed the President once by failing to get the bill passed during the first two years of his administration, they probably aren’t stupid enough to do it again. But who knows. I’m meeting this coming Friday with some friends about how to get me a shot at testifying against the bill if it does get a hearing. I hope it doesn’t get a hearing because I want this bill to die a final death. But on the other hand, I hope it does get a hearing because I would relish the opportunity to tell the Democrats in Congress exactly what I think about their stupid bill, live and on camera.
The president likes to blather on about getting the Equality Act passed in his state of the union addresses and elsewhere, but the president likes to blather on about lots of things. Regardless of what he is saying in public, the situation looks very different on the ground.
One last thing about the Equality Act. One reason it is so astonishing that it hasn’t passed is because of the support behind it.
This bill has the strong support of not only the Human Rights Campaign, but also of HRC’s coalition of more than 500 major corporations. HRC put this coalition together for the specific purpose of getting this bill passed. The coalition includes some of the richest and most powerful corporations in the world, including Amazon, Apple, Bank of America, Capital One Financial Corporation, and Comcast. This is what we’ve been up against this entire time. We radical feminists, mostly volunteer and poorly funded, with no political power and no public face whatsoever, have been up against some of the richest and most powerful institutions in society and somehow, miraculously, we’re not dead yet.
On to the Judiciary.
As mentioned, the Supreme Court decided Bostock v. Clayton County in 2020 and the Biden Administration has been using it to shred women’s rights since taking office in 2021 with a slew of executive orders, memos, and guidance documents that tell federal agencies to redefine sex to include “gender identity” for nearly all purposes under federal administrative law. I’m happy to report that Biden’s efforts to shred women’s rights aren’t going very well for him in the US courts.
In 2022, a federal court in Tennessee said that all of the orders, memos, and guidance documents were invalid because the administration had failed to follow applicable procedural law and blocked them all from taking effect in 20 states. That’s good and that matter is currently on appeal. The US chapter of WDI had filed a friend of the court brief in the district court in that case and the Women’s Liberation Front filed a friend of the court brief on appeal.
This year, a federal court in Texas ruled that one particular Biden memo was substantively flawed as well. One of the Biden memos concerned the Affordable Care Act and it said that medical practitioners who receive funding under the Act aren’t allowed to discriminate against people on the basis of gender identity. In this case, a doctor had a male patient and the doctor was concerned that his male patient might have prostate cancer. The male patient said, essentially, “I identify as a woman, therefore I do not have a prostate, therefore I cannot have prostate cancer.” Literally. But the doctor received federal funding under the Act, so he was worried that referring the man for prostate cancer testing would constitute unlawful “gender identity” discrimination, so he was unable to provide proper treatment to his patient. So he and some other doctors challenged the Biden administration’s guidance on this. The court agreed, ruling that sex means sex under the Affordable Care Act and that doctors can provide sex-appropriate treatment. That’s good, but there a reason it’s even better, which is that the Affordable Care Act defines sex by reference to Title IX. That means that this court also ruled that sex means sex under Title IX, which is great. That matter is also on appeal, and we have filed a friend of the court brief there too.
There are a few other recent cases worth mentioning, even though they don’t involve the Biden Administration. In one, a panel of the 9th Circuit Court of Appeals ruled that a beauty pageant that limits participation to women are allowed to exclude men, including men who claim to have woman identities. Probably no one here today likes beauty pageants (I know I don’t), but that’s not the point here. The point here is that this is a strong indication that women’s organizations can legally exclude men, including men who claim to have woman identities. The Women’s Liberation Front had filed a friend of the court brief in that case, and it was cited in the court’s opinion.
In another, the 11th Circuit Court of Appeals ruled that schools are allowed to maintain single-sex bathrooms. That’s really good. But what’s really amazing about that case is that the losing party (a woman who wanted to use the men’s bathroom on the basis of her claimed man identity) was represented by Lambda Legal – an organization so corrupted by “gender identity” that it may as well be the ACLU. Lambda Legal chose not to petition the Supreme Court to review the decision, which is huge because it suggests that Lambda Legal knows it’s losing. The Women’s Liberation Front had filed a friend of the court brief in that case back in 2018.
Finally, there is a case currently pending in the 4th Circuit Court of Appeals where a lower court had ruled that states are allowed to maintain single-sex sports. Our chapter has a friend of the court brief pending there too. The thing that’s most astonishing about that case is that the lower court ruling was made by a judge who had been appointed by President Clinton. We can all think whatever we want about President Clinton, but the point here is that to the best of my knowledge, this is the only legal ruling entered by a Democrat-appointed judge that preserves the material reality of sex in a way that benefits women and girls.
The only thing left to say is that we’re making strides in the states too. Thanks to the volunteer women who make up our state legislative action team, we have submitted countless pieces of written testimony in support of bills to protect women and girls as a sex class, in support of abortion rights, and in opposition to efforts to erase women and girls and/or to harm children. Over the past couple of years, our team has become extremely organized, focused, and fast about analyzing bills, figuring out our positions on them, and writing and submitting testimony. And I’m very happy to report that there are increasing numbers of Democrats who are voting in alignment with our principles at the state level.
Although it may not be obvious, we have made huge strides. The Biden Administration has so far been unable to persuade either Congress or the Courts that it’s a good idea to throw women and girls under the bus at the altar of “gender identity,” and we think we have had a lot to do with that. America is waking up to the horrors of “gender identity,” and they’re not having it.