Imagine you’re a surgeon. Many of your patients are women who need a mastectomy to excise breast cancer. You’ve also removed tissue from teen boys with gynecomastia. One day a 14-year old girl and her parents darken your door. They want you to remove the girl’s breasts because, they say, she is a “transgender boy.”

As a surgeon, you know that the procedure would destroy function by killing erotic sensation that most women’s breasts possess and the ability to breastfeed in the future. (Apologies for the remedial mammary lesson – many of my subscribers are gay men.) This makes the operation different from removing boys’ excess chest tissue. The operation would also carry all the typical risks of mastectomy, like nerve damage and a long recovery period. Finally, you know this treatment for supposed “gender dysphoria” is not evidence-based. So you tell the family you won’t remove her breasts.

Then your state’s Attorney General charges you with violating the girl’s civil rights.

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New York’s AG Letitia James wants surgeons to fear this scenario. But her threats are empty. In this post I’ll explain why. It’s not intended as legal advice but rather as a public service announcement. Any doctor who’s worried should consult a lawyer with this link in hand.

DISCLOSURE: I used to work for James. She fired me on Jan. 22 because my public critique of trans legal arguments “undermines [James’s] mission, work and efforts (including litigation positions), and credibility.”

The Warning

Days after retaking office in January 2025, President Donald Trump issued an executive order directing federal officials to defund hospitals that practice pediatric gender medicine (PGM). James and 22 other AGs sued to block implementation of the order. They secured a temporary injunction, but nevertheless many hospitals bailed on PGM.

NYU Langone was caught cancelling puberty blocker appointments, which triggered a march through Midtown Manhattan on Feb. 3, 2025, at which the actress Cynthia Nixon announced her daughter and niece were trans, as well as her daughter’s best friend and her best friend’s daughter.

That same day, James issued a Dear Colleague letter. The New York Times reported she sent it to “health care providers and other organizations.” It read:

Regardless of the availability of federal funding, we write to further remind you of your obligations to comply with New York State laws, including those that prohibit discrimination against individuals based on their membership in a protected class, such as sex, gender identity or expression, sexual orientation, race, creed, color, national origin, citizenship or immigration status, military status, disability, or marital status. See, e.g., N.Y. Exec. Law § 296(2); N.Y. Civ. Rights Law § 40-c. Electing to refuse services to a class of individuals based on their protected status, such as withholding the availability of services from transgender individuals based on their gender identity or their diagnosis of gender dysphoria, while offering such services to cisgender individuals, is discrimination under New York law.

A few weeks later James referred to Trump’s order itself as “discriminatory.” She has since continued to suggest that civil rights law requires doctors to inject kids with the hormone of their choice. For example, in an August 2025 lawsuit against the Trump administration, New York and other states argue:

if providers cease providing [PGM] …, they risk running afoul of many Plaintiff States’ anti-discrimination … laws. Those laws prohibit discrimination on the basis of sex, gender identity, gender expression, transgender status, diagnosis of gender dysphoria, or intersex status …

Even though plenty of New York healthcare providers don’t transition children, James has never charged any of them with human rights violations. It seems she doesn’t want to test her theory.

What New York Law Actually Says

New York bans discrimination on the basis of “gender identity” by statute and in its constitution. While the latter point is particularly embarrassing, it doesn’t make a difference to the issues in this post.

The Text

New York Executive Law section 296:

It shall be an unlawful discriminatory practice for any … place of accommodation … because of the … gender identity or expression … of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof…

Needless to say, the law does not explain what gender is. But here’s what it says about gender identity or expression:

The term “gender identity or expression” means a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being Transgender.

Sidenote: in trans ideology, gender identity and gender expression are different. The former is subjective (how you see yourself), the latter objective (how others see you). But NY law crunches them together, making it hard to figure out which bathroom to use. Go with the urinals because I have short hair or hold it in because I don’t have a gender identity?

Section 296 is a “public accommodations” law – the sort of statute that ensures black people can access hotels and Brits can’t be kicked out of Irish pubs on St. Patrick’s Day in Queens. Extending the protections based on “gender identity or expression,” if it means anything, must mean business owners can’t refuse to serve someone based on the color of their shirt or whether they say they are “Transgender.”

Applying the statute to doctors means they can’t refuse to X-ray a man’s elbow because he says “Call me Isabelle.” There’s no medical reason not to X-ray him, just as there’s no medical reason to deny a black person an X-ray when a white person with the same presentation would get one.

But James suggests doctors must treat the “Transgender” patient the same as a “cisgender” patient when there is a medical reason not to, e.g., the former doesn’t have cancer while the latter does; the girl’s breasts have functionality and the boy’s do not. This is just inane, like calling a restaurant racist because it refuses to serve a black person who ordered raw chicken. No legislator ever intended civil rights laws to override a doctor’s medical judgment.

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That said, “anti-transgender discrimination” is the same argument the ACLU advanced in its challenges to state bans on PGM – and it won several victories before the Supreme Court wiped them out in Skrmetti. Those lawsuits were brought under the federal Constitution, so Skrmetti doesn’t preclude a different ruling under NY law. (Indeed, some challenges to PGM bans continue in state courts.) But I think judges would see this version of the argument much more clearly. Instead of fighting to allow doctors to practice, as the ACLU does, James is trying to force doctors to prescribe drugs or perform surgery. It’s blatantly authoritarian.

The only thing that could potentially strengthen James’s argument is precedent. But while NY state courts have indulged in a bit of gender woo, they have not lent support to the idea that doctors must block puberty on demand.

How New York Judges Interpret Gender Identity Discrimination

Whatever “gender identity discrimination” means to New York courts, it doesn’t mean “withholding estrogen from autistic boys is bigotry.”

I wrote about New York’s GI laws in 2024. I found that only one appellate court had weighed in, and it did so in a way that treated GI as a belief, not a fact. In other words, it protected a man’s right to think he’s a woman, the same way a Druid can’t lose her job for believing in magic. The court did not say he was entitled to be treated as though he were a woman. That would be like a Druid demanding her coworkers pretend to be spellbound.

I concluded that the true meaning of “gender identity discrimination” in NY was up in the air but could turn on a few disputes making their way through the legal system at the time.

In one of those matters, a man filed a claim with the state’s Human Rights Division that Hooters refused to hire him because he was “transgender.” That seems to have vanished – perhaps he dropped it or Hooters quietly paid him off. Another pair of lawsuits, brought respectively by James and a “women’s” roller derby team called The Roller Rebels, challenged a Nassau County (Long Island) law that blocked co-ed sports teams from pretending to be all-female when using public facilities.

That litigation has become tangled. The trial court upheld the law in a final judgment on October 6, 2025. Two days later, a unanimous 5-judge panel of the Second Department (an appellate court based in Brooklyn) granted the Roller Rebels a preliminary injunction (PI) in the same matter. This is confusing, and the Second Department didn’t help matters by failing to acknowledge the recent judgment. It had heard oral argument less than two weeks before, suggesting the judges may have rushed this decision out the door.

Meanwhile, James is still litigating her similar lawsuit in the trial court. She also filed an amicus brief in the Roller Rebels case.

In its pro-trans ruling, the Second Department chastises the trial court for “improvidently exercis[ing] its discretion in denying the motion for a” PI. It maintains that “Courts must construe these [civil rights] laws ‘broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible[.]’” For this idea it cites Syeed v. Bloomberg, in which a woman sued her employer for sex discrimination after it allegedly promoted a less qualified man over her because, it told her, the job wasn’t designated as a “diversity slot.” This neatly encapsulates how “gender identity” advocacy stands on top of pro-woman precedent to hurt women.

That paragraph of the decision reads like a preamble to explaining why the Roller Rebels have a “likelihood of success on the merits” (the first prong of the test for a PI). But there is no reasoning on the Roller Rebels’ likelihood of success, i.e., why their case is good. It’s a conspicuous void. Perhaps the Second Department wasn’t sure how to talk about this point because, again, the claim had already failed on the merits in the trial court.

The Second Department holds the state law “irreparably harms” the Roller Rebels because it requires them to be honest:

While the County suggests that the plaintiff can use its facilities by designating itself as a mixed-sex league, which is permitted under the local law, this would change the identity of the league and would force its players to identify themselves as playing in a mixed-sex league.

These cases seem destined to land before New York’s highest court, the Court of Appeals. Until then, that Second Department decision stands as a GI ruling that can’t be extended beyond the context of men seeking to play women’s sports because it doesn’t explain what makes a GI discrimination claim successful.

But Wait, What About …

You may recall that President Joe Biden tried to force doctors to practice gender medicine under the sex discrimination clause of Obamacare. His regulations, which relied on the dreaded Bostock, were struck down in court. James could emulate his arguments anyway since she’s enforcing a different law – but it’s even more attenuated than her GI argument. None of Biden’s Bostock-based trans discrimination arguments prevailed in court (except in a curious Alabama decision about school bathrooms, but that was reversed on appeal).

California AG Rob Bonta just sued a children’s hospital for dropping its PGM practice. But that’s not a discrimination case. Bonta is arguing the hospital violated the terms of its merger with another hospital, which apparently required it to keep transing kids unless the AG granted it permission to stop.

Last week a Westchester jury awarded $2 million to a detransitioner who’d had a mastectomy at age 16. A friend told me about a conversation she’d had with a lawyer – he said it was wrong to sue gender doctors in New York because they didn’t have a choice. Refusing to practice gender medicine, he said, was illegal in that state.

So apparently Letitia James’s disinformation campaign is working. I wrote this post to counter it. State law doesn’t require New York doctors to trans kids. When they inject a teenage lesbian with anabolic steroids or block a boy’s puberty because he likes dolls, that’s on them.

Well, I -- I’m sorry. You don’t think we should have an operating definition of “sex” in Title IX?

–John Roberts, Chief Justice of the Supreme Court of the United States (2026)

​In 2021, Kara Dansky published The Abolition of Sex, in which she argued the ACLU was using strategic lawsuits to replace “sex” in law with “gender identity.” This would eviscerate women’s rights to sports and spaces, she explained, since a person’s gender identity is whatever they say it is. In 2024, I compared the ACLU’s sex/gender identity switcheroo to a magic trick.

On Jan. 13, 2026, the ACLU’s Joshua Block told the US Supreme Court that he was not trying to replace sex with gender identity. (“I’m certainly not saying that sex means gender identity.”) Rather, he wants to replace a binary, biological view of sex with “sex-based characteristics,” including but not limited to “limp wrists.” This tracks how the ACLU construes sex in a 2025 lawsuit about passports, Orr v. Trump. There, it lists gender identity as one of at least six “attributes” of sex.

In this post I’ll explain why the ACLU’s new theory of sex would gut sex-based rights against discrimination. In short, the ACLU’s trans-power toolkit gives defendants a bundle of new tricks with which to thwart “cisgender” plaintiffs.

First I’ll provide background on Hecox and BPJ, the sports cases that brought the ACLU to SCOTUS last week, and analyze the trans-rights lawyers’ stunning remarks about what sex is. Then I’ll explore the ramifications for civil rights law if the ACLU gets its way.

The Road to DC

In 2020, Idaho became the first state in the US to protect girls’ and women’s scholastic sports by passing a law that kept males out of them. Many states followed. The ACLU and other trans rights orgs sued.1 In Idaho the ACLU represented Lindsay Hecox, a male college student who used cross-sex hormones but hadn’t been puberty-blocked. In West Virginia it represented Becky Pepper Jackson (known in court as BPJ), a puberty-blocked boy who is now 15.

Both Hecox and BPJ raise the question of whether protecting girls’ sports violates the equal protection clause of the 14th Amendment of the Constitution, either because they discriminate against “transgender” people (Team Trans backed off this point at oral argument) or because they impermissibly discriminate by sex. BPJ also contends the state laws violate Title IX, which guarantees equal opportunities at school. Both male athletes prevailed at the appellate level in the trans-credulous Fourth and Nine Circuits, respectively.

The Supreme Court heard back-to-back arguments last week. The ACLU’s Joshua Block handled BPJ while his co-counsel Kathleen Hartnett, an elite biglaw partner, argued for Hecox. Longtime readers might recall Hartnett’s role in an Alabama judge-shopping scandal. Having apologized profusely for her slippery behavior down South, she’s now back in the saddle arguing that trans-identified men hold a “disadvantage” compared to women “if they happen to have larger bones and less testosterone or muscle to drive those bones.”

The flipside is why I’m such an unstoppable force on the rugby field. I have average T levels for a woman but spindly bones.

Hartnett and Block only advocated for inclusion of males who hold no athletic advantage over females thanks to disabling medical interventions. They want SCOTUS to dismiss Hecox as moot (he promises he won’t play women’s sports anymore) and kick BPJ back down to the district court for fact-finding on the science of puberty blockers. That’s an effort to delay the inevitable, since studies show boys have athletic advantages over girls well before puberty.

Note: sex discrimination laws in the US protect members of both sexes. Men can sue for the same sort of hostility, harassment, unequal treatment or denial of opportunities as women can. But when it comes to school sports, it’s almost always girls/women who need the law’s help.

Below I’ll focus on what oral argument told us about sex. For my reactions more broadly, see my tweets from the past week.

“Don’t Give Definition of Sex”

Team Trans came in with a plan not to define “sex.” Up first, Hartnett:

We’re not asking for a particular definition [of sex] or even really an exception [for trans-identified males from the definition of sex].

Justice Samuel Alito, who homed in on the ACLU’s abuse of the word gender in his Skrmetti concurrence, comes prepared. He performs his best impression of a based lesbian:

ALITO: Do you agree that a school may have separate teams for a category of students classified as boys and a category of students classified as girls?

HARTNETT: Yes, Your Honor.

ALITO: If it does that, then is it not necessary for there to be, for equal protection purposes, if that is challenged under the Equal Protection Clause, an understanding of what it means to be a boy or a girl or a man or a woman?

HARTNETT: Yes, Your Honor.

ALITO: And what is that definition? For equal protection purposes, what does -- what does it mean to be a boy or a girl or a man or a woman?

HARTNETT: Sorry, I misunderstood your question. [...] We do not have a definition for the Court.

Alito tries again:

ALITO: Well, how can you – how can a court determine whether there’s discrimination on the basis of sex without knowing what sex means for equal protection purposes?

HARTNETT: I think here we just know -- we -- we basically know that the – that they’ve identified pursuant to their own statute, Lindsay qualifies as a birth-sex male. And she’s being excluded categorically from the women’s teams as the statute -- so we’re taking the statute’s definitions as we find them and we don’t dispute them. We’re just trying to figure out, do they create an equal protection problem? [End of answer.]

OK. Keep figuring, Kathleen Hartnett. Sorry you weren’t able to steer your case into a more sympathetic Supreme Court.

Later, Joshua Block pleads:

However the Court resolves this case, I -- I really urge the Court not to do it based on a definition-of-sex argument. We are not disputing in this case that West Virginia can have its definition of sex. Our argument is it’s using this definition to inflict discrimination and deny equal athlete opportunity. But we are not saying their definition of sex is wrong.

Block doesn’t challenge the sex binary except to say it impermissibly discriminates against trans people. But isn’t that the whole ballgame? “It’s totally fine if you want to say girls are female, I’m just going to sue you every time you do.”

Block doesn’t want Title IX to “preempt[] a state’s ability to say, you know, actually, we are most concerned about discrimination that happens through gender roles [rather than sex].”

Yes, let West Virginia protect girls’ opportunities but allow New Jersey to split its soccer leagues into “kids who hunt deer for their family” and “kids who gather berries.” It’s called federalism.

Block thinks words in a statute should only be defined if the purpose of the statute is to define the word:

“I don’t think the purpose of Title IX is to have an accurate definition of sex. I think the purpose is to make sure that sex isn’t being used to discriminate by denying opportunities, just -- just as I don’t think we need to -- to define race in order to enforce Title VI.”

We don’t need to define race because no one has ever brought a lawsuit based on the idea that race means “what type of music people listen to.” Words in statutes often go undefined until people disagree about what they mean. Then a court defines the word. Block is telling the justices not to do their job. (This paragraph is so basic I fear I sound condescending.)

Justice Elena Kagan asks Block how she can write an opinion that lets states make different decisions about how to divide sports teams. Block answers, in part: “Don’t give definition of sex.” Again, there’s an asterisk – he will keep suing states that use definitions he doesn’t like. So SCOTUS would be fueling conflict if it took his instruction. Generally SCOTUS answers questions with finality to resolve conflict, so litigation can cease. (Apologies again for the middle school civics lesson.)

Alito finally breaks through the trans stonewalling:

ALITO: Title IX prohibits discrimination on the basis of sex. It’s a statutory term. It must mean something. You’re arguing that, here, there’s discrimination on the basis of sex.

And how can we decide that question without knowing what sex means in Title IX? I mean, it could mean biological sex. It could mean gender identity. It could mean whatever a state wants to define it to mean but it has to mean something.

How can we decide that without knowing what the statutory term means?

BLOCK: Well, I -- I think there are a whole range of sex-based characteristics that can give rise to discrimination. I think if someone said I’m going to discriminate against anyone who acts in a feminine manner, like anyone with limp wrists, I don’t care who they are, but I’m going to discriminate against them, like I think that would be sex discrimination. It would be sort of gender presentation. I would -- but I wouldn’t say that’s not covered by Title IX.

[...] Our argument is that there’s a group of people who are assigned male at birth who -- for whom being placed on the boy’s team is harmful, right? [...]

A few minutes later, Chief Justice John Roberts regains his composure after silently cracking up over the “limp wrists” line.

ROBERTS: Well, I -- I’m sorry. You don’t think we should have an operating definition of sex in Title IX? Now, I understand the idea that – well, the question then becomes not whether or not there’s discrimination on the basis of sex but whether there’s discrimination on the basis of whatever characteristic you think should be included in a definition of sex.

Now when it’s used as a statutory term, I’m not sure you have that kind of flexibility. The question then would be instead what does Congress thinks -- think the words -- word means?

BLOCK: Well, Your Honor, I guess I’d say I think Congress prohibited discrimination based on sex. I don’t think --

ROBERTS: Then -- I’m sorry, go ahead.

BLOCK: Yeah. And, so -- so I don’t think that just as I don’t think Congress adopted a definition of -- of race, you know, in Title XI in order to prohibit discrimination on the basis of race. I think -- I think we’re not trying to police the accuracy of the terminology that’s being used.

All I’m saying is that what’s being prohibited is using this classification to discriminate, not --

ROBERTS: So, you – well, but without really knowing what the distinction is?

BLOCK: Well, I -- I -- you know, I think -- I don’t think the examples I’ve given about sex-based characteristics, like, fall outside the common understanding of things that are related to sex.

ROBERTS: Well, related to sex. I -- I guess what you’re saying is then we do have to accept for your position that we’re not dealing, when -- when Congress says sex, we’re not dealing with biological sex but we’re deal [sic] with other characteristics that people might associate with sex?

BLOCK: No, no, no. I think for this case you can accept for the sake of this case that -- that we’re talking about what they’ve termed to be biological sex. [...]

When Block says “no, no, no” he doesn’t mean Roberts is wrong. Roberts has, in fact, picked him apart like a clock (politely). Block is saying he would like to maintain the pretense, for the record, for now, that he doesn’t care what sex is. Nevermind that he is petitioning the highest court of the land because he cares very much about West Virginia acting on its definition of sex …

If you were hoping the justices would see right through this sweaty sophistry, I regret to quote you Justice Neil Gorsuch:

GORSUCH: So we don’t have to say anything about the matter [of what sex is]. You’re willing for us to proceed on that assumption [that the parties don’t contest the meaning of sex even though they do]?

BLOCK: Exactly. Just like in Bostock, I think you can proceed for argument’s sake without taking a definitive position here[.]

In Bostock (2020), which Gorsuch authored, the Court relied on a definition of sex that the parties would seem to agree on, without declaring it was correct. The ruling’s ambiguity on that and other points led to a nightmare of federal over-reach and multistate legal brawls in response that only ended because Democrats lost the White House. Trans rights lawyers are still thumping Bostock in private lawsuits today, arguing it holds all sorts of meanings that the Court almost certainly did not intend. This moment at BPJ oral argument crystallizes Gorsuch’s culpability for that chaos and hints he might want to double down. (Kara Dansky writes about a different Gorsuch exchange that also bodes poorly.) Hopefully this time, he won’t be able to attract four of his colleagues to his view.

Team Trans came to 1 First Street determined to say nothing about sex, it seems. But then Alito kept squeezing and shaking them so Block admitted he thinks sex is about limp wrists. He didn’t misspeak – this general idea is present in Orr v. Trump. The ACLU really does want “sex” to mean “sex-based characteristics” like gender roles and gaydar signals.

What will happen if the ACLU gets its way?

The End of Women’s Sports

Title IX:

“​​No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance [...]”

Since sports are competitive and males have an advantage, girls and women can only participate in the same ways boys and men can if they’re separated. This epiphany didn’t strike all educational leaders overnight in 1972 and instantly result in fairness. Female students had to lobby and sue over and over for years to establish this principle and force schools to comply. Schools dragged their feet: they claimed boys were more interested in sports, or football was naturally a more expensive program that should lead to schools spending more on boys.

But imagine the ACLU’s view of sex prevails in BPJ/Hecox. SCOTUS declares the word “sex” in civil rights laws doesn’t refer to the male/female biological binary. Then why are there two teams? Where does the number two even come from?

At BPJ oral argument, Block argued the statute and its implementing regulations, from the Department of Education, don’t require two teams:

I wouldn’t decide this by assuming that Title IX provides a right to single-sex teams.

In the regulations, single-sex teams are optional. They’re not mandatory. And the -- in addition to the -- we’ve been talking about the regulations, but on the ground, the way this plays out in practice is you have a 1979 policy statement, a sub-regulatory document, that has a complicated test for determining when a sex-separated team is or is not required.

Schools offer female-only teams not because the regs literally dictate them but because they’re afraid of getting sued based on an interpretation of Title IX. If sex doesn’t refer to a male/female binary, those lawsuits will be harder to bring and easier to defend.

First, how will girls state their claim? They can’t simply say, “the school district denies girls the right to participate in sports” because the meaning of the term “girl” isn’t clear. Does it mean female gender identity? Is it too “imprecise” to be taken at face value? (I’m drawing on other ACLU lawsuits.)

So the girls would have to say:

The school district denies students with weak wrists the opportunity to play sports because there is a strong correlation between that and having ovaries, which in turn seems somehow connected to losing at sports. Weak wrists are a sex characteristic under Title IX because they are correlated with an assignment of female at birth, which is a characteristic based on sex, a word that is imprecise and should be avoided.

Then the girls would have to prove all that at trial. Compile studies that specify the athletes’ birth certificate sex, bring in an orthopedic hand specialist to testify at $500/hour …

Meanwhile, the school district would have a bevy of defenses at its disposal.

We didn’t discriminate against anyone by sex. Twenty percent of our athletes identify as female, including cheerleading, and that matches the percentage of the student body that identifies as female.

We didn’t spend less money on students with delicate wrists. Look, our diving team is all gay guys!

How could we discriminate against kids with ovaries? We haven’t conducted genital inspections to determine who has ovaries.

Imagine everyone agrees that hormone levels are grounds for distinguishing kids (since the ACLU will hold its fire on that, for now). Then all athletes will have to undergo hormone testing. It would be discrimination to assume an athlete’s hormone levels based on their … what’s the word … At the middle school level, there might be wide variation among boys’ T levels, and they could rise sharply during the school year. Should there be three teams? Four? Leagues might decide not to bother with hormone-segmentation until older ages, in more “serious” competitions.

The ACLU has named sexual orientation as a component of sex. Since androphiles are underrepresented in sport, could they sue for their own division? Then lesbians would be forced to compete against straight boys in the gynephile category. Even in a league that also factored in hormone levels, lesbians would likely lose softball and field hockey as those sports tend to exclude straight girls.

The “sex-related characteristic” scheme is so amorphous and confusing that courts would hesitate to impose strict rules on school districts. Any lame attempt at equitudiness would pass muster.

The good news for female athletes is that right now, at least, nonprofit law firms are willing to fight for them in court. What about female workers?

The Great Masculinization

A few months ago, Helen Andrews dominated the internet by blaming society’s ills on the “feminization” of the workforce. She suggested the reason women gobbled up so many jobs is sex discrimination law – the example she gave was guys having to take down porno calendars from their office walls or else be fired. Not so convincing but anyway, I have advice for Andrews: donate some of that clout to the ACLU because it’s fighting for the discriminatory workplace of your dreams.

Versions of the problems I highlighted above for girls’ sports would bedevil anyone suing an employer (or landlord, or healthcare provider) for discriminating against them on the basis of their sex. And all the nonprofit law firms that traditionally fought for women’s equality in the workplace are allied with the ACLU, i.e., on board with bastardizing sex discrimination law.

By the way: classic sex discrimination law can protect gay and gender-bending people. The only sex-related right it theoretically leaves out is the right to make everyone pretend you are not the sex you are (by “using your pronouns” and letting you into whatever sex-specific spaces you want). But that’s everything to trans rights activists.

Joshua Block conjures a mustache-twirling villain who would “discriminate against anyone who acts in a feminine manner, like anyone with limp wrists, I don’t care who they are.” Of course Block’s alluding to gay men but he can’t say “gay” or “men” for religious reasons (and he certainly can’t summon a hypothetical female victim).

The portrait doesn’t make sense. If a boss, landlord, or doctor is homophobic then he very much cares who the delicate-wrist haver is – that is, he cares whether the person is male or female. Block’s one example of a valid sex discrimination lawsuit by a “cisgender” person will never actually happen. The ACLU doesn’t take this area of law seriously and appears eager to sacrifice it on the altar of trans ideology.

Far from redefining gay identity, “queer” radicalism may actually have to define itself in opposition to it.

–Andrew Sullivan (1993)

Welcome to 2026. The word “queer” has made it to the mainstream. Queer theory’s friend, trans ideology, dominates America’s hospitals and schools. But how is queer theory doing as an intellectual movement?

This is Part 3 of a trilogy on queer theory. In Part 1 I introduced its lesbian founders, Gayle Rubin and Judith Butler, who rebelled against feminist orthodoxy in the 1980s. In Part 2, focused on the hetero Eve Kosofsky Sedgwick, I broke down these women’s weird crush on gay guys and explained why their ideas took root on campus. Now, moving into the 21st century, I’ll unpack queer theorists’ antipathy toward gay marriage and their cooptation by trans ideologues. Throughout, I’ll continue to flag pedophile allyship.

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But first, a flashback.

Michel Foucault (1926-84)

Michel Foucault was a gay French philosopher whose work questioned prevailing morality, including laws and norms against sex with children. He’s known for promiscuity and rumored to have raped boys aged 8-10 in Tunisia. He thought power, and therefore social reality, was constructed out of words and ideas (“discourse”). The upshot: reality doesn’t come from nature. Ideas don’t prevail simply because they are correct.

Foucault undermined conventional views by purporting to expose where they came from. Stanford Encyclopedia of Philosophy:

He does not claim that sex, understood as the categories of maleness and femaleness, was invented in a particular historical period. He rather analyses the ways in which these categories were founded and explained in discourses claiming the status of scientific truth, and how this allegedly “pure” explanation in fact constituted these categories so that they were understood as “natural.”

All this talk about the supremacy of ideas over nature was very affirming to bookworms. Foucault became a rock star within academia. Younger scholars wanted to be him. Rubin, Sedgwick, and Butler were especially smitten. They cited him liberally; he’s considered a major influence on queer theory.

Foucault’s dark sexiness and indifference to women represented the polar opposite of prudish 1980s feminism. As the founding queers revolted against anti-porn crusaders, they lavished attention on the denizens of Foucault’s world: drag queens, dying poets, pedos and dungeon dwellers.

In the 1990s, the fourth wall shattered as a real live gay man sat down at their lunch table: Michael Warner, an English professor who’d built his career in early US literary studies.

“Fear of a Queer Planet: Queer Politics and Social Theory” (1993)

In 1993, Warner edited Fear of a Queer Planet. His introduction, a jumble of academic jargon, uses queer and gay as synonyms when applied to individuals (gay people are queer, queer people are gay) but antonyms when applied to “politics” (gay politics is basic, queer politics is daring and intellectual).

While gays and queers are the same population, they make different choices about labels. “The preference for ‘queer’ [over gay] represents … a more thorough resistance to regimes of the normal.” Warner later allows that “not all gays and lesbians share this [essay’s] view of the new queer politics.” But he never says explicitly that some gays aren’t queer. (He also doesn’t allude to heterosexual queers.) Just like Sedgwick, he seems to intuit that queerness needs gay people – every last one of us with no defectors – to anchor itself in reality.

Warner doesn’t even consider the idea that gay/queer people are born that way. Their sexual orientation is either imposed by others or it’s a choice:

Identity as lesbian or gay is ambiguously given and chosen, in some ways ascribed and in other ways the product of the performative act of coming out[.]

Warner explains how someone becomes queer:

Every person who comes to a queer self-understanding knows in one way or another that her stigmatization is connected with gender, the family, notions of individual freedom, the state, public speech, consumption and desire, nature and culture, maturation, reproductive politics, racial and national fantasy, class identity, truth and trust, censorship, intimate life and social display, terror and violence, health care, and deep cultural norms about the bearing of the body. Being queer means fighting about these issues all the time … Queers do a kind of practical social reflection just in finding ways of being queer. (Alternatively many people invest the better parts of their lives to avoid such a self-understanding and the social reflection it would imply.)

If a lesbian doesn’t reflect on racial fantasy, can she truly be called queer? The parenthetical at the end suggests such a person exists, is not in fact queer, and merits derision. But again, Warner can’t just say, “these homos aren’t queer.”

If a woman is hostile to “social reflection” and the like, why doesn’t she shed “stigmatization” by seeking a husband? The obvious answer is she’s wired for attraction to women, not men. But Warner lets the question hang in the air.

So much for defining queer people. How about queer politics?

• “‘Queer’ … suggests the difficulty in defining the population whose interests are at stake in queer politics”

• “queer politics does not obey the member/nonmember logics of race and gender”

• “it is not autochthonous”

• “queer politics opposes society itself”

• “universalizing utopianism”

Warner paints in a dark palette:

[N]ormal sexuality and the machinery of enforcing it do not bear down equally on everyone, as we are constantly reminded by pervasive forms of terror, coercion, violence, and devastation. The insistence on ‘queer’ — a term initially generated in the context of terror — has the effect of pointing out a wide field of normalization … as the site of violence. Its brilliance as a naming strategy lies in combining resistance on that broad social terrain with more specific resistance on the terrains of phobia and queer-bashing …

This sounds hysterical. But recall, some US states at the time did outlaw private, consensual gay sex. Those antediluvian laws granted a modicum of credibility to queer warnings of “violence.”

“The Politics of Homosexuality” (1993)

The same year Warner expounded on queer politics in an esoteric book, Andrew Sullivan published on gay politics in the mainstream New Republic.

Both “conservatives” and queer “radicals,” Sullivan points out, believe being gay is some sort of choice. They deny evidence that “homosexuality … exist[s] as an identifiable and involuntary characteristic of some people … that it is, in other words, as close to ‘natural’ as any human condition can be.” And they’re snarky about it. “They both react with disdain to those studies that seem to reflect a genetic source for homosexuality.” They’ll continue to do that perhaps forever.

The conservatives and radicals “seem to exist in a bond of mutual contempt and admiration.” Sullivan illuminates their symbiosis:

For conservatives, radical ‘queers’ provide a frisson of cultural apocalypse and a steady stream of funding dollars. For radicals, the religious right can be tapped as an unreflective and easy justification for virtually any political impulse whatsoever.

The essay builds to an argument that gay people should fight for the right to serve in the military and marry, and not for “re-education” or “political imposition of tolerance:”

[This agenda] makes a clear, public statement of equality, while leaving all the inequalities of emotion and passion to the private sphere, where they belong. It does not legislate private tolerance, it declares public equality. It banishes the paradigm of victimology and replaces it with one of integrity.

Sullivan will develop the thesis into a book, Virtually Normal, published in 1995 – much to the chagrin of Michael Warner.

“The Trouble with Normal” (1999)

In his 1999 collection of essays on gay/queer men, Warner argues that sexuality is learned. “[M]ost gay men and lesbians know that the sex they have was not innate nor entirely of their own making, but learned – learned by participating, in scenes of talk as well as of fucking.” He doesn’t say that sexual orientation toward one sex is learned but he leaves the impression it is – or at least, that it’s uncool to believe the science and logic that says it’s innate.

Since sexuality is learned, Warner argues, people “need an accessible culture of sex to tell them anything they deserve to know.” Where conservatives argue that sexuality must be hidden to prevent contagion, Warner argues it must be flaunted to promote contagion:

[N]ew sexualities, including learned ones, might have as much validity as ancient ones, if not more.

To evaluate the argument, watch interviews with young men who jumped on the train to castration after becoming addicted to sissy porn (Forrest, Shane). Consider the guy who blocked a busy NYC sidewalk so that people would step on him because he had a trampling fetish – is it good if the tramplers catch his fetish and also begin blocking sidewalks? Question the likelihood that girls will learn a new side of themselves, sexually, by encountering a man dressed like a girl for erotic reasons in their bathroom.

The heart of Warner’s argument for “public sex” is his anguish at watching Mayor Rudy Giuliani clean up New York City.

Warner feels entitled to cruise (pick up strangers in public and have sex with them on the spot) at the Hudson River piers near the West Village and other public lands. Not only that, he believes he deserves privacy in public. “In spaces such as … cruising grounds in secluded park areas, the assumption of privacy is reasonably grounded and should be respected.” Warner is outraged by cops arresting men in the Ramble in Central Park for “nude sunbathing” because that is a “traditionally gay area.”

Guiliani’s cleanup tactics may have been heavy-handed. But for me, a woman who enjoyed their fruit after moving to the city in 2005, Warner’s pro-sleaze arguments hold no appeal. I used to pace the West Village waterfront after a long evening of thinking about studying in the NYU law library. For months on end, walking out on a pier was the only way I turned my back on Manhattan. I’ve always wandered Central Park heedlessly, not worrying whether the section I’m in is reserved for naked men. When I suggest places to meet friends with children, no one has ever responded, “is that near the … traditionally gay area?”

Lesbians would never plant a flag on a universally beloved landmark – we won’t even keep men out of our private roller derby leagues.

Warner has two carrots for lesbians to join his public sex crusade. First, he appeals to our love of strip clubs. “[T]he strip club Angels used to have a lesbian night. It was the only lesbian strip club in New York and a place where even the ‘straight’ nights featured lesbian or bisexual dancers as well as trannies.” Wait – men sponsored an event where women danced nearly-naked together and simulated lesbian sex? And their male customers put up with that? Now that’s LGBTQ+ inclusion.

Second, Warner appeals to our love of porn. He interviews the co-owner of Toys in Babeland on the Lower East Side, which is known as a lesbian sex toy store. The proprietor wants to sell an XXX video but she’s scared Giuliani will punish her.

I actually have some experience with Toys in Babeland. In summer 2006, when I was 21, some friends and I swung by after happy hour. A display caught my eye: a platter with scalloped edges holding four bendy dongs, each in a different shade of beige/brown, with grooves and moldings and lumpy scrotums weighting down the ends.

“WHY WOULD ANYONE BUY A STRAP ON THAT LOOKS LIKE A PENIS?,” I asked my friends. The guys shrugged.

A woman with an unfashionably neat haircut hurried toward me, hands clasped together like a docent at the Holocaust Museum.

“I’m going to ask you to please be respectful,” she said. “Some of our customers use these items for gender play.”

I bolted out the door and never looked back. I had not yet realized that “gender play” was a threat to civilization but I knew one thing: anywhere that reprimands a drunk chick for making fun of penises is not an authentic lesbian establishment.

Warner doesn’t engage feminist arguments against porn directly but there’s a hint he’s heard their concerns: “Am I committed to defending what is sold in Times Square, including the worst of heterosexual culture?” It’s a rhetorical question. The answer appears to be yes.

Warner comes off as a very spoiled man. But he’s exactly what the queer doyennes ordered.

Eve Sedgwick: Yoohoo, boys! We are just dying to know, what are your most perverted desires? Tell us what you want!

Michael Warner: We want to have sex in your kitchen. SCRAM!

Trouble is best known for its argument against gay marriage – the title echoes Sullivan’s and Warner argues with him explicitly. His angst is all over the place. On one hand, he fears marriage because it entrenches state power:

As long as people marry, the state will continue to regulate the sexual lives of those who do not marry. … It will stipulate at what age and in what kind of space we can have sex.

On the other hand, Warner demands that the state involve itself with unmarried couples as well as married ones. He creatively calls for:

expanded domestic partnership, concubinage [a titillating word that can mean domestic partnership], or something like PACS [French domestic partnership] for property-sharing households, all available both to straight and gay people alike.

Warner complains that the gay organizations fighting for marriage “are simply silent on the consequences of marriage for the unmarried.” What are those, aside from the continued tyranny of age-of-consent laws? Warner fears the unmarried will feel a “shaming distinction.”

But at other points Warner sentimentalizes shame. He thinks shame brings gay men together:

In the common gossip of friends catching up on girlfriends, in the magazines and videos that are sold and traded around and pored over, in the bars where hair of all kinds gets let down, in personal ads that declare tastes hitherto unknown to man, in scenes where some mad drag queen is likely to find the one thing most embarrassing to everyone and scream it at the top her lungs in Radical Faeries gatherings and S/M workshops–in these and other scenes of queer culture it may seem that life has been freed from any attempt at respectability or dignity. Everyone’s a bottom, everyone’s a slut, anyone who denies it is sure to meet justice at the hands of a bitter, shady queen, and if it’s possible to be more exposed and abject then it’s sure to be only a matter of time before someone gets there, probably on stage and with style. The fine gradations of nerviness that run through this culture measure out people’s willingness to test the limits of shame.

Warner disdains gay “identitarianism” and exalts “queer politics” over it – but he’s obviously attached to the idea of gay male community. I don’t think he wants to trade the stuffy normal gay guys for ideologically-aligned fag hags and spicy straights. He refuses to say some gay men aren’t queer, even though that would vastly clarify his arguments, because that way he can keep the whole gang together under a more fashionable label. It’s a label that he controls because he is a professor of queer theory.

Standards of Care v. 5 (1998)

While gay men fought among themselves, straight men in dresses banged down their doctors’ doors. They demanded an end to the expectation that they “pass” as the opposite sex and seek genital surgery in order to be prescribed estrogen.

In 1990, a man named Dallas Denny formed AEGIS1 in Atlanta to advocate for “transgendered persons.” Denny reportedly held a psychologist license; it’s unclear if he practiced.

AEGIS included men who “are aroused by cross-dressing[.]” They and other transgendered people, it argued, had a “right to treatment” and a “right to choose their gender.” The treatment should be available a la carte – “it is possible to live a fulfilling role in the gender of choice without ever having reassignment surgery.” In 1994, AEGIS boasted having “broken new ground” by calling “for transgendered persons to consider themselves to be consumers of services[.]”

AEGIS appointed an advisory board of dozens that included medical professionals. It repeatedly surveyed them and transgendered people broadly, establishing itself as a mouthpiece for the community. AEGIS aimed its advocacy at the medical society HBIGDA,2 which it both honored and attacked on a regular basis. When HBIGDA said something out of line, AEGIS shook its head in dismay and called for better “education of caregivers.”

AEGIS’s medical philosophy of “give fetishistic men whatever they want” tracked the legal advocacy pursued at annual ICTLEP3 conferences in Houston, which were first organized by Phyllis Frye in 1991. Neither organization meaningfully defined “gender.”

Trans-identified people began attending HBIGDA conferences at least as early as 1993, according to Denny. (FTM activist Lou Sullivan held onto a registration form from 1989.) In Vancouver in 1997, they protested high ticket prices so HBIGDA let them attend for free. Denny was already slotted to speak. He argued for expanding HBIGDA’s remit to “heterosexual crossdressers” who wanted to grow breasts but keep their genitals intact. His report on the doctors’ reaction: “HBIGDA’s world had just turned upside down.”

The next year, HBIGDA released new medical guidelines, SOC5. It credited Denny as a consultant alongside other trans-identified people: Anne Lawrence, a male MD, and Jamison Green, a female diversity guru. No longer did HBIGDA maintain that the goal of gender medicine was to help patients pass as the opposite sex.4 Now the purpose was purely subjective – “lasting personal comfort with the gendered self.” In other words, the patient alone defined success and failure, sickness and health.

“Undiagnosing Gender” (2004)

The rapid normalization of gayness in the early 2000s posed a crisis for queer theorists. Since the beginning they’d milked state laws against homosexuality to discredit mainstream morality. But in 2003, the US Supreme Court jettisoned them in Lawrence v. Texas. Sedgwick had noted in 1991 that the “contemporary force of the prohibitions against every same-sex sexual expression” gave meaning to queer theory as nothing else did – but now all that was gone. Months later, the jubilant reaction to Massachusetts’ ruling for gay marriage exposed just how popular Sullivan’s agenda was among gay people.

Sure, the queers still had pedophilia. But that served a different role in their ideology. It was what the student encountered after being groomed by tales of gay oppression. What could take homosexuality’s place in that two-step?

In 2004, Butler published “Undiagnosing Gender,” her first exegesis of transgender identity.

The essay questions whether the desire to mimic the opposite sex should be understood non-pathologically or as “Gender Identity Disorder.” Butler rehashes the decades-old discourse in a philosophical register:

Although one might want to say that [transition] is a choice, even a choice of a dramatic and profound kind, for the purpose of the insurance allocation it has to be a medically conditioned choice. We can surely think for quite some time about what a medically conditioned choice actually is …

Butler asks questions. For simplicity I’ve inserted the answers implied by the piece:

Does [the diagnosis of GID] help some people to live, to achieve a life that feels worth living? [Yes.] Does it hinder some people from living, make them feel stigmatized, and, in some cases, contribute to a suicidal conclusion? [Yes.]

Butler’s analysis doesn’t consider the value of gatekeeping – she tacitly assumes it’s nil, and the only problem is how to maximize the patient’s “autonomy.” She doesn’t touch the questions of what transgenderism actually is or how sex trait change helps the patient.

It’s as though she got all her ideas from Dallas Denny.

Queer Marriage

Before “Undiagnosing Gender,” academic queer theorists only mentioned trans issues in passing, often using day-old terminology and rankling trans sensibilities. Judith Halberstam’s ambivalent chapter on FTMs in Female Masculinity (1998) is a prime example. But Butler’s essay marked the beginning of a new, trans-compliant era for queer theory.

So I peg the merger of trans and queer to 2004. To the extent they resembled each other before then, it’s because they’re both parasites on gay people that deal in sophistry and sex pseudoscience.

At first, there must have been a honeymoon period. Soon gender doctors would announce the importance of respecting children’s autonomy – music to queers’ ears. As foundations, nonprofit law firms, and hospitals started funding jobs in trans advocacy, queer theory professors could help students find careers. And unlike sexual orientation, gender identity is actually a construct – there was no science to wrestle readers away from.

But over the next several years, queer theory didn’t exactly thrive.

“Gaga Feminism: Sex, Gender, and the End of Normal” (2012)

Jack Halberstam, a lesbian whose name used to be Judith, is a professor unafraid to embrace pop culture like Lady Gaga songs. In 2012, she coined a phrase:

Gaga feminism … is a form of political expression that masquerades as naive nonsense but that actually participates in big and meaningful forms of critique. It finds inspiration in the silly and the marginal, the childish and the outlandish.

A major theme of the book is “children’s sexuality.” Gaga is a sound that young children make, Halberstam points out. She suggests redefining child abuse from an objective offense to a subjective one:

[W]hen we really don’t know or understand what children want or how they may feel about [sexual contact with adults], we could always do something wacky and crazy … like asking them to let us know what feels good and what feels intrusive or wrong.

Halberstam puts a finer point on Warner’s public sex argument:

[T]he child has all too often served as a justification for the most wretched forms of social and political conservatism ... A lesbian couple I know who live in San Francisco, just to give one example, became alarmed, after the birth of their daughter, about the amount of sexually explicit material in the shop windows in their very gay neighborhood, the Castro. ... This is a couple that for years had engaged in a polyamorous relationship and had incorporated all kinds of sex toys into their sex life. Suddenly, however, on behalf of their infant daughter, they rushed to avoid the very materials that had nurtured their own very queer desires. … [T]he exact sex-negative attitudes that fueled antigay sentiment three decades ago now sneak new forms of sex negativity back into dynamic social systems—but this time via gays and lesbians themselves!

The irony of gays perpetuating anti-gayness is so uncanny that Halberstam might want to reflect on whether she engineered it. Jack/Judith, are you sure that “sex negativity” is a coherent idea, and not just an empty phrase that pedophiles concocted to link anti-gay animus with shielding babies from erect penises?

Halberstam figures out how to argue that sexual orientation isn’t based in biology:

Because we receive all kinds of social and interpersonal imprinting at a very young age, often before we can even speak, by the time we reach puberty, our desires, our drives, our particular turn-ons and turn-offs have been established in our psyches in ways that are hard to change and may, in many cases, simply be permanent.

Halberstam doesn’t cite anything for that theory, though she does broadly allude to Freud a few times in the paragraph.

Halberstam has short hair and wears manly shirts so, she explains, “my gender regularly confuses strangers.” When her partner’s young children ask her if she is a girl or boy, she evades the question.

I couldn’t read this tome cover to cover. Between its bubblegum premise, chipper promotion of “children’s sexuality,” and persistent triteness, I felt embarrassed, like I was staring through a 2-way mirror at a woman snoozing in the nude. This is what queer theory has become?

Yes. Halberstam is the Director of the Institute for Research on Women, Gender and Sexuality and the David Feinson Professor of Humanities at Columbia University.

Queer Theory Loses the Plot

From 1984 to 2004, the queer theorists stuck to a precise, sui generis agenda: leverage injustice toward gay people to argue for dismantling all norms related to sexuality. After 2004 – that is, after injustice toward gay people started rapidly melting away – queer theory just sloshed around various progressive discourses adding a glaze of post-structuralism. Maybe we shouldn’t deport terrorists? Maybe working hard is bad? And of course, maybe we should give children whatever pharmaceutical they demand in the name of appeasing their inner gender.

Since many trans ideologues, gay people, and straight people are proudly queer, you might get the sense that queer theory has taken over the world. But keep in mind, first, a lot of everyday queers don’t know what they’re talking about. They haven’t read Rubin or Warner, they vociferously support gay marriage, and they like the child sex abuse laws just as they are. Second, the queers who do understand the mission have compromised it to accommodate trans ideology.

Queer theory’s raison d’etre is to champion transgressive, gross sexuality, so queers should have published dozens of books by now about men who ejaculate after a stranger calls them Ma’am. But they’re silent on this magnificent phenomenon. They seem to be compromising their own pro-kink values out of deference to trans ideologues, who demand that everyone turn a blind eye to transvestic fetishism (even though it’s in the DSM-5).

Andrea Long Chu, an MTF literary critic and masters-level queer, is the closest to an exception. While he has conceded that sissy porn made him think of himself as female and he hinted that his desire to grow chest fat was sexual, he has not written about the feeling it gives him when women pretend he is female. And recently he tried to backpedal from that sissy porn confession (“we must give up the dream of explaining ourselves”).

Queer provokes; trans sneaks. This is a cardinal distinction between the camps. But lately, queers have been sneaking.

Queer theorists also disagree with trans ideologues about “gender identity.” They see the term’s logical infirmity and pseudoscientific nature as clearly as anyone. Chu rejects it, as do other professional queers like the journalist Masha “M” Gessen. They think people should be able to change their bodies however they want and pretend to be whatever sex they want, including “nonbinary” (their favorite sex), without claiming to have a gender identity. But on this point, too, the queers yield.

The ACLU’s Chase Strangio embodies the tension between queer and trans. In interviews and personal writing she has disparaged gender identity and said she’s not a man (“I wasn’t a super binary person. I wasn’t like, ‘I am a man, and I am finally realizing that.’”). With her invocation of “violence” to describe basic social norms and democratically-enacted laws, she’s clearly a disciple of Judith Butler. She bragged about using trans ideology, with its palatable preference for binary discourse, to advance the queer goal of “destabilizing” America’s understanding of sex.

Strangio said that in a moment of oral-history bravada several years ago. By contrast, in court and a recent New York Times interview she toes the trans party line on gender identity (“I think research suggests that there may be some fetal hormonal exposures that make it a biological phenomenon”), lists man and woman as the only examples of gender identity, and refers to “my sense of myself as male.”

While Strangio got to file one lawsuit featuring nonbinary plaintiffs – Orr v. Trump, about passports – her recent buttoned-up rebrand in the NYT suggests the ACLU has ordered her (or she’s personally decided) to forsake queer theory. She’s not really using trans ideology; trans ideology is using her.

The queers capitulated to trans norms of sneakiness and essentialism, abandoning their own values of provocation and constructivism. So they’re done. They were a potent force from 1984 to 2004 but Andrew Sullivan’s generation of gays killed them with normalcy. Ever since then we’ve just been dealing with queer theory in its belching zombie form as it staggers from one socialist die-in to another.

Fear of a Queer Doctor

Despite its flaccidity, queer theory has become a bogeyman for some gender-critical activists. They think queer powers trans because of similarities between the two. But a clever philosophy major can point out similarities between any two schools of thought, especially if they’re allowed to abstract them to almost meaningless generalities.

Whose ideas actually propelled transgenderism? The line runs from Harry Benjamin through the ICTLEP/AEGIS boys, who joined forces with steroidal lesbians to storm HBIGDA, the foundation world and gay nonprofits (rebranding them “LGBT”), then Boston Children’s hospital, the mainstream media, and the Democratic party, which injected it into the veins of American law and K-12 classrooms. Neither the academicky queers nor the daft feminists could get a word in edgewise (though trans ideologues pretend to draw inspiration from feminists for optics).

Queer theory’s legacy isn’t spreading evil but rather obstructing reason. These philosogres diverted bookish gay and female millennials from actually helping gays and women. Sure, in some cases they goaded students into taking up discursive arms on behalf of a cause. But the cause wasn’t queer. It was trans.

Related

• Part 1

• Part 2

• Dr. Benjamin’s Fantasy World

  • How trans ideology penetrated American medicine in 1966

• Timeline of Trans Domination, 1993-2007 (revised Dec. 2025)

  • Putting trans ideology and queer theory into the context of real-world events

I wanted to take a department that was set in its ways and insecure about itself and make it a national center of attention.

–Stanley Fish (2024)

Please don’t use that term “straight.”

–Eve Kosofsky Sedgwick (1998)

In 2018, New York University suspended its premier Comparative Literature professor, Avital Ronell, after finding she had sexually harassed her grad student – a gay man more than 30 years her junior. Ronell’s old friend, the UC Berkeley philosopher Judith Butler, wrote a letter to NYU’s president. She (and the dozens of academics she recruited to sign on) accused the grad student of “malicious intention” and demanded “that [Ronell] be accorded the dignity rightly deserved by someone of her international standing and reputation.”

The story made waves not only because of the squicky allegations (the student said Ronell kissed him, required him to share a bed with her and touch her breasts, and called him “Sweet cuddly Baby”), but because of all the hypocrisy on display. Ronell, Butler, and many of the letter’s signatories were known as feminists. And Ronell, according to the New York Times, was a lesbian. Headline: What Happens to #MeToo When a Feminist Is the Accused?

Why were experts on equality flunking the quiz that HR gives at the end of sexual harassment training? Why did a lesbian risk her career to snuggle with a man? What the hell was going on?

This is Part 2 of a trilogy on queer theory. In Part 1 I described how Butler and Gayle Rubin, disillusioned with their fellow lesbians, laid the intellectual groundwork. Now I’ll explain why their niche project thrived in 1990s academia – and became known as feminist. Next time, in Part 3, I’ll show how the queers adopted trans ideology after 2000 and wreaked havoc beyond the campus gates.

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And now, the straight guy who invested in Gay & Lesbian Studies.

Stanley Fish, b. 1938

Professor of English Stanley Fish said he was a conservative. Right wingers didn’t believe him because he called their views “racist, sexist, and homophobic.” What was Fish’s true identity? Consider the evidence.

Fish scoffed at “classical liberal” ideals – the kind shared by principled Americans on both sides of the aisle – like free speech, objectivity, and fairness. “[T]he liberal strategy is to devise (or attempt to devise) procedural mechanisms that are neutral with respect to point of view and therefore can serve to frame partisan debates in a nonpartisan manner.” He thought this was a vain project. “[I]t is too little to say that liberalism doesn’t work; one should say … liberalism, bereft of its formal center, doesn’t exist.”

As a young, Yale-trained Milton scholar in the 1970s, Fish became known for puckish literary criticism – he argued the meaning of a novel lay with the reader, not in the text itself. In 1985 he took a job at Duke University, in Durham, NC, as dean of its respectable but stodgy English Department. Having embraced “black studies, ethnic studies, gay and lesbian studies, and so on,” he sought to revamp Duke by recruiting some of those fields’ edgiest voices. They included Henry Louis Gates, Jr., who’d later become famous for a showdown with a Cambridge cop who asked to see his ID, and Eve Kosofsky Sedgwick, an expert in identifying gay innuendo in old books. Duke cheerfully bankrolled the renovation.

Fish’s gambit worked. Between 1986 and 1991, applications to its graduate program quadrupled, almost 50% more Duke undergraduates majored in English, and the department leapt up in various national rankings. “If ever an academic department was hot,” the NYT would later reminisce, “it was the English department at Duke University in the late 1980’s and early 1990’s[.]”

Just because Fish threw money at Marxists doesn’t mean he plotted to indoctrinate Southern belles into communism. He drove a Jaguar. In 1991 he published an essay called “The Unbearable Ugliness of Volvos” that mocked his colleagues for buying practical cars in an effort “to enjoy the benefits of increasing affluence while at the same time maintaining the proper attitude of disdain toward the goods affluence brings.” Fish’s friend David Lodge, the novelist, based a character on him whose goal in life was to become the highest-paid English professor in the world.

Fish aimed to make Duke “a national center of attention.” He succeeded because conservative intellectuals – who’d been glowering at the academy since the Vietnam era – started calling Duke “the Fish Tank.” (It didn’t hurt that Duke became a basketball powerhouse during this period.) They published at least five books attacking the “critical theory” he championed, three of which excoriated him personally:

1. Closing of the American Mind by Allan Bloom (1987)

2. Profscam by Charles Sykes (1989)

3. Tenured Radicals by Roger Kimball (1990)

4. Illiberal Education by Dinesh D’Souza (1991)

5. Impostors in the Temple by Martin Anderson (1992)

For all the youthful excitement around “_____ studies,” the economy of humanities scholarship was teetering. In early 1991, the NYT covered the recent Modern Language Association (MLA) conference:

Tweed still abounds, but in Chicago it is sometimes transformed into downtown punk via glittery leggings, ripped Levi’s and the Silence = Death buttons of AIDS activists. … [T]he study of literature has in two generations changed more than any other academic field, including the sciences.

Universities interviewed early-career scholars for jobs at MLA. But not that many jobs. NYT reports on the desperate competition over “precious few college-teaching slots:”

If the MLAs of the last decade centered on literary theory, in the 1990’s scholars in the humanities are more likely to focus on turf battles and budget crises. Many universities have begun to trim liberal-arts departments in order to support science research or to expand schools of medicine and business. ... Deans who in the mid-1980’s bid lavishly for superstar theorists now want cost-efficient teaching, and lots of it.

Duke’s English department wilted under the light of those stars. By 1998, the university had placed its 40 members under the care of a botanist. “[S]ome of those working within literature are using literature as an instrument to try to affect social change,” the English professor James Applewhite charged. Sedgwick countered there was “a whole group of faculty who really felt that the department was too theoretical, too queer, too African-American.”

Despite the drama, Duke PhDs were still finding placements. From the MLA dispatch, it seems the rest of America’s universities had ordered themselves in the Fish Tank’s image. According to Fish himself, who was headed to a higher-paying gig at UI–Chicago, “the lack of clear mission is a feature, I believe, now of the profession and not just this department.”

So, was Fish a conservative? Sure. He loved capitalism, opposed social justice activism in the classroom, and did everything within his power as an English professor to sabotage the left’s reputation. As for the identity antics – it was his business.

Eve Kosofsky Sedgwick, 1950-2009

In 2023, a gay man named Blake Smith wrote of Eve Kosofsky Sedgwick in Tablet:

I am troubled whenever I read Sedgwick—a fat straight woman … —write about male anal eroticism with annoyingly evident delight at her transgression of academic propriety.

Sedgwick, who died of breast cancer in 2009, loved Victorian novels and gay men. As to her own sex life, it was “vanilla” and took place with “one person of the so-called opposite sex,” her college sweetheart. But her “erotic and intellectual life” was so much more than that. She explained in “White Glasses” (1991) that she was “someone who had it at heart to make decisive interventions on … the scene of gay men’s bonding, community, thought, and politics[.]” In fact, she held an “identity … as a gay man.”

How does a woman intervene on gay men when she’s armed with nothing but literary theory? Sedgwick constructed a new paradigm of “gay” criticism by scavenging for homoerotic subtext between male characters in classic literature and arguing the subtext was similar across many works. This positioned her as an expert on gayness.

A 1999 Salon profile praised Sedgwick’s boundary-crossing. “Far from the narcissism gay scholars are often accused of, her work did not theorize the world to prop up her own identity.1 Rather, she invented a new world in which even she was a stranger.”

I’m only aware of one woman who called herself a gay man before Sedgwick: Lou Sullivan, born a year after her. She medicalized, enjoyed a prolific sex life with the objects of her fetish, had fake testicles sewn to her labia, and died of AIDS in 1991.

Sedgwick argued sexuality is a construct. In 2008 she wrote that the “dividing up of … all persons … under the ‘opposite’ categories of ‘homo’ and ‘hetero’ is not a natural given but a historical process[.]” She based this analysis not on scientific evidence (which suggests people are hard-wired for attraction based on sex) but on her own speculative insights into the hidden desires of fictional characters.

“How to Bring Your Kids up Gay” (1989)

In the late 1980s, three remarkable studies of gay men and boys were published.

The “Sissy Boy Syndrome” and the Development of Homosexuality (1987), by the psychiatrist Richard Green, connected early femininity in boys with later gay orientation. Green would eventually lead the charge to legalize puberty blockers in the UK for this cohort.

Male Homosexuality: A Contemporary Psychoanalytic Perspective (1988), by the psychiatrist Richard C. Friedman, recounted the lives of gay men.

Finally, in 1989 the US Department of Health and Human Services released a report on youth suicide. It found that “gay youth face a hostile and condemning environment, verbal and physical abuse, and rejection and isolation from families and peers,” leading to higher rates of suicide attempts and completions. The report was professional and neutral, but its publication was marred when HHS’s own secretary condemned the gay chapter as departing from “traditional family values.”

Sedgwick analyzed these three texts in a 1989 essay, “How to Bring Your Kids up Gay.” It’s styled as an appeal to save feminine boys from conservatives, psychiatrists – and gay politics.

As to the psychiatrists: “Revisionist analysts seem prepared to like some gay men, but the healthy homosexual is one who (a) is already grown up, and (b) acts masculine.”

As to gay politics, Sedgwick argues gay acceptance is based on divorcing gender nonconformity from sexual attraction, i.e., pointing out that gay men can be masculine:

That one woman, as a woman, might desire another; that one man, as a man, might desire another: the indispensable need to make these powerful, subversive assertions has seemed, perhaps, to require a relative deemphasis of the links between gay adults and gender-nonconforming children.

She suggests this hurts boys:

There is a danger … that that advance may leave the effeminate boy once more in the position of the haunting abject—this time the haunting abject of gay thought itself.

Sedgwick likes that literary theorists are “distinguishing gender from sexuality.” But she fears psychiatrists are exploiting that “theoretical move” for evil ends – to create “the new pathologization of an atypical gender identification.” She continues:

The renaturalization and enforcement of gender assignment is not the worst news about the new psychiatry of gay acceptance ... The worst is that it not only fails to offer, but seems conceptually incapable of offering, even the slightest resistance to the wish endemic in the culture surrounding and supporting it: the wish that gay people not exist.

“Gender assignment” (sex) is in fact natural (real) so I wouldn’t be too worried about its “renaturalization.” As to whether reality helps us “resist” anti-gay attitudes, yes. You only need to argue binary sex is natural, deviation from sex-based personality norms is natural, homosexuality is natural, and nature is good.

But Sedgwick urges suspicion of nature arguments:

What whets these fantasies [of eradicating homosexuality] … is the presentation, often in ostensibly or authentically gay-affirmative contexts, of biologically based “explanations” for deviant behavior that are absolutely invariably couched in terms of “excess,” “deficiency,” or “imbalance”—whether in the hormones, in the genetic material, or, as is currently fashionable, in the fetal endocrine environment.

What if the biologically based explanation is accurate? Sedgwick would reject the premise that a statement can be “accurate.” Verifying and falsifying claims isn’t in her _______ studies toolkit. Like Butler and Rubin, she’s a constructivist. What matters is how we talk about things that other people consider true, i.e., how we can create reality by manipulating the public discourse.

Sedgwick thinks “there is no unthreatened, unthreatening theoretical home for a concept of gay and lesbian [biological] origins” – at least until society has “a strong, explicit, erotically invested affirmation of some people’s felt desire or need that there be gay people in the immediate world.” Sedgwick herself has a felt desire for gay people (men), so she’s demanding that society affirm her. Until then, her battle plan goes, we should pretend there’s no biological basis for homosexuality in order to thwart secret plans to eradicate gay people.

In sum, Sedgwick’s PR strategy for homosexuality de-centers actual gay people in favor of straight people who fetishize them, and holds scientific information hostage until she is assured of ongoing affirmation.

At one point she reveals her personal stake. In the text she laments “effeminophobia” in the “gay movement.” But in a footnote to that point she expresses optimism (emphasis added):

[R]elegation [of effeminate men] may be diminishing as, in many places, ‘queer’ politics come to overlap and/or compete with ‘gay’ politics. Part of what I understand to be the exciting charge of the very word ‘queer’ is that it embraces, instead of repudiating, what have for many of us been formative childhood experiences of difference and stigmatization.

Sedgwick likes the idea of replacing the biology-based gay movement that excludes her with a bullshit-based queer movement that includes her. She’s pushing a personal agenda under the pretext of saving feminine boys.

White Glasses (1991)

At the 1986 MLA conference, Sedgwick met a gay poet-theorist named Michael Lynch who had just that day learned his ex had AIDS. His white glasses stuck in Sedgwick’s mind. She fell in love with him and they became close friends. In 1991, as he lay dying of AIDS, she delivered a speech to a conference at the CUNY Center for Lesbian and Gay Studies about her “instant, fetishistic crystallization of him through those white glasses[.]”

Sedgwick scoured multiple cities for facsimiles, which she now wears:

So often I feel that I see with Michael’s eyes ... It is as if we were both the man in the iron mask; different men in the same iron mask.

This is the piece where Sedgwick comes out “with all a fat woman’s defiance … as a gay man.” She describes, in convoluted third-person terms, who she was at the 1986 conference:

It was nobody simpler than the handsome and complicated poet and scholar I met in him; it was a queer but long-married young woman [age 35-36] whose erotic and intellectual life were fiercely transitive, shaped by a thirst for knowledges and identifications that might cross the barriers ...

Sedgwick attends an event “for lesbians” and rebukes the performer for arguing research funds are going to AIDS instead of breast cancer – “as though AIDS were not a disease of women, of lesbians!” (AIDS is not a disease of lesbians.)

Sedgwick acknowledges the “obsessive imagery” she indulges in regarding Michael:

When I am in bed with Michael, our white glasses line up neatly on the night table and I always fantasy [sic] that I may walk away wearing the wrong ones.

Maybe Michael enjoyed this attention. I have no basis for believing otherwise. But it was this essay, not the NYT story on Avital Ronell’s Title IX debacle, that triggered in me a decades-old memory: a straight woman had long openly crushed on a gay friend of mine. After a breakup she began clinging to him. One night she came to his apartment and pressured him into spooning her all night. As he relayed it to me, I perceived he felt deeply embarrassed and grossed out by the protracted canoodle (not only was he biologically gay, he was biologically standoffish). He begged me not to tell any of our friends.

Impact Lit Crit

Sedgwick disclaimed activism – mostly. NYT in 1998:

Ms. Sedgwick said she never thought of queer theory as a basis for political action. But in recent months, her writings have been the inspiration for the increasingly vocal group Sex Panic, which is fighting what it sees as an oppressive attempt to restrict gay sexual behavior: efforts to close bathhouses and movie theaters for instance, in the belief that they are sites of sexual behavior that has a high risk of spreading AIDS. “I feel very privileged,” Ms. Sedgwick said, “that queer theory has been useful for political work that seems important for me.”

At the time, many gay men were fighting for rights that would enhance their potential: marriage equality, adoption, anti-discrimination. Sedgwick associated with none of it, only with an alternative vision of queer libertinism that led straight to HIV infection. To top it off, she oddly described this work as “important for me,” where you’d expect her to say “to me” or better yet, “to gay men.”

Forget politics. Sedgwick didn’t even help out gay men on her own college campus. In 1999, the Princeton Review ranked Duke the worst climate for gay acceptance of 331 top schools, based on student surveys.

In his recent memoir Cis White Gay, Ben Appel relates how he felt encountering queer theory at Columbia:

Coming to understand myself as a gay person is what made me feel whole. So to be told that my “homosexual” identity was merely a consequence of changing societal norms, rather than something innate and immutable – God-given, if you will – made me feel vulnerable and depressed.

Sedgwick anticipated that objection. In Bring, she argues:

[C]onceptualizing an unalterably homosexual body … can reassure profoundly. At the same time, however, in the postmodern era it is becoming increasingly problematical to assume that grounding an identity in biology or “essential nature” is a stable way of insulating it from societal interference.

The biological explanation of homosexuality doesn’t appeal to gay people because it insulates them from society but rather because it’s true. Sedgwick doesn’t care about gay craving for truth – nevermind truth itself.

How the Gays Became Queer

Professor Teresa de Lauretis is credited with coining “Queer Theory” at a conference on gay and lesbian studies in 1990. She said she wanted to “avoid all of these fine distinctions in our discursive protocols … [and] to both transgress and transcend them – or at the very least problematize them.” But by 1994 she’d recoiled from her baby. In an essay on lesbian sexuality, she wrote that “since I proposed [queer theory] as a working hypothesis for lesbian and gay studies … [it] has very quickly become a conceptually vacuous creature of the publishing industry[.]”

Sure, blame capitalists for mucking up your perfectly clear command to problematize fine distinctions in discursive protocols. Anyway, it was too late. “Gay and lesbian” lingered on the nonprofit scene, perhaps because it appealed to normies, judges, and politicians. But queer quickly swallowed gay within academia.2

The queers had funding now. Their books in the 1990s thank Rockefeller, Carnegie, Kirkland Endowment, and various universities. In 1995, the Ford Foundation started up the Sexual Research Fellowship Program, which aimed to buttress work in the social sciences and humanities that government and traditional foundations wouldn’t touch. Academic presses were psyched to publish critical theory, according to the 1991 MLA article. Duke’s published at least a dozen queer books by 2005. GLQ was founded in 1993 and printed queer articles from day 1. Duke acquired it in 1997. All of this academic infrastructure beckoned students toward careers in queer theory – they believed they could study, publish, and ultimately land gigs in a Fish Tank franchise.

Undergraduates (universities’ customers) sought out queer theory classes. In 2013, a young Guardian reporter explained why she loved Butler and Sedgwick:

So why did it strike such a chord with this straight girl? Well, Sedgwick herself married a man, Hal Sedgwick, though she would not have used the term “straight,” seeing sexual identity as a continuum rather than a category. And if queer is anything, it’s a retort to the idea that your sexual (or any) identity must define you in a static, limiting way, and above all, that it may be used to vilify you.

Sedgwick herself marketed queer theory to the hetero masses in 1998:

It’s about how you can’t understand relations between men and women unless you understand the relationship between people of the same gender, including the possibility of a sexual relationship between them.

As much as Sedgwick emphasized the interests of straight people, she never let the gays wriggle out of her grip. From “Queer and Now” (1991):

[G]iven the historical and contemporary force of the prohibitions against every same-sex sexual expression, for anyone to disavow those meanings, or to displace them from [queer’s] definitional center, would be to dematerialize any possibility of queerness itself.

In English: gay is the only part of queer that is actually real and not a discursive protocol. You can’t sell queer without gay. Sedgwick begins the same essay with statistics about gay youth suicides. Unlike Gayle Rubin, she knows she can’t wring pathos out of pedophiles and leather costumes.

Queer theorists turned up their noses at mainstream gay activism. Butler in 2004:

the state’s offer [of marriage rights] might result in the intensification of normalization[.]

But most Americans have never read their tracts and assume they are pioneers of today’s normie gay legal regime. NYT in 2009:

Sedgwick’s radical challenge to heteronormative ways of reading and living may seem quaint (if that’s the word) in a time when people are celebrating same-sex weddings in Iowa and the White House Easter egg hunt conspicuously includes gay and lesbian families.

Across three essays in Tendencies (1993), Sedgwick employed the word “rectum” 20 times. Barack Obama’s gay Easter egg hunt did not render her quaint.

How the Queers Became Feminist

The queers are cagey about feminism. They undermine it constantly but also let people believe they identify with it. Butler in 2004:

To question a term, a term like feminism, is to ask how it plays, what investments it bears, what aims it achieves, what alterations it undergoes. The changeable life of that term does not preclude its use. If a term becomes questionable, does that mean it cannot be used any longer, and that we can only use terms that we already know how to master? [No answer provided.]

In Sedgwick’s 1992 preface to Between Men, she explains that when she wrote the book years earlier:

I … wanted – needed – feminist scholarship to be different. In particular, I found oppressive the hygienic way in which a variety of … contingencies promised (threatened?) to line up together so nearly in the development of a feminocentric field of women’s studies in which the subjects, paradigms, and political thrust of research … might all be identified with the female.

So Sedgwick’s preferred feminism is not feminocentric or identified with the female. OK. What is it? Maybe her feminism is that which contradicts feminism. In “Queer and Now” (1991) she describes feminists fighting on both sides of an ideological battle (emphasis added):

The term ‘politically correct’ originated … in the mockery by which experimentally and theoretically minded feminists, queers, and leftists (of every color, class, and sexuality) fought back against the stultifications of feminist and left anti-intellectualism. The hectoring, would-be-populist derision that difficult, ambitious, or sexually charged writing today encounters from the right is not always very different from the reception it has already met with from the left.

If you think the two feminisms share something in common – as might be implied by their being the same word – Sedgwick has an insult for you later in the paragraph:

“The right’s success in grouping so many, so contestative, movements under the rubric ‘politically correct’ is a coup of cynical slovenliness unmatched since the artistic and academic purges of Germany and Russia in the thirties.”

Despite the queers’ ambivalence toward feminism, they had entree into its academic wing. For example, Sedgwick’s Between Men (1985) was published in a “feminist book series.” Given how “fag hag” culture exploded later in the 1990s, I wonder if a lot of women just liked the idea of dancing with gay men – the praxis of early American queer theory.

The inventors of queer theory didn’t claim to advance women’s interests, nor did they focus on women. They did not study women’s distinct experiences; they did not celebrate women’s unique qualities; they did not fight for women-specific causes. They doubted that “woman” was a material reality. In a logical world they’d be called “anti-feminists” or at least “not feminists.” But in the academic world they became known as “third wave feminists.”

The Third Wave

The coinage is credited to Rebecca Walker, daughter of Alice. In 1992, Ms. Magazine published the 22-year old’s essay, “I Am the Third Wave.” It’s a conventional feminist roar against Clarence Thomas, who’d been recently installed on the Supreme Court despite accusations of sexual harassment by Anita Hill. “He was promoted. She was repudiated. Men were assured of the inviolability of their penis/power.”

When Walker drops the phrase “third wave,” she seems to be referring to youthful invigoration:

I push myself to figure out what it means to be a part of the Third Wave of feminism. … My involvement must reach beyond my own voice in discussion, beyond voting, beyond reading feminist theory. My anger and awareness must translate into tangible action.

I write this as a plea to all women, especially the women of my generation: Let Thomas’ confirmation serve to remind you, as it did me, that the fight is far from over. Let this dismissal of a woman’s experience move you to anger. Turn that outrage into political power. Do not vote for them unless they work for us. Do not have sex with them …

I am not a postfeminism feminist. I am the Third Wave.

This sounds nothing like the pervert-inclusive, kink-forward, apolitical, andro-curious theorizing of the queers. Yet over time, the queers became known as “third-wave feminists.” Why?

They didn’t definitively accept or reject the label. But they did keep associating themselves with feminism without clear explanation. None of them ever wrote an essay called “Why I Am a Feminist Even Though I Reject Feminism” or “How to Be a Feminist in a World Without Women.”

Nature abhors a vacuum. People inferred that the queers belonged to this not-so-defined third wave; and whatever the third wave was, it explained how the queers were feminist.

These middle-aged white women probably didn’t mind the association with Walker, a young black woman – and with Kimberle Crenshaw, a young black legal scholar focused on racial justice who became a marquee third waver. The queers had prepared for this moment for years by tossing uncooked race gibberish into their sex essays. From “White Glasses:”

On women of all colors white refers … to the ways in which our gender tries … to inscribe in us … the zero-degree no-color of (not the skin of Europeans themselves but) the abstractive ideology of European domination. A white woman wearing white: the ruly ordinariness of this sight makes invisible the corrosive aggression that white also is …

Pretending the queers were feminist suited many parties – the boomer queers who wanted to keep scoring grants from funders who recognized the word “feminist;” the rising generation of feminocentrists who could benefit from alliances with established professors; the conservative culture warriors whose job got easier; the legions of men, right and left, gay and straight, who didn’t want to look too closely at Eve Kosofsky Sedgwick.

Anti-porn “radical feminists” were the only people knowledgeable and rude enough to say “those crazy bitches aren’t feminists.” But they were in no condition to take down the queen bees of MLA. Few Gen Xers appreciated their mordant warnings about “phallocracy” and dogmatic denials that lesbians ever prey on each other. Plus, they couldn’t attack queers for appropriating gayness because they supported “political lesbianism” (straight women pretending to prefer women over men).

Back to Avital Ronell’s 2018 scandal. Why did a lesbian force a man into her bed? Wrong question. Ronell didn’t call herself a lesbian. In the NYT article, she referred to herself as “queer.” NYT itself used the term “lesbian.” The reporter, Zoe Greenberg, treated the two as synonyms. The year before, she’d written on schools eager to serve “nonbinary” students and Chimamanda Ngozi Adiche’s “ill-informed” statements on trans-identified men. Dissolving homosexuality into queerness is what up-to-date journalists do now.

Like a lot of queers, Ronell wears a gay skinsuit: short hair, designer glasses, and button down shirts. But you can tell she’s straight because in photos she’s baring her chest and covering her arms. Lesbian sex pests show off their biceps. Also, at age 27 she hooked up with a 16-year old boy.

Judith Butler discussed sexual harassment in 2004. She said banning it turned it into “the allegory for the production of gender.” Worse, she argued, in what might be a cryptic defense of Bill Clinton:

[T]he abuse of sexual harassment doctrine by the conservative Right in its persecutorial inquiries into sex in the workplace present a serious public-relations problem for feminists on the Left.

Forget how sexual harassment laws affect women. What violence do they inflict on the discourse?

Queer feminists did not pass Title IX. They did not research how to expand economic opportunity. They never promised you they wouldn’t sexually harass gay guys. In fact, they gave you every indication that they would sexually harass gay guys. Their MO is to cross boundaries and subvert reality using language, i.e., to deceive, in a manner that is risque and ropes in handsome men whenever possible.

In Part 3 I’ll show why that’s been a boon for gender doctors.

I am not a believer in “facts” unmediated by cultural structures of understanding.

– Gayle Rubin (1992)

Who devises the protocols of “clarity” and whose interests do they serve?

– Judith Butler (1999)

In the 1980s, a rising generation of female scholars felt alienated by feminism. They didn’t see all men as avatars of the patriarchy – some were their comrades in oppression as “sexual minorities.” Writing in a pretentious style imported from Paris, their essays valorized sexy gay guys while scoffing at “facts” and “truth.” The project became known as queer theory.

Many critics of trans ideology think it grew out of queer theory, particularly Judith Butler’s 1990 book Gender Trouble. This is wrong. The rationale for gender medicine comes almost entirely from Harry Benjamin, an endocrinologist who published his opus in 1966. Butler didn’t turn her attention to transgenderism until the late 1990s; other foundational queer theorists never focused on it. Doctors and lawyers draw on a long line of pseudoscience, not literary theory, to justify transing kids.

Queer theory and trans ideology are not the same thing, neither spawned the other, and they are not fully aligned. But queer theory became a vessel for trans ideology, ferrying it through parts of society that defer to English professors, because it loves sex-related rebellion, sophistry, and books about “gender” that don’t say what gender is.

In this three-part essay I’ll explore queer theory’s role in building the trans utopia we enjoy today. Today’s entry, Part 1, introduces America’s founding queers: anthropologist Gayle Rubin and philosopher Judith Butler.

I’ll be tracking three movements. First, a type of gay intellectualism that revels in subversion. (This will become known as queer theory.) Second, “radical” feminism which is intensely vigilant against threats to women. The subversive gays and radical feminists are adversaries. Third, trans ideology. It’s aloof from the gays and feminists – for now.

Feminism in 1984

The feminist movement of the 1970s was fueled by grassroots energy, cultural momentum, and philanthropy. The most significant source of funding was the Ford Foundation, but other big guns – Rockefeller, Carnegie, Mellon – also backed everything from nonprofit law firms to painters. On campus, Ford seeded “women’s research centers.” The vibe was optimistic as women rapidly secured new freedoms.

In 1976, the Rolling Stones promoted its new album, Black and Blue, with a Sunset Boulevard billboard that showed a woman tied up and covered in bruises. The caption: “I’m ‘Black and Blue’ from the Rolling Stones – and I love it.” The offensive ad galvanized women to speak out against gross media images.

This turned into an activist campaign against the public degradation of women and then, following some mission creep, to a war on porn. With high-profile spokeswomen like Gloria Steinem, an endorsement from the National Organization for Women, and links to NYC power brokers (who wanted to clean up Times Square), by 1980 the movement had momentum.

But it never gained institutional backing. When Barnard College hosted a conference on sexuality in 1982 – funded by a grant from the Helena Rubinstein Foundation and ticket sales to the general public – it platformed pro-porn perspectives but not anti-. The latter camp leafletted and pelted presenters with hostile questions.

Anti-porn “radical feminists” had two vaunted leaders: Andrea Dworkin and Catharine MacKinnon. Dworkin was indie, living off her writing and speaking. Legal scholar MacKinnon was respected but couldn’t get a job. America’s top law schools gave her one “visiting” gig after another, but never a tenure-track position. (Finally the University of Michigan hired her with tenure in 1990.)

Dworkin and MacKinnon were sharp. No matter where you stand, it’s fun to read their work and argue about them, and their polemics seem prescient as young people today accuse internet porn of ruining sex and worse. But lesser radical feminists of the 1980s could be vexatious. Some promoted “political lesbianism” (shunning men despite feeling attracted to them) while attacking real lesbians for adopting masculine styles. You can see why a left-leaning college girl would shop around for another vision of feminism.

Financial support for feminism was shifting. A 2007 study found that philanthropists of the 1970s favored broad efforts to expand women’s horizons in employment and education. In the 1980s, perhaps antsy after the low-hanging fruit was picked, they bent toward serving downtrodden women. Grant-chasers defined their clients as mentally ill, homeless, drug addicted, and victims of violence. In 1985, a trickle of funding appeared for lesbians. Foundations and universities began backing “feminist” scholars who were writing on gay people (or were perceived to be). The women’s movement became more fragmented.

The rich didn’t fully control the shape of feminism in the 1980s. Everyday women influenced it by buying tickets to lectures on sexuality, volunteering for anti-porn actions, shopping at feminist bookstores … and choosing schools based on sex-related course offerings.

Transsexualism in 1984

The movement for “sex reassignment surgery” ran aground in 1979, after Johns Hopkins U announced the practice didn’t help patients. At the same time, the sponsor of its propaganda arm, Reed Erickson, sank into drug addiction. Transsexuality faded from public view.

The word “transgenderist” was introduced in the 1970s by Virginia Prince to describe fetishists like himself who used estrogen to grow breasts but spurned genital surgery. By 1991 his ilk decided to run with “transgender” for their nascent civil rights movement, noting that the word had already been in use a while. It probably did not spread far beyond this niche community before 1991; “transsexual” was still proper terminology in the 80s.

Gayle Rubin, b. 1949 (Anthropology)

As a UMich anthropology grad student in 1975, Gayle Rubin published “The Traffic in Women: Notes on the ‘Political Economy’ of Sex.” It analyzed “women’s oppression” through the lens of Marx and others, arguing it was socially constructed. This established her as a promising feminist.

Rubin, who’d come out as a lesbian years earlier, moved to San Francisco in 1978 to conduct ethnography on the local gay male leather scene. In a 1994 interview she’d explain to Judith Butler what intrigued her:

Most of the actual practice of gay male culture was objectionable to many feminists, who mercilessly condemned drag and cross-dressing, gay public sex, gay male promiscuity, gay male masculinity, gay leather, gay fist-fucking, gay cruising, and just about everything else gay men did. I could not accept the usual lines about why all this stuff was terrible and anti-feminist, and thought they were frequently an expression of reconstituted homophobia. By the late 1970s, there was an emerging body of gay male political writing on issues of gay male sexual practice. I found this literature fascinating, and thought it was not only helpful in thinking about gay male sexuality, but also that it had implications for the politics of lesbian sexual practice as well.

Soon after moving to San Francisco she formed Samois with Pat Califia and others, which they described as a lesbian-feminist “SM” (sadomasochist) organization. So began a grinding conflict – Rubin compared it to “gang warfare” – with the local anti-porn feminists over whether violence against women was inherently bad for women.

The lesbians of Samois didn’t just troll straight women who wished they were lesbians. They also discussed boundaries, exchanged consent, cared for one another after (staged) traumas, nested (in a dungeon), and shopped. From the 1994 interview:

I do not see how one can talk about fetishism, or sadomasochism, without thinking about the production of rubber, the techniques and gear used for controlling and riding horses, the high polished gleam of military footwear, the history of silk stockings, the cold authoritative qualities of medical equipment, or the allure of motorcycles … [H]ow can we think of fetishism without … the seductions of department store counters, piled high with desirable and glamorous goods?

Rubin discovered these baubles because she was sniffing around a movement that I’ll call gay nihilism. Mainstream gay activism had sought assimilation since the 1950s, when the Mattachine Society and Daughters of Bilitis formed. But the sexual revolution of the late 1960s gave voice to an edgier type of gay. They said they were not the same as straights. In fact, they said, homosexuals were really more like pedophiles.

Organized pedophiles had a foothold in their movement. Even today, some gay historians, backed by “LGBTQ” grants, write wistfully about the North American Man-Boy Love Association (NAMBLA) as representing “radical queer inclusivity.”

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In 1982, at that controversial Barnard conference, Rubin set forth a new framework for discussing sexuality. She finalized it two years later.

“Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality” (1984)

Rubin kicks off with an epigraph from a 19th century French doctor about how to stop “little girls” from touching themselves by “burning the clitoris with a hot iron.”

You don’t want to be like that guy, right? Rubin introduces us to the alternative: “recognizing the sexuality of the young, and attempting to provide for it in a caring and responsible manner” by tearing down “law devoted to protecting young people from premature exposure to sexuality[.]”

Rubin doesn’t go there immediately. First she proclaims that society has “become dangerously crazy about sexuality” – we’re caught up in a “moral panic” about homosexuality, public sex, porn, and “sex offenders.” She puts forward a sweeping historical argument that crackdowns on porn and prostitution go hand in hand with harassing gay people. If true, this would suggest gay people and pimps have shared interests. But she doesn’t quite have the goods:

Although anti-homosexual crusades are the best-documented examples of erotic repression in the 1950s, future research should reveal similar patterns of increased harassment against pornographic materials, prostitutes, and erotic deviants of all sorts.

“For over a century,” Rubin continues, “no tactic for stirring up erotic hysteria has been as reliable as the appeal to protect children.” She decries recent media coverage about a “vice ring organized to lure young boys into prostitution and pornography.” She doesn’t show that the reporting is false. (Boy prostitution is a problem.)

Rubin expresses gratitude toward the ACLU and NAMBLA for opposing recent child porn bills.

Rubin relates the tale of an art professor, Jacqueline Livingston, fired by Cornell for showing students photos of “her seven-year-old son masturbating.” After bemoaning the “harassment and anxiety” Livingston suffered “for her efforts to capture on film the uncensored male body at different stages,” Rubin argues that “it is easy to see someone like Livingston as a victim of the child porn wars. It is harder for most people to sympathize with actual boy-lovers … Consequently, the police have feasted on them.”1

Thinking Sex is most famous for its formulation of a sexual hierarchy of privilege, which it represents using two diagrams – a “charmed circle” and a row of brick walls in a meadow. See if you can spot NAMBLA hiding in each like Waldo.

Rubin places “Long-term, stable lesbian and gay male couples” in the middle of the field – less oppressed than slutty gays, transsexuals, and “generation” fetishists. Later she witheringly describes gay couples as “verging on respectability.”

Rubin unpacks the data:

All these models assume a domino theory of sexual peril. The line appears to stand between sexual order and chaos. It expresses the fear that if anything is permitted to cross this erotic DMZ, the barrier against scary sex will crumble and something unspeakable will skitter across.

Rubin created the models herself, so their assumptions are hers. Does she think acceptance of gay couples will open the door to pedophilia? She seems to be using the word “assume” just to get around providing evidence for the “domino” idea that gays and pedophiles stand and fall together.

Rubin doesn’t directly engage arguments that hitting on children, legalizing whipping, turning sex into a business, or opening up public parks for orgies cause harm. Here’s the closest she comes:

This kind of [hierarchical] sexual morality has more in common with ideologies of racism than with true ethics. It grants virtue to the dominant groups, and relegates vice to the underprivileged. A democratic morality should judge sexual acts by the way partners treat one another, the level of mutual consideration, the presence or absence of coercion, and the quantity and quality of the pleasures they provide.

Nevermind that some men in 1984 were having sex “in the park” – a fount of HIV – because they had wives and kids at home.

Rubin envisions new frontiers in employment law:

Sadomasochists leave their fetish clothes at home, and know that they must be especially careful to conceal their real identities. An exposed pedophile would probably be stoned out of the office. Having to maintain such absolute secrecy is a considerable burden. Even those who are content to be secretive [because they have a tiptoeing fetish] may be exposed by some accidental event.

Rubin vs. Feminists

Rubin casts anti-porn feminists as conservative. She refers to “right, left, or center” feminist positions on sexuality after complaining that anti-porn feminist rhetoric is inspiring the Pope and the “right wing.”

Ultimately, she “want[s] to challenge the assumption that feminism is or should be the privileged site of a theory of sexuality.” She’s trying to make something new. But she still views the whole world as a matrix of oppression. “[L]esbian feminist ideology has mostly analyzed the oppression of lesbians in terms of the oppression of women. However, lesbians are also oppressed as queers and perverts[.]”

In 1994, Rubin reflects:

I looked at sex “deviants,” and frankly they didn’t strike me as the apotheosis of patriarchy. On the contrary, they seemed like people with a whole set of problems of their own, generated by a dominant system of sexual politics that treated them very badly.

Rubin wants to transcend 1980s feminism but she keeps following the first rule of 1980s feminism: identify the apotheosis of patriarchy.

Corrupting the Lesbians

Rubin conjures a malign System that will come for you next (emphasis added):

There is systematic mistreatment of individuals and communities on the basis of erotic taste or behavior. … Specific populations bear the brunt of the current system of erotic power, but their persecution upholds a system that affects everyone.

How does Rubin know the System that oppresses pedophiles, johns, and tree-humpers is the same System that (in 1984) disallows gay marriage? Is it because both Systems involve statutes? Is it because all this stuff appears together in the Charmed Circle that Rubin drew? Recall that she can’t prove correlation between anti-gay oppression and other types, nevermind causation.

Technically Rubin is calling out to “everyone.” But the demographic most likely to read this essay and take it seriously — the college students who enrolled in women’s studies to talk about sexuality — are young lesbians.

Rubin is prodding these malleable readers to swear off the “respectable” world to defend sadists who whip 13-year olds in the park (consensually). Of course this is a bad idea; of course their prospects will fall, not rise, if they mount such a defense. You can tell Rubin held little sway for years because otherwise gay people never would have won the right to marry and raise children.

But Thinking Sex planted some seeds that came to flower in the 2010s.

A Glimpse of Trans

Thinking Sex refers to “transsexuals” and “transvestites” only in passing. This reminds me of Mary Dunlap’s 1979 essay, which mentions transsexuals as fellow victims but doesn’t seem tapped into their movement.

The text never utters “transgender” except in a footnote that was added to the 1992 reissue. The bracketed language is my clarification:

Throughout this essay I treated transgender behavior and individuals in terms of the sex system [sexual behavior] rather than the gender system [man/woman], although transvestites and transsexuals are clearly transgressing gender boundaries. I did so because transgendered people are stigmatized, harassed, persecuted, and generally treated like sex “deviants” and perverts.

The reason she finesses her past choice to link trans people with sexuality is probably that she got the memo — trans activists bitterly deny the link.

Judith Butler, b. 1956 (Philosophy)

“The only way to describe me in my younger years,” Judith Butler says, “was as a bar dyke who spent her days reading Hegel and her evenings, well, at the gay bar.” But she sometimes chafed at the culture. “I entered into a ­lesbian community in college—late college, graduate school—and the first thing they asked was, ‘Are you a feminist, are you not a feminist?’ ‘Are you a lesbian, are you not a lesbian?’ and I thought, ‘Enough with the separatism!’”

In the porn wars, Butler at first sided with radical feminists. But as she followed the debate, she changed her mind.

The day after Barnard’s fateful 1982 conference on sexuality, the Lesbian Sex Mafia held a “speakout on politically incorrect sexuality” in Greenwich Village. Butler, then a grad student in philosophy at Yale, appeared as one of six invited speakers. She’d been “emboldened” by reading the work of the Barnard headliners, including Rubin.

Historian Rachel Corbman recounts Butler’s “nice Jewish lesbian tale” about her uncle who was institutionalized after repeatedly flashing his malformed genitals:

Butler interprets her uncle’s proclivity for exposing himself in public restrooms as a “profound and important . . . act of resistance” designed to “transfigure the meaning of gender” by claiming “this new gender as his own.” In the closing moments of her remarks she then draws a direct link from her absent uncle to his three “very, very gay” nieces and nephews, including herself. “He turned to the world in an act of defiance and asked them to look at the ambiguity they sought to suppress. He didn’t know then that there would be more of us, testing the limits of gender. Perhaps if he had known he would have realized that he lacked nothing.”

In 1999, Butler would change the story: her uncle was “incarcerated for his anatomically anomalous body[.]”

While Butler kept writing essays on “gender,” her 1984 dissertation – which she developed into a book published in 1987 – was on the French post-structuralist take on German Idealism. A harsh review by a senior academic may have hampered her efforts to find a conventional tenure-track philosophy gig. For whatever reason, she decided to combine her interests. In 1990 her smash hit, Gender Trouble, applied post-structuralist analysis to gender. She credited “Gayle Rubin’s extraordinary work” with inspiring her.

Butler’s prose is notoriously impenetrable. But she added a preface to Gender Trouble in 1999 that somewhat clearly conveys what she meant by it. I’ll rely on that and summaries of her thinking from the authoritative Stanford Encyclopedia of Philosophy (SEP).

“Gender Trouble” (1990)

Gender Trouble’s big idea is that “performativity” creates gender. But it “is difficult to say precisely what performativity is,” Butler admits in 1999. “This text does not sufficiently explain performativity in terms of its social, psychic, corporeal, and temporal dimensions.” Her “theory sometimes waffles between understanding performativity as linguistic and casting it as theatrical.” But basically, doing, wearing, or saying stuff – perhaps any sort of stuff – is a “performance” of gender.

Butler does not define “gender.” She implies that it’s a term we all use to refer to a type of performance. “[W]hat we take to be an internal essence of gender is manufactured through a sustained set of acts, posited through the gendered stylization of the body.” Performance is what creates gender; gender is that which is performed.

Gender is not innate or an expression of something that is innate. SEP: “The expressive view Butler sought to replace presents gender as an inner self, which practices allow to emerge. By contrast, Butler saw those practices, and their repetition, as the source of gender.” Recently Butler reported her “‘gender identity’ – whatever that is – was delivered to [her] first by [her] family as well as a variety of school and medical authorities.”

This is anathema to trans ideology, which argues for medical treatment and civil rights based on a stable, innate “gender identity.” In fact Butler does not engage trans ideology. Other than a brief mention in the 1999 preface, it never utters “transgender” and refers to “transsexuals” only in passing. “Transvestites” (always the diciest term) doesn’t appear.

Butler knows she hasn’t defined gender. The first line of Trouble’s 1990 introduction: “Contemporary feminist debates over the meanings of gender lead time and again to a certain sense of trouble, as if the indeterminacy of gender might eventually culminate in the failure of feminism.” Neither the collapse of feminism nor the task of writing a book based on an unarticulated concept daunt Butler. “Perhaps trouble need not carry such a negative valence.”

If Butler doesn’t want feminism to fail, she seems to want it to … change. Chapter 1 “reconsiders the status of ‘women’ as the subject of feminism[.]”

While Butler’s writing is numbingly opaque, she makes clear in interviews that gender is painful for her: “It was with some difficulty that I found a way of occupying the language used to define and defeat me.” In Trouble she often uses the word “violence” to describe social pressure (“the mundane violence performed by certain kinds of gender ideals”).

Are women real? “[T]his text does not answer the question of whether the materiality of the body is fully constructed[.]” Butler says she answered it after Trouble. But I don’t think she did. SEP in 2023: “Butler is not wedded to the idea that we need a stable conception of women. … [S]he asks whether “the construction of the category of women as a coherent and stable subject” is “an unwitting regulation and reification of gender relations.”

Sex has to be a construct in Butler’s view because she is a constructivist. If a woman’s body is inherently meaningful then Butler’s career is not. Once you’ve digested thousands of pages of French and German philosophy to write a dissertation on how there are no stable categories, you’ve got to knife any biologist who says “well actually people with disorders of sex development are all classifiable as male or female.”

What is the point of Gender Trouble? “[T]o open up the field of possibility for gender without dictating which kinds of possibilities ought to be realized.”

What’s the point of opening up gender possibilities? “[N]o one who has understood what it is to live in the social world as what is ‘impossible,’ illegible, unrealizable, unreal, and illegitimate is likely to pose that question.”

Trouble seeks “to undermine any and all efforts to wield a discourse of truth to delegitimate minority gendered and sexual practices.” It’s weird to shrink away from a “discourse of truth,” i.e., discussion based on logic and shared values, when what you’re defending is romance between adults of the same sex. Perhaps, like Rubin, that’s not what she wants to defend.

Butler seems to like drag. In 1990, she rejects “feminist theory’s” criticism of the “subversive” practice. “[P]art of the pleasure, the giddiness of the performance is in the recognition of a radical contingency in the relation between sex and gender …” But in 1999 she clarifies that this pleasure doesn’t mean anything:

[T]he positive normative vision of this text, such as it is, does not and cannot take the form of a prescription: “subvert gender in the way that I say, and life will be good.“

Butler believes “gaining recognition for one’s status as a sexual minority … [is] a necessity for survival.” What is recog–wait, literal survival? Let’s just move on.

Judith Butler, Team Player

People often assume Butler wants to achieve some sort of material win for women or gay people. This is a mistake.

In 1999, the philosopher Martha Nussbaum pilloried Butler for being a bad feminist whose writing doesn’t help “women who are hungry, illiterate, disenfranchised, beaten, raped[.]”

So? You could say the same for Hegel. Nussbaum gasps:

She tells us … that we all eroticize the power structures that oppress us, and can thus find sexual pleasure only within their confines. It seems to be for that reason that she prefers the sexy acts of parodic subversion to any lasting material or institutional change.

Well, yes, that’s at least what Butler wants you to think. Her mentor is Gayle Rubin, a woman who claims to be a sadist to bolster her credibility as a champion of pedophiles. In assaulting Butler’s “naively empty politics,” Nussbaum comes off as a bit naive herself.

Blake Smith similarly assumes Butler has humanitarian aims. Relating an episode where she lashed out at a young lesbian who spoofed her, Blake charges that Butler “oppressed the women and gay people Butler meant her work to help protect.”

Butler does not mean her work to protect women or gay people. She doesn’t even talk about women or gay people – those concepts are too “naturalized.” She prefers to expound upon “the incest taboo” and “the bisexuality that is said to be ‘outside’ the Symbolic.”

Notice those are abstractions, not people, and Butler doesn’t propose salves for the tragedy they imply. She can’t even say whether Trouble is “normative” or what the value of “opening possibilities of gender” is. She just wants to “gain recognition” for “sexual minorities” (a phrase she started using after 1990 when perhaps she realized her books needed characters) by having them “perform” in a way that isn’t innate to them, might provoke “violence,” and won’t reliably lead to a “good” life.

Recently Butler has embraced trans rights, asserting with relative lucidity that she is nonbinary (“I don’t see how I cannot be in that category”). She didn’t have trans on the brain when she wrote in 1990 about the importance of “gaining recognition.” But “pretend I’m not a woman” turned out to be the perfect prescription to cap off her vaporous philosophy.

It’s easy to imagine a world where Rubin and Butler remained obscure. After all, they were really just litigating internecine lesbian disputes. Rubin could have been cancelled by NAMBLA’s critics; Butler might have been hired by a small liberal arts college that needed a Germanist.

But that’s not what happened. Their careers took off and now they’re considered visionaries. Why?

In Part 2 of this essay I’ll show how straight people created a market for gay nihilism.

Further reading:

Ben Appel’s brilliant and funny new memoir, CIS WHITE GAY, goes deep on queer theory. He’s not a fan.

The prostitute who is able to create the illusion of an ideal sex partner, fleeting as it may be, has actually done something for this man’s mental health[.]

– Harry Benjamin (1964)

[I]f an extra highball or an extra cigar adds to your mental comfort and satisfaction, to your feeling of happiness, by all means have both, even at the risk of doing some harm physically. This harm is problematical anyhow and the authorities often disagree. But nobody can disagree as to the state of your own happiness.

– Harry Benjamin (1941)

No book has shaped trans ideology more than Harry Benjamin’s The Transsexual Phenomenon. Published in 1966, it’s built on personal testimony, emotional blackmail, contradictory theories, and literal mythology. Its nightmarish vignettes, many of them perverse or obviously false, read like Grimm’s Fairy Tales. But the concepts and arguments are familiar to the modern reader. That’s because if you’ve flipped through I Am Jazz, listened to The Protocol, or studied Bostock v. Clayton County, then you’ve encountered the Disney version of The Transsexual Phenomenon.

Benjamin, a dapper endocrinologist beloved for his bedside manner, is the architect of trans ideology. Born in 1885, he is still the movement’s driving intellectual force – despite its claims of cutting-edge science and supposed “queer women of color” roots.

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In this post I’ll sketch Benjamin’s biography. Then I’ll break down his contributions to the trans movement, assessing how each idea and practice held up over the decades. Finally I’ll explore why no one on any side of 2025 gender discourse – trans activists, radical feminists, anti-feminists – acknowledges Benjamin’s hulking influence.

Sourcing

This post draws on Benjamin’s own words, contemporaneous journalism, and scholarship by Helen Joyce, Bob Ostertag, and Joanne Meyerowitz. For some biographical detail and historical context I rely on Alison Li’s 2023 biography of Benjamin, Wondrous Transformations.

Transformations has a slant. Li doesn’t say a word about the fetishistic men who seek estrogen and surgery, even though Benjamin discussed this crucial point forthrightly. Nor does she engage the concern that many of his patients were self-loathing, confused, lonely or embattled because of their homosexuality (she does curtly mention that some gays objected to his work). Worst of all, her book is blurbed by Susan Stryker, a propagandist “historian” whom she cites approvingly.

Biography and trans history are two genres prone to sanitizing their subjects. Transformations is probably guilty. But Li’s quotations from Benjamin’s archive seem to be genuine and she reveals plenty of unflattering detail. I’m using her work cautiously.

Life of Benjamin (1885-1986)

In this section, all the material is from Li except where otherwise noted.

Harry Benjamin grew up saluting Kaiser Wilhelm II in bourgeois Berlin, the son of a Lutheran mom and ex-Jew dad. After writing his med school thesis on tuberculosis, he took a job in his late 20s assisting Friedrich Franz Friedmann – a grandiose young doctor who claimed he’d derived a cure to tuberculosis from turtles. The ruse got them invited to New York City in 1913, where they were mobbed by desperate patients, and DC, where Friedmann was feted by President Woodrow Wilson.

Benjamin soon realized he was part of a con. Plus Friedmann didn’t pay him. So he quit, ending up broke and stranded in America. After working odd jobs for a year he sailed back toward Germany, only to get diverted to England as World War I broke out.

Back in New York, Benjamin built a small practice and networked with intellectual physicians. The 1920s were an exciting time for medicine (insulin, antibiotics) but Benjamin’s arc bent toward blunders. He became a disciple of Eugan Steinach, an Austrian who transplanted opposite-sex gonads into rats with intriguing results but then staked his career on “rejuvenation” – one-testicle vasectomies intended to make men over 40 feel young.

Benjamin brought “Steinach operations” to NYC, offering ovary X-rays to women for the same purpose of “reactivation.” He attracted media attention and glamorous patients, including the novelist-socialite Gertrude Atherton. In 1922, the 64-year old was in a funk so Benjamin X-rayed her ovaries. Weeks passed with no improvement to her energy levels. Benjamin continued to X-ray her ovaries and assured her the lack of improvement was normal. Then one day she “had the abrupt sensation of a black cloud lifting from my brain.” She began joyously pumping out novels. Benjamin wrote to Steinach, “I cannot rule out a psychological influence.”

It wasn’t the only time Benjamin chewed over the placebo effect. Once a patient called him frantic because her 5-year old son had swallowed “thyroid supplements” from Benjamin’s treasure chest. Examining the healthy boy over the next 24 hours, Benjamin realized he might as well have “eaten bread crumbs.” The pills were duds. He asked himself whether he simply cast a “spell” over patients with his confidence.

Nevertheless, Benjamin kept treating patients who wanted to be young again. They were banging down his door in the wake of Atherton’s endorsement. In 1925 he bought an opulent Upper West Side apartment with a marble staircase and servants.

That year Benjamin married Gretchen, a German 18 years his junior, rescuing her and her family from Weimar-era poverty. She soon complained to others about the couple’s lack of sex; he was rumored to cheat on her with actresses. But the marriage endured until his death. They never had children because, according to Benjamin, he was too selfish to be a father.

When Gretchen scored a patent for a “metallic face mask” to smooth wrinkles in 1929, Benjamin described it to Steinach as “a gimmick that might provide an additional income.”

Li emphasizes that Benjamin sold the Steinach operation as a way to improve life, not extend it. But he called his enterprise the “Life Extension Institute,” according to Ostertag.

One of Benjamin’s patients in the 1920s was Otto Spengler, a German-born NYC businessman Li describes as “a tall, lean man with long, thin red hair that he kept rolled up under his derby hat.” He was married with three kids.

Spengler wore women’s underwear under his business suit, Benjamin told an audience of “homophile” (gay) activists in 1966. His female employees somehow knew about his lingerie and “accepted” it. Spengler asked Benjamin for drugs to achieve “breast development” but the technology did not yet exist. So Benjamin X-rayed his testicles to feminize him, according to Meyerowitz. After Spengler was hit by a car, Benjamin felt dismayed to see the hospital records labeled him a “degenerate” for his choice of underwear.

Scientists were racing to synthesize sex hormones. Benjamin formed a team to manufacture androgens in the late 1920s but the venture was unsuccessful. He continued to offer “reactivation” and various potions. His bedside manner made him popular. As one of Atherton’s friends noted, “Just his approach is enough to make one feel better.”

Before the Nazis took over, Benjamin frequently traveled to Germany. In Berlin he’d visit his friend Magnus Hirschfeld’s Institute for Sexual Science, where a museum displayed BDSM gear and frilly underpants worn by Prussian officers. Hirschfeld and the resident scholars puzzled over the distinctions between transvestites and homosexuals.

In 1949, the sexologist Alfred Kinsey introduced Benjamin to Val Barry (pseudonym), a man in his early 20s whose parents had raised him as a girl from a young age because his personality was so feminine. Now, having read about sex changes, he was determined to obtain one himself. He’d recently been institutionalized for attacking his father, an outburst presumed to flow from his frustration at having a penis.

The Attorneys General of Wisconsin and California warned Barry’s doctors that castrating him would constitute criminal “mayhem;” a Chicago surgeon backed away after consulting counsel. According to Meyerowitz, Kinsey and Barry’s psychiatrist thought Barry should “undertake homosexual relations as a means of learning to value his genitals” (their words) rather than undergo castration.

Barry seems to appear in an appendix to Phenomenon under another pseudonym, H. His wild biography includes suspected incest with an older sister and:

H was sexually attracted to a brother six years his senior. He says that this brother would embrace him and reassure him that his condition [as a cross-dresser] did not affect their relationship. On such occasions, H would experience an erection.

Benjamin informed Barry that he was “a woman [who] accidentally possesses the body of a man,” prescribed estrogen, X-rayed his testicles, and referred him to Sweden for genital surgery.

In 1952 the media alighted on Christine Jorgensen, a young homosexual man who’d just arrived home to New York in women’s clothing after castration in Denmark. Benjamin, now in his 60s, wrote Jorgensen a letter offering his services. By that point his practice was struggling, according to Ostertag, as the Steinach operation had become known as quackery.

As homosexuals and transvestites bombarded Jorgensen with requests for advice, he referred them to Benjamin. Soon the doctor had shifted his practice from reactivation to transsexualism.

In 1964, the National Insider published a story on the “fourth sex” – neither male, female, nor homosexual – known as transsexual. It quotes Jorgensen, Benjamin, and Ira Pauly, a young psychiatrist whom Benjamin had mentored since residency:

The transsexuals are happy and content in their new roles [as wives].

They seem to have ironed out most of the obvious marital problems that would arise with their husbands.

THE ONLY THING THEY CANNOT DO AS WOMEN IS HAVE CHILDREN.

For those who remain single, the specialists say life is much more emotionally stable.

Two years later during the homophile lecture, Benjamin complained bitterly that the same tabloid had reported one of his patients regretted the surgery. He suggested the publication had paid off the transsexual. The following year, Esquire reported that Benjamin had never “heard of a change of heart.”

Benjamin advocated for legalized prostitution. In 1964 he condemned the recent cleanup of San Francisco (where he lived during the summers), suggesting the dearth of accessible “whores” caused a sailor to murder a woman:

[H]is libido hardly appeased [by getting drunk], he accosted a girl in the street, having been unable to find one anywhere else. The girl happened to be the wrong kind. She refused the sailor’s advances in no uncertain terms, whereupon he got mad and ‘pushed’ her. She fell so unfortunately that she fractured her skull on the sidewalk and the boy was arrested and charged with murder. Undoubtedly he paid for his (was it his alone?) crime with years in prison.

By the mid-1960s Benjamin was transitioning young male indigents in San Francisco. It appears some of these youths were underage; some may have been prostitutes. ”Harry Benjamin, he gave hormones to everyone,” one reminisced decades later.

The Transsexual Phenomenon was released in 1966 by Julian Press, which published works on sexology and exotic religion. The New York Times covered it twice. Aloof academics like Robert Stoller started taking Benjamin seriously. The San Francisco Police Department had a copy. The Erickson Educational Fund granted Benjamin $50,000 (around $500,000 in 2025). Johns Hopkins opened the country’s first “Gender Identity Clinic” – with full surgical services – that year. One of its founders, John Money, said Phenomenon made it possible.

Transsexual clinics soon cropped up all over the country. New practitioners honored Benjamin by naming guidelines, a conference, and finally their guild after him, the Harry Benjamin International Gender Dysphoria Association (HBIGDA).

Phenomenon presents cross-sex hormones as soothing and vaginoplasty as “possible salvation.” Fetishism, it argues, is a precursor to transsexuality. But in interviews, Benjamin drew a neat line between the two — the conditions were separate.

Throughout his life Benjamin was known for his European charm and fastidious, expensive style. Esquire praised his “sophistication,” noting he had “a wardrobe of custom-made suits and haberdashery from Sulka” and was “a connoisseur of wines, of the food of San Francisco…”

Benjamin explained his approach to transsexual medicine: “To me it is just a matter of relieving human suffering the best way we can.”

What’s Changed?

Benjamin’s theory of transsexualism reads like a dark relic – unless you’ve perused any currently-pending ACLU lawsuits.

1. The Holy Trinity Model of Sex

The central mystery of trans ideology is that sex has three conflicting definitions: the binary, the spectrum, and the hodgepodge. This model traces back to Harry Benjamin.

First, sex is binary and immutable. “No actual change of sex is ever possible,” Benjamin writes. “Sex and gender … are decided at the moment of conception, when either two X chromosomes …” In describing his patients’ sex, Benjamin tacitly adheres to the binary view. They’re all unambiguously male or female (though his pronoun usage is inconsistent).

Likewise, the ACLU has no problem identifying its clients sex as male or female and relies on that categorization in its briefs. But it uses the gibberish term “sex assigned at birth” for this designation rather than “sex” alone.

Second, sex is a spectrum. Benjamin: “Between ‘male’ and ‘female,’ ‘sex’ is a continuum with many ‘in betweens.’”

The ACLU’s lead trans attorney, Chase Strangio, puts her own sex on a spectrum. She believes she has “bodily formations that exist sort of in the liminal space between male and female.’”

Third, sex is a hodgepodge of indepedent characteristics. Benjamin lists the “kinds of sex” as “chromosomal, genetic, anatomical, legal, gonadal, germinal, endocrine (hormonal), psychological and - also - the social sex, usually based on the sex of rearing.” These may not be in “harmony.” Psychological sex is “highly important” and dictates the social sex in transsexuals and transvestites.

This year, the ACLU sued the federal government for the right to express one’s “gender identity” on one’s passport in the box designated for sex. It explained sex:

The concept of “sex” refers to multiple physiologic attributes, such as chromosomes, gonads (glands that produce hormones and gametes), and anatomy (internal and external reproductive parts), secondary sex characteristics that usually develop in puberty, and gender identity.

These attributes may not “align.” Gender identity – the sense of being male, female, or something else – “is the most important and accurate characteristic for determining what [a person’s] sex is” for purposes of passports. This is very similar to the hodgepodge described by Benjamin.

On top of those three understandings of sex, there is also a non-understanding to consider. Benjamin claimed “what we call ‘sex’ is of a very dubious nature and has no accurate scientific meaning.” The ACLU, citing the Endocrine Society, has said “the terms ‘biological sex’ and ‘biological male or female’ are imprecise and should be avoided.”

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Benjamin was the first thought leader to bravely posit sex as a binary, a spectrum, a hodgepodge, and nothing, all at once. Today that idea is regularly on display in federal court.

2. Reliance on Myth

Phenomenon features an appendix by the psychiatrist Richard Green that roots transsexual identity in history, anthropological studies, and mythology. The human race has always included people who wanted to change sex, therefore we should help people pretend to change sex, seems to be the suggestion.

For example, Green describes a supposed practice by the Mohave tribe of North America:

An alyha [male who pretends to be female], after finding a husband, would begin to imitate menstruation. He would take a stick and scratch himself between the legs until blood was drawn. When they would decide to become pregnant they would cease “menstruations.” Before “delivery” they would drink a bean preparation, which would induce violent stomach pains that were dubbed “labor pains.” Following this would be a defecation designated as a “stillbirth,” which would be ceremoniously buried. There would then ensue a period of mourning by both the husband and “wife.”

This style of reasoning became a staple of trans advocacy. Today, trans NGOs celebrate North American “2 spirits.” But they don’t claim these men pretended their poop was a baby.

3. Fatalism

Benjamin was not a mental health professional. But he claimed that therapy could not help his patients overcome their desire to change sex because he hadn’t seen it work. “Since it is evident … that the mind of the transsexual cannot be adjusted to the body, it is logical and justifiable to attempt the opposite, to adjust the body to the mind.”

Benjamin saw a limited role for therapists. When discussing female transsexuals:

Psychotherapy with the purpose of having the patient accept herself as a woman is as useless in female transsexualism as it is in male. Psychotherapy can be helpful only as guidance and to relieve tension, provided there is a permissive attitude on the part of the doctor regarding masculinization.

The ACLU vehemently opposes any counseling that might lead a “transgender” patient to become content with their sex, labeling this “conversion therapy.” Its expert witnesses draw credibility from the decades-old conviction in gender medicine – passed down from Benjamin – that trans identity is intractable.

4. Kill All the Gatekeepers

The early days of gender medicine are known as a time of gatekeeping. Benjamin, however, rejected this practice.

As discussed above, he prescribed hormones to “everyone,” including young prostitutes – some of whom may have been underage. According to Li, he sent patients to a friendly psychiatrist “not to determine whether the patients were transsexual but whether they were mentally well enough to make their own decisions.”

Once Johns Hopkins opened its Gender Identity Clinic, the doctors struggled to decide which patients to operate on. In Ostertag’s words:

Benjamin suggested that the diagnosis required for the surgery could be the request for the surgery itself, arguing that anyone who was sick enough to ask for such painful, ferocious surgery was sick enough to receive it. Not surprisingly, this proposal convinced no one.

Modern gender medicine follows strictly in the Benjamin model as to adults, calling it “informed consent.” For kids, there is more controversy. Leading clinicians like Jason Rafferty and Johanna Olson-Kennedy openly argue that “kids know who they are” and failing to “affirm” them immediately is harmful. Even some clinics that advertise relying on “assessments” (which are not scientific) have been found to skimp on them.

5. Scientific Vindication Is Just Around the Corner

Many of Benjamin’s peers believed transsexuality was seeded in early childhood. But as a “monist” he believed everything had a physical cause, including psychological problems. He conjectured that the biological basis for transsexuality was exposure to certain hormones in the womb, but he never conducted any serious research into this. (Prenatal hormone exposure does seem to influence sexual orientation.)

Today, the ACLU – backed by prominent gender doctors – routinely argues in court that “there is a general medical consensus” that gender identity has a biological basis, but it has not been discovered yet. On the stand, its expert witnesses note that prenatal hormone exposure is a promising area of research.

6. Until the Vindication Comes, Just Trust Me

Phenomenon rests heavily on the author’s clinical experience, anecdotes, and ill-supported claims that no one regrets annihilating their genitals. Nevermind if the anecdotes are verifiable – some are facially absurd. From one transsexual’s family history:

The first child born to [the transsexual’s parents] was abnormal. Studied by scientists, she was declared at the age of two to “have the brain of an adult.”

The child died in her third year, a German specialist having predicted the death on the ground that “her brain was developing too fast for her body.” The brain was removed and preserved at a university. This child had given extraordinary answers to questions put to her by medical and other examiners.

An appendix by REL Masters discusses K, a transsexual who claims to be running his own study of 15 peers, none of whom have any regrets. Even Masters himself seems skeptical of K’s self-report:

Orgasm is presently experienced on the average of once in every three acts of intercourse. The vagina is “perfectly satisfactory.” Artificial lubrication is not required, since there is, according to K, sufficient internal secretion (perspiration?) for a penis to enter without difficulty and for the act to be completed without unpleasant friction. (This, if true, is unusual; the need for employing some lubricant is almost universally reported.)

Benjamin insists follow-up studies are impossible:

Before they have the operation, [transsexuals] are willing to promise anything, that they will be available for followups and so on. But afterwards, they tend to disappear. “I want to forget,” they say. “I was so miserable before and I am so happy now. Please don’t remind me.”

Today, child gender medicine is founded on “clinical experience,” low quality survey-based evidence with no control groups, and pseudoscientific Dutch research that asked girls if they felt uncomfortable with their erections. Gender doctors routinely testify in court based on their unsystematic personal observations. Civil rights lawyers present affidavits by parents that are absurd on their face.

7. Selective Iconoclasm

Benjamin casts his critics as prudes. “Breaking a taboo always stirs quick emotions.” In his homophile lecture he mocks “the great taboo that the sex organs must not be tampered with. Anything else can be done, a lobotomy may be done, the brain may be injured, but the sex organs must not be touched.”

In Phenomenon he complains that castration makes Americans emotional “because procreation is prevented.” He continues: “It is difficult to reconcile this argument with the only too well justified fear of overpopulation.”

Today, prominent journalists like Masha Gessen and Lydia Polgreen dismiss concerns that minors will later regret becoming sterile. Gessen bemoaned the influence of Kiera Bell, the British detransitioner, over the British High Court: “That one person’s testimony convinced the court to make a decision that will affect untold thousands tells us more about the pull that human reproduction has on the imagination than it does about gender transition.”

And of course, modern gendercrats insinuate that all of us who oppose injecting teen girls with steroids are social conservatives who can’t stand gender-nonconformity. Gessen refers to trans-skeptical liberals as “self-identified liberals.” One professional trans activist just told the Wall Street Journal, in an interview about gays condemning fraudulent “LGBTQ” propaganda, ”this is often about fear of the other.”

From Benjamin to Gessen, trans advocates smugly portray Americans as rubes imprisoned by puritan sexual morality. But they refuse to consider that one particular taboo could be driving young homosexuals to transition …

8. Don’t Say Gay

Benjamin rejects the idea that some people want to change sex because they are gay. He sneers at psychiatrists who have diagnosed his patients with “homosexuality” and

advised the patient to accept himself (or herself) as he or she was. The “gay” life … is no solution for the transsexual. He does not like it. He actually dislikes homosexuals and feels he has nothing in common with them.

In fact, Benjamin questions the entire concept of homosexuality. First, he thinks the word “homosexual” is over-applied to any man who’d had sexual contact with a man before. This might be a fair observation of his era. But then his logic falters:

[T]he great majority of all so-called homosexuals are in reality bisexually oriented although they may live exclusively homo- or heterosexual lives. These are fundamental facts that deserve to be recalled.

In Benjamin’s telling, the only true homosexuals are those who never have straight sex or relationships, but even these are somehow bisexual.

Benjamin kicks off his lecture to the homophiles:

I do not like the word homosexuality. It is to me something much too final and too much of a unit. I always like to talk of homosexual behavior and homosexual inclinations. I think that is much fairer and to the point.

It’s an imperious way to address a homosexual rights organization – telling the members they are not a unit.

For all his supposed open-mindedness, Benjamin doesn’t critique the idea that people should be straight. He writes of Jorgensen, “since the psychological status of a transsexual male is that of a female, it is natural that sex attraction centers on a male.”

The trans movement has attacked gays ever since. In 1974, psychiatrist Norman Fisk argued it was fine to castrate men “in full flight from … effeminate homosexuality.” In the 90s, trans activists excoriated gay activists for their supposed privilege. Modern gender doctors and trans activists falsely claim sexual orientation is not innate, rationalize transing gay kids, see childhood gender nonconformity as “evidence” of being “transgender,” slur lesbians for refusing to date men in dresses, denigrate gay rights victories …

Like Benjamin, today’s trans advocates problematize the term “homosexual” to death. GLAAD’s style guide, which other trans orgs and most of the corporate media seem to accept as authoritative, defines it:

Outdated clinical term considered derogatory and offensive. … Please avoid using “homosexual” except in direct quotes.

Like Benjamin, GLAAD advises against referring to gay people as a unit:

The term “gay community” should be avoided, as it does not accurately reflect the diversity of the community. Rather, LGBTQ community or LGBTQ+ community are recommended.

GLAAD uses the term “transgender community” uncritically.

Benjamin was trying to write a new class into existence: transsexual. But its members shared little in common. An overlapping group, homosexuals, was more cohesive – it made sense as a classification because it was rooted in biology. Benjamin needed to poison the public’s understanding of “gay” in order to shore up the reasoning behind “trans.” And so do trans advocates today.

9. Transition a la Carte

For gender doctors who worked in university clinics between 1966 and 1979, transing was a package deal. They only treated patients with hormones if they planned to receive surgery in the near future. It seems they worried that keeping one’s gonads while using cross-sex hormones caused cancer. Also, they thought the goal of gender medicine was to pass as the opposite sex.

Benjamin, however, prescribed hormones back when finding a surgeon in America was impossible. In Phenomenon, he endorses estrogen as a standalone treatment. For transvestites “it lowers libido, it calms the patient, and acts as a biological tranquilizer.” For “nonsurgical transsexuals,” estrogen is “needed for comfort and emotional balance.”

Today, gender doctors practice “nonbinary” gender medicine by offering hormones and hormone suppressants without surgery. Even though evidence now suggests this causes cancer.

10. Doctor as Lawyer

Benjamin advocated for gender medicine from the early 1950s onward, appealing to public sympathy for his patients. He also testified in family court that transsexuals should be treated as the opposite sex and provided his patients letters they could show police if they were caught violating cross-dressing laws. His partnerships with EEF in the mid-1960s brought him more opportunities to advocate for his practice by speaking with the media and influencing medical schools.

In Phenomenon, Benjamin suggests FTM surgery should “include the closing of the vagina” to “justify the statement later on [when the patient argues in court she is a man] that the patient could no longer function as a female[.]” The physician is encouraging pointless genital surgery based on a legal theory.

A passion for advocacy drives today’s most prominent pediatric gender doctors. They drafted their clinical guidelines with the aim of winning civil rights and insurance lawsuits.

11. Suicide Card

Benjamin argued that if people who wanted genital surgery weren’t granted their wish, they’d kill themselves. Phenomenon is chock full of morbid musing:

Some of them [in past eras] probably languished in mental institutions, some in prisons, and the majority as miserable, unhappy members of the community, unless they committed suicide.

How often a mysterious suicide is due to the utter misery of a transsexual is anybody’s guess.

Suicides with “motive unknown” have undoubtedly occurred because of the inability to procure surgical help for the sex change.

Benjamin doesn’t have data. In fact, he only presents one case of completed suicide:

He was … handicapped by extreme, almost paranoic sensitiveness to remarks referring to the feminine impression he made and to his assumed homosexual inclination.

Shouldn’t a transsexual man like being feminine? Maybe this man’s anguish owed to homosexuality rather than disharmonious gender.

Today, gender doctors floridly speculate about suicide. “I’m worried that we’re going to lose some kids” if they can’t access gender medicine, testified one in 2022. The Biden administration called the treatment “life-saving.”

Gender doctors have no data to support their hypothesis that gender medicine saves lives, even though they’ve brandished it with certitude for 60 years.

12. Nomenclature

If Benjamin’s writing seems foreign today, a big reason why is nomenclature.

Transsexual has since become transgender. The change developed out of 1970s fetish culture, when it referred to men who used hormones but did not seek surgery. Activists, including fetishists, adopted it – and expanded its definition – in the 1990s as part of a campaign to co-opt all gender-nonconforming people into trans activism.

Psychological sex became gender identity. The latter term originated in the early 1960s. Universities set up “Gender Identity Clinics” beginning in 1966. In 1993, fetishists fired their opening salvo in a revitalized fight for trans rights by declaring everyone has a right to define their own “gender identity.”

Smart move. In their first major lawsuit, brought by the ACLU, the judge saw gender identity as an analogue to sexual orientation. The association continues to today in many contexts as “SOGI.”

But the ACLU’s Strangio rolls her eyes at gender identity. She doesn’t think “sex” and “gender” should be two separate constructs — they’re the same, “just fucking pick one.” Her view tracks that of her non-lawyer activist peers. It echoes Benjamin, who wrote that gender is a word for “the nonsexual side of sex” and “sex and gender must, here and there, be used interchangeably.”

Modern trans activists and gender doctors are more rigorous than Benjamin about pronoun hygiene – always referring to patients by the sex they identify with and pretending they’ve always been that sex – and they only speak of the sex binary in the code of “assigned at birth.” This reflects the movement’s swerve in the 2000s toward “trans women are women” legal positions. It may also be an effort to defraud insurers, gaslight parents, deceive children, and dodge prosecution.

HBIGDA changed its name to WPATH (World Professional Association for Transgender Health) in 2006. The official reason was to shed the supposedly-pathologizing term “gender dysphoria.” I wonder if another concern was at play. The organization had just been taken over by activists in a transgender movement doggedly associating itself with civil rights – feminism, gay acceptance, and race equality. Benjamin was a straight white man.

13. Pervert Erasure

Benjamin acknowledges fetishistic cross-dressing. “[T]o take sex out of transvestism is like taking music out of opera. It simply cannot be done.” He quotes a transvestite: “When I dress, it feels as if I have a continuous orgasm.” This conduct leads to a desire for genital surgery: “The fetishistic can gradually develop into the (basically) transsexual variety, as case histories have repeatedly shown me.”

Benjamin believes these men “can resemble addicts, the need for ‘dressing’ increasing with increasing indulgences.” Yet he cites Hirshfeld’s view that “dressing” is “beneficial to their mental health.” He equivocates as to whether transsexuality is erotic.1

Benjamin describes “accompanying perversions or deviations that often complicate transvestism” like “bondage,” “flagellation,” and wanting to be “humiliated.” He illuminates the condition’s sophisticated pedigree:

Havelock Ellis proposed the term “eonism” for the same condition, named after the Chevalier d’Eon de Beaumont, a well-known transvestite at the court of Louis XV. In this way, Ellis wanted to bring the term into accord with sadism and masochism, also named after the most famous exponents of the respective deviations, the French Marquis (later Count) Donatien de Sade, and the Austrian writer, Leopold von Sacher-Masoch.

Recently feminists like Roisin Michaux and Genevieve Gluck have made similar observations to Benjamin – that these men are addicted to feeling sexually humiliated – by reviewing their social media activity. But LGBTQ, Inc. shrieks “transphobia” at anyone who mentions a connection between cross-dressing and eroticism or BDSM. Only trans provocateurs like Andrea Long Chu, Torrey Peters, Anne Lawrence, and Julia Serano dare it.

Benjamin shares one peccadillo with modern activists: he theorizes a mysterious type of transsexual who is not spurred by fetishism or conflicted homosexuality. For these patients, “the cross-dressing is in all likelihood not of fetishistic but of basically transsexual origin[.]”

A parting word from Benjamin about fetishists:

Another one of my patients, a nearly sixty-year-old, largely heterosexual pharmacist, who looks little more than forty, combines his fetishistic “dressing” with a strong fetish for youthful apparel (civistism). He gets an even greater “sexual glow” (as he describes it) from dressing like a very young boy than as a woman. Once, he related, when he was almost fifty, he was alone at home and indulged in dressing in a young boy’s suit. The bell rang and he opened the door. A man was there and in the poorly lighted entrance hall, he mistook my patient for a child and asked: “Sonny, is your mother home?” That thrilled him to such an extent that he almost had an orgasm.

In sum, Phenomenon is a whirlwind of batshit that would traumatize the average Democratic voter reading it today. Yet its publication inspired med school deans to open cosmetic genital surgery clinics. Apparently 2025 is a more normal time than 1966.

Respect Benjamin’s Authority

Last week on X I posted a scholarly paragraph about men who rape turkeys and asked my followers to guess which gender doctor wrote it. Three ventured John Money, one Kinsey. Several denounced men in general. No one got it right — it was from Benjamin and REL Masters’ 1964 book on prostitution.

Most people who fight about trans ideology know Benjamin’s name but not his character. That’s because no sect has an interest in spotlighting him as a hero or villain. Trans activists don’t want to credit their gender insights to a Kaiser Wilhelm fanboy. Radical feminists train their disgust on more depraved sexologists, particularly Money. Social conservatives finger “queer theory” academics. Anti-feminists blame feminists.

I think these factions are all overlooking the obvious. John Money entered the trans game after Benjamin. His big idea – that parents can mold young children’s “gender identity” via clothing – is anathema to today’s trans ideologues. Queer theorists came along decades after Benjamin. They didn’t make up new ideas about “gender,” just repackaged and amplified his. No post-modern theorist can match the dynamism of a profit-motivated doctor who studied at a German sex dungeon.

Mainstream feminist and gay activists have also been major distributors, but not manufacturers, of trans ideology. Mission-driven paraphiliacs like Riki Wilchins and Julia Serano targeted them relentlessly, exploiting their bovine focus on “the marginalized” to convince them to Stand With sex mimics – nevermind that men who beat up their fathers because they can’t grow a vagina are marginalized for a good reason. Judith Butler, Sarah Schulman, and that gay guy who reported you to HR are just useful idiots. Whenever Matt Walsh seizes on some hazy parallel between women’s lib and trans ideology to argue transgenderism comes from the comp lit department (women can have it all, like pickup trucks … or penises!), he’s stumbling into the same fallacy that snared the 1990s women’s studies professors he disdains.2

Pugilists might find Harry Benjamin to be a dull villain because he didn’t stand for anything. He was just a Dr. Feelgood. No matter how hard you hit him, you’re not taking down communism, patriarchy, or feminism. He wasn’t even a true trans ideologue because he never believed he was changing his patients’ sex. He knew he was just placating them.

But he did indulge one fantasy of his own: he thought he was practicing medicine.

“I was on the wrong side of history.”

—Romy Mancini (2025)

Romy Mancini was at the top of the Gen X queer world. She studied under Kenji Yoshino at Yale Law School, litigated gay rights cases at the ACLU in New York, and even dated the future trans activist-professor Paisley Currah. But marriage equality didn’t excite Romy and she felt skeptical of the trans agenda. So in 2003, she walked away from “LGBT” advocacy.

Today Romy — who moved to San Francisco in 2010 — volunteers with Women Are Real and Our Duty to combat trans ideology. She votes Republican.

I recently interviewed Romy about her work and how it feels to see so many of her old friends forget what a woman is. You can listen to our conversation above.

Note: there are two audio files above. That’s because when I originally posted the first, it was somehow missing 10 minutes in the middle. I added the missing piece to this post later as a separate clip. Luckily it’s a rational break so you won’t be confused when you’re listening to either section.

Score

Romy and I discuss her contributions to the ACLU’s amicus brief in Lawrence v. Texas (the Supreme Court decision that declared a right to consensual sex in private). Here’s a passage of the ruling that cites her research:

[F]ar from possessing "ancient roots," … American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae …

In summary, the historical grounds relied upon in Bowers [which this decision overturns] are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.

“A lot of people fan-girl, fan-boy, fan-nonbinary over this person … Solicitor General Elizabeth Prelogar.”

– Prof. Kate Shaw, Strict Scrutiny Podcast (2024)

When the United States of America attacked Tennessee’s ban on pediatric gender medicine (PGM) at the Supreme Court, its lawyer was US Solicitor General Elizabeth Prelogar.

Reporters swarmed the litigation, known as US v. Skrmetti. But they mostly left Prelogar alone, as though she were just some apparatchik carrying out the president’s agenda. That assumption would be wrong. By her own account, Prelogar decided which cases the US government would bring to the Courts of Appeal and Supreme Court. Not only that, but she advised on policy throughout the federal government as lawyers were crafting it – long before it was implemented or challenged. In an administration that tried to abolish sex through lawsuits and rulemaking, Prelogar was a central figure. Perhaps the central figure.

President Joe Biden recruited Prelogar before he took office in 2021. At the time she was a biglaw partner representing a young man who wanted to race against women in college track and cross-country.

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This post is about Elizabeth Prelogar.

The Striver (2008-19)

Prelogar is the consummate Democratic lawyer.

After graduating from Harvard Law School in 2008, Prelogar clerked for Judge Merrick Garland on the DC Circuit Court of Appeals, followed by one term each with Supremes Ruth Bader Ginsburg and Elena Kagan. Clerking twice at SCOTUS is unusual; she says she’s a “big fan” of the job and each of her judges taught her something different.

Prelogar was recruited to Hogan Lovells by Neal Katyal, who’d been President Barack Obama’s solicitor general. She stayed two years — presumably long enough to collect the firm’s SCOTUS clerkship bonus of around $280,000 — then served at the Department of Justice from 2014 to 2019. For much of that time she was detailed to the special counsel Robert Mueller’s investigation of alleged Russian interference in the 2016 election. Prelogar says the experience confirmed for her that she belongs in appellate advocacy (not scrappy, fact-intensive prosecution).

By age 39 Prelogar was known as a “capital insider” destined for an appointment to the DC Circuit.

The Ally (2020)

In October 2019, the ACLU argued before the Supreme Court that federal law protected a man’s right to pretend to be a woman at his job as a funeral director. Bundled with two cases about anti-gay discrimination, the argument marked the arrival of “trans” as a platinum-tier civil rights issue. The ruling would be known as Bostock.

Prelogar joined Cooley as a partner a few months later, in January 2020, and set to work fighting for trans rights alongside another Cooley partner, Kathleen Hartnett, who would later barely escape sanctions for trying to steer a PGM lawsuit away from a conservative judge.

In March 2020, Idaho became the first US state to ban males from girls’ and women’s sports. Prelogar and Hartnett joined ACLU attorneys, including the notorious Chase Strangio, in suing. They represented Lindsay Hecox, “a woman who was assigned the sex of male at birth” (he’s a man) who wanted to compete on the Boise State women’s track team. Their other client: a 17-year old girl (actually female) using the pseudonym Jane. According to the complaint:

“Jane has never had any problems with girls who are transgender or intersex being allowed to play sports. She would welcome the opportunity to compete against girls who are transgender or intersex in the future.

“In fact, a big part of what Jane loves about sport is the way that sport brings people together and helps a diverse group of young people learn to support each other and work toward a common goal as teammates. She wants everyone to have access to the joy sport brings, including girls who are transgender or intersex.”

The Idaho statute allows girls to prove their sex by a test of genetics, testosterone levels, or “reproductive anatomy.” Note the word “or” in that sentence. A quick cheek swab for DNA satisfies the requirement.

Prelogar, one of the best lawyers in the country, somehow overlooked the word “or.” She and her co-counsel let their teen client believe she would have to undergo a vaginal probe:

“Jane does not want to have to go through an invasive or uncomfortable test just to prove that she meets the state’s new criteria for being deemed a girl. She finds it horrifying that a doctor might have to examine her genitals just so she can play sports. She has never had a genetic test, hormone test, or transvaginal pelvic ultrasound (insertion and manipulation of a probe with a camera several inches into the vagina) ...”

These superstar lawyers might have copied their argument from the Idaho Democratic Legislative Campaign Committee, which had already slimed the bill as “child genital exploration legislation.”

The complaint defines sex the same way gender doctors did in the 1960s, musing that it comprises “multiple attributes” including “gender identity.”1 It falsely claims that the alternative to basing sex on gender identity is to classify it based on what a person’s genitals looked like when they were born.

As I’ve explained, the gender-doctor definition of sex makes it impossible to (coherently) articulate the purpose of gender medicine. You need the stable reference point that a binary, reproduction-based definition provides.

Suicide watch:

“Attempted suicide rates in the transgender community are over 40%. The only treatment to avoid this serious harm is to recognize the gender identity of patients with gender dysphoria and follow appropriate treatment protocols to affirm gender identity and alleviate distress.”

Note what’s missing. The complaint doesn’t say affirmation prevents or reduces suicide attempts. It’s just the “only treatment.” The high-powered drafters of this document presumably looked for evidence supporting affirmation and found it didn’t exist.

The plaintiffs scored a preliminary injunction; Idaho appealed to the 9th Circuit. Prelogar appears to have been the lead drafter of her side’s brief. The text quivers with indignation:

“[The statute’s] narrow definition of ‘biological sex’ is perfectly correlated to whether a woman athlete was assigned the sex of male at birth[.]”

Kudos to the Idaho legislature for capturing its idea of male “perfectly” without referencing baby genitals, even though its idea of male is entirely based on baby genitals (according to Prelogar).

Reprising the complaint’s false insinuation that the statute requires vaginal probes, Prelogar falsely accuses Idaho of “threatening all girls with invasive and humiliating exams of their reproductive anatomy[.]”

This line might be from Strangio:

“Appellants err in suggesting that ‘biological sex’ is a well-established legal concept and not one crafted in Idaho for the first time in 2020 to discriminate against transgender people.”

Why must sex be a well-established legal concept when it is an actual concept? Indeed, the brief later seems to acknowledge science is in play:

“The State’s false claim that transgender girls are identically situated to cisgender boys—i.e., that Lindsay is a man—contravenes science and basic decency, and should be given no weight.”

Prelogar left Cooley to join the Biden DOJ in January 2021. She called Strangio when she got the news.

A few months later Reuters profiled Hartnett for her heroic work in Hecox. The 9th Circuit ruled for him and Jane by keeping the preliminary injunction in place.

The Genderal (2021-25)

Before taking office in January 2021, President-elect Joe Biden announced that he’d nominate Rachel Levine, a trans-identified man, to be the assistant secretary of health at the Department of Health and Human Services (HHS). He also prepared to nominate Vanita Gupta, whose devotion to mixed-sex bathrooms dates back to 2016, as associate attorney general. And he asked Prelogar to take a post in the solicitor general’s office which would make her Acting SG. Months later he’d nominate her to the permanent role.

On inauguration day, Biden signed a bold executive order directing agencies to protect people based on “LGBTQI+” status and “gender identity.” It’s unclear how many of the points could be legally implemented, particularly those relating to HHS:

“The Secretary … shall … use … HHS’s authorities to protect LGBTQI+ individuals’ access to medically necessary care from harmful State and local laws and practices, and shall promote the adoption of promising policies and practices to support health equity, including in the area of mental health care, for LGBTQI+ youth and adults.”

“The Secretary of HHS shall consider how to use the Department’s authorities to strengthen non-discrimination protections on the basis of sex, including sexual orientation, gender identity, and sex characteristics …”

The authorship of the EO is not in the public record. It’s plausible that Prelogar and/or Gupta contributed.

The SG is America’s top courtroom lawyer and the #4 official at DOJ. She controls the government’s appellate strategy, deciding whether to appeal government losses and what position to take. While Prelogar spent much of her time briefing, mooting, and arguing at 1 First Street, she wasn’t cloistered. She interacted with other agencies quite a bit, by her own accounting in an April 2025 interview at Harvard:

“One of my favorite aspects of the job was being a true advisor and consultant within the executive branch. I had client agencies who would be contemplating massive rulemakings, the actions that touch on Americans everyday lives in myriad ways. We would often be able to come in at an early stage and help them game out where the litigation vulnerability was, how to think about crafting policy in light of those litigation risks, and ultimately advising them on options given where the courts are, given especially where the Supreme Court is, and providing that advice and consultation at the outset of a case.”

Several federal agencies – HHS, Education, and the Equal Employment Opportunity Commission – issued rules under Biden that interpreted sex discrimination laws to apply to people based on “gender identity.” They all relied on similar janky logic which echoed the EO’s suggestion that “gender identity” was somehow a part of “sex.” (I wrote about the Education Department’s published rationale and concluded: “The government lawyers are trolling us.”)

Multiple states and interest groups challenged these new rules. As far as I know, none survived motions for preliminary injunction before President Donald Trump came into office and abandoned them. It appears likely that Prelogar advised on this epic misadventure.

To be clear, I’m not arguing that Prelogar was behind every act of federal surrealism during Biden’s term. She probably didn’t hire the nonbinary public-fetishist Sam Brinton to safeguard nuclear waste, invite a moob flasher to a 2023 party on the White House lawn, script the president to tell a man dressed like Jacqueline Kennedy Onassis “you should have every single solitary right, including use of your gender identity bathrooms” in 2022, prosecute a surgeon for showing his hospital lied about PGM, or choreograph the 2022 Lesbian Visibility Day Roundtable that honored long-haired men. But one has to wonder what this shrewd attorney was thinking as the phantransmagoria twinkled down the street from her office.

Biden Does Pediatric Gender Medicine

HHS officials learned back in 2020, before Biden took office, that a review team working for WPATH (the transgender advocacy organization that publishes “medical” guidelines) “found little to no evidence about children and adolescents” and that WPATH was sitting on its findings. One official, Christine Chang, wrote back: “Knowing that there is little/no evidence about children and adolescents is helpful.” Chang appears to still work at HHS today.

But during the Biden years her work was in the clutches of Levine. In spring 2022, he spread propaganda in response to red state campaigns to ban pediatric gender medicine.

That year Levine also pressured WPATH, the trans medical lobbying association, to crank out its latest guidelines, SOC8. According to one WPATH member, Levine felt “[t]he failure of WPATH to be ready with SOC 8 [was] proving to be a barrier to optimal policy progress[.]” After reviewing a draft, Levine demanded that WPATH remove its age limits for certain treatments. (WPATH complied.)

In the midst of Levine’s moving and shaking, DOJ joined the legal challenge to Alabama’s ban in May 2022. Nicholas Confessore reports in the New York Times that “some legal experts outside the administration … were surprised at the decision” because intervention like that is rare.

The Confessore story, published in June 2025, relies heavily on unnamed former Biden officials. One is a “senior [DOJ] official.” Others seem to be from elsewhere, like the White House. They try to palm off responsibility:

“As the Biden administration grappled with the new bans, several former aides and officials told me, officials there usually deferred to the L.G.B.T.Q. advocacy groups and the medical associations about the scientific questions around gender-affirming care.”

This may be true of the White House and HHS. But not DOJ. Lawyers can’t ethically “defer to advocacy groups” when assembling their arguments. As soon as they filed anything on PGM “science” in court, they took ownership. DOJ’s civil rights team started fighting for PGM in 2021. The agency filed its first of several PGM appellate briefs (Prelogar’s bailiwick) in January 2022. Plus, Prelogar had already studied the basic “scientific questions around gender-affirming care” when she represented Lindsay Hecox.

Confessore continues:

“The administration’s top concern, according to two former aides, was that the bans were so broad that they might limit dysphoric children from even getting therapy. ‘The internal conversations were entirely about getting kids access to mental health care, and maybe puberty blockers,’ one official said. ‘That is where the president’s head was on these issues: The Republicans are using the power of the state to stop kids who feel gross about their bodies from seeing a therapist.’”

In other words, “it’s not happening.” But as Confessore reports, Levine was saying “it’s good that it’s happening” back in spring 2022. In May of that year, DOJ acknowledged in an Alabama filing that WPATH guidelines permitted mastectomies for minors.

It may be that White House officials convinced themselves PGM bans were really about therapy. But it’s hard to believe DOJ lawyers – who analyzed statutes and pored over briefs on both sides of the issue – were so ignorant.2

Ultimately, Biden’s view on PGM bans might not have mattered. Prelogar insists that he never told her what to do. “It's not the norm for the White House to be directive about the positions we're taking.” The SG has operated independently “since what feels like time immemorial.”

Confessore pins DOJ’s enthusiasm for PGM litigation on relatively low-level lawyers. He doesn’t name Prelogar, even though she must have been a key player in these discussions (emphasis added):

“When Tennessee’s ban passed in February 2023, lawyers in the department’s civil rights division lobbied to move aggressively. The attorney general, Merrick Garland, was at first skeptical. In conversations, Garland and his advisers weighed whether the case was strong enough to merit the time and resources it would consume if the civil rights division were to intervene. Eventually, though, Garland signed off. Most of his team viewed the case as a straightforward matter of civil rights enforcement …”

As Garland’s former clerk, Prelogar presumably had a strong relationship with him – and some sway when he overcame his initial “skeptical” attitude.

Another of “his advisors” was probably AAG Gupta, who served until February 2024. But her role would seem to be secondary. She’s not publicly linked to Skrmetti and she didn’t control appellate strategy. Likewise, Kristen Clarke, who headed DOJ’s civil rights division, would have been in the mix as one of those aggressive civil rights lawyers – but she was outranked by Prelogar and Gupta.

Team Trans won a preliminary injunction against Tennessee’s ban but then lost on appeal. Should DOJ appeal to the Supreme Court? Its thinking, according to Confessore:

“[O]nce the A.C.L.U. went ahead [and appealed] in Tennessee, this [DOJ] official told me, the Biden administration had to follow. Steering clear of Skrmetti ‘would have telegraphed loudly to the court that the department didn’t have the courage of its convictions,’ the official said.”

It’s an odd line that boils down to: DOJ petitioned because it felt a sense of conviction over PGM. Again, the decisionmaker was Prelogar – she didn’t receive orders from her boss, the AG.

Prelogar explains how the SG decides to file an appeal:

“Anytime the federal government loses on an issue anywhere and there's an interest in seeking further review, you have to get personal authorization from the solicitor general, and that plays out through a process … where you have everyone writing a recommendation. … You'll have the component that has subject matter expertise at DOJ weigh in ... Agencies likewise, are invited to weigh in.”

In sum, HHS and civil rights lawyers at DOJ likely had a voice in appealing Skrmetti to SCOTUS, with Prelogar wielding the ultimate power.

Alabama later argued in an amicus brief that DOJ appealed Skrmetti so it could argue to freeze the litigation in that state, before the discovery became public. It’s a plausible theory that's consistent with Prelogar caring a lot. In any case, the judge denied DOJ’s motion and the damning revelations spilled into view in summer 2024. Confessore describes the fallout:

“There was … growing tension between the A.C.L.U. and the Justice Department, three former government officials told me. (The A.C.L.U. and a spokeswoman for Prelogar denied this account.) … In private, … some administration lawyers worried that their allies had pushed them onto thin scientific ice.”

Those worried “administration lawyers” didn’t necessarily work at DOJ. White House aides were miffed about trans in general because, they said, they’d just learned about Levine meddling in SOC8. “Everyone was like, holy cow — did Rachel Levine really go out and lobby for 9-year-olds to get surgery?”

So who at DOJ had tension with the ACLU? Maybe no one – it’s possible that Confessore’s shadowy DOJ source misled him to salvage the collective reputation of Biden’s DOJ posse. But if we assume good faith …

I don't think Prelogar was among the officials feeling tension with the ACLU. First, she denies it. Second, her work on Hecox, her oversight of PGM-ban appeals since then, and her behind-the-scenes access to Alabama’s confidential discovery suggest she already knew the evidence for PGM was weak by the time that discovery became public.

Third, Prelogar didn’t try to distance herself from Strangio’s shifty rhetoric at oral argument. In fact she was shiftier.

Prelogar Argues Skrmetti (Dec. 4, 2024)

The Supreme Court heard Skrmetti on December 4, 2024. It was Prelogar’s penultimate appearance as SG. The transcript shows a vigorous argument.

Medical Harms

Justice Clarence Thomas presses Prelogar on whether testosterone (steroids) affects girls and boys differently – a crucial point because it undermines her claim that girls and boys should have equal access to the drug (in fact boys don’t have access to T to satisfy cosmetic desires, but anyway). The answer is yes, it wallops girls’ clitorises, vaginas, and uteri, causing pain, sexual dysfunction, and sterility; boys lack those body parts. The record contains an expert report to that effect. Here’s how Prelogar answers the question.

Justice Thomas: Is there no difference … if a girl takes testosterone or if a boy takes testosterone?

Prelogar: [Tap dances about what the district court judge found.]

Thomas: Is there no physiological difference?

Prelogar: Certainly, I understand that there are biological differences between males and females, but when it came to the specific risk factors that the State was focused on …

Thomas: Well, I'm more interested in whether or not there is a difference in testosterone and its reaction in a male as opposed to in a female.

…

Prelogar: So, if you take hormones, they will prompt the development of secondary sex characteristics, and -- and whether you're a male or a female, if you take testosterone, you might develop a deeper voice register …

Prelogar is then rescued by an interrupting Justice Ketanji Brown Jackson, who will ultimately side with her.

“Evidence”

Justice Alito zeroes in on an outrageous claim in Prelogar’s petition for Supreme Court review, which she filed in November 2023:

"Overwhelming evidence establishes that the appropriate gender-affirming treatment with puberty blockers and hormones directly and substantially improves the physical, psychological well-being of transgender adolescents with gender dysphoria."

Prelogar’s brief cited the District Court. That decision did extol “evidence” – but it meant legal evidence, i.e., affidavits filed by gender doctors. Not scientific evidence. To illustrate, the judge quoted plainly dubious opinions. For example, Deanna Adkins:

“All of my patients who have received medical treatment for gender dysphoria have benefitted from clinically appropriate treatment.”

Two problems. First, Adkins had treated hundreds of patients so it’s suspicious that all of them benefited and she was sure of it. Second, Adkins is an endocrinologist and not a mental health professional. She lacks expertise to evaluate the benefits of PGM. So even taking “evidence” to refer to expert opinion (not scientific studies), the judge was wrong to see it as “overwhelming” and Prelogar was wrong to parrot his error.

Alito doesn’t point out that there was never “overwhelming evidence” for PGM. But he recounts some recent developments that expose the claim and asks Prelogar if she wants to “modify that and withdraw the statement[.]”

After allowing “that there is a lot of debate happening here and abroad about the proper model of delivery of this care,” Prelogar subtly swaps out the term “evidence” for “consensus”:

“I stand by that there is a consensus that these treatments can be medically necessary for some adolescents, and that's true no matter what source you look at.”

So Prelogar sanitized the judge’s mistake and plugged it into a Supreme Court brief in November 2023. Then she quietly abandoned it in her August 2024 brief, after the whole world learned just how risible the claim was. Finally in December 2024, standing before Alito, she backed off it sneakily, so that only the most obsessive TERF blogger would realize she had. The claim she substituted it with – “consensus” – was also false, as some doctors dispute that PGM is medically necessary for anyone.

Another whopper in the 2023 brief: that PGM “directly and substantially improves the physical … well-being” of trans-identified teens. The District Court decision she cites does not say that.

Suicide

Prelogar points out that no other countries have banned PGM and speculates it’s because of “the recognition that this care can provide critical, sometimes life-saving, benefits for individuals with severe gender dysphoria.”

Prelogar knows PGM doesn’t save lives. Surely she read Tennessee’s briefs, which confront the suicide myth head-on. Later in the hearing Strangio will concede the point. It’s striking that Strangio, whom Confessore depicts as a nutjob, demonstrates higher ethical standards than the golden girl Prelogar.

One more suicide lie from Prelogar:

“[W]hat this law is doing is saying we're going to make all adolescents in the State develop the physical secondary sex characteristics consistent with their gender or with their sex assigned at birth, even though that might significantly worsen gender dysphoria, increase the risk of suicide …”

The next month Biden left office and Prelogar decamped to Harvard Law School for a visiting-professor gig. In June, Lambda Legal honored her with a “Liberty Award” at a fundraiser in New York City. The CEO said he was “awestruck” by her performance in Skrmetti. It “exemplifies … professional excellence and leadership for LGBTQ+ communities[.]”

The Loser (2025)

This year President Donald Trump appointed John D. Sauer as SG. He has experience litigating against gender nonsense. (I wrote about his team’s challenge to PGM expert witness Daniel Shumer.)

As to Skrmetti, the Supreme Court ruled for Tennessee in June 2025. Harvard law professor Jeannie Suk Gersen, writing about the decision in the New Yorker, expressed sympathy for the gender doctors’ legal argument and criticism of the way Prelogar presented it:

“In its 2023 petition to the Court, Biden’s Justice Department came in with overblown claims of scientific consensus …

“[T]he failure to sufficiently acknowledge medical uncertainty made even knockdown legal arguments to the Court seem untrustworthy. … I had wondered if the loss of credibility regarding medical evidence would push away the possible swing votes.”

Even a genteel peer of Prelogar, who uses the word “transgender” uncritically and thinks gender doctors have “knockdown legal arguments,” can’t pretend that how she behaved in that case was right. (Conservative legal commentator Ed Whelan has been on Prelogar’s case since before oral argument.)

What was Prelogar thinking as she plotted her course through Skrmetti? She once described a moment when she couldn’t decide what position to take as SG in a high-stakes case:

“This is going to sound really corny, but I had spent a lot of time on it and one night I went out for a run … I ran to the Lincoln Memorial and, like, stood there and looked up at Lincoln … and thought to myself, I had been put in this role to exercise my judgment. And this is a hard issue when you think about the interests of the United States, which line up on both sides. But it's not a hard issue when you think about what is the just or right answer in this context. I'm going to do that thing.”

OK, but how does Prelogar figure out what is just? I’ve listened to several hours of her talks and interviews and I have no idea.

Prelogar preaches the importance of characterizing legal precedent accurately at oral argument, if only “to advance the greater good of making sure we maintain our integrity with the Court.” What about presenting the facts accurately? What about evaluating the facts yourself? She must know after years of grappling with briefs and expert reports against PGM that it isn’t supported by evidence, doesn’t prevent suicide, and injures kids. So what makes it “the just or right answer”?

Prelogar is returning to Cooley this summer. The Supreme Court will hear Hecox in the coming term, perhaps in November. Hartnett is counsel of record. Does Prelogar want to rejoin the litigation team? Does she want to lend her star power by arguing it, even though the trans brand has tumbled from its Bostock-era zenith?

We'll soon find out if Elizabeth Prelogar has the courage of her convictions.

Update (Jan. 19, 2026): Prelogar did not rejoin the Hecox litigation team.

As the states racked up wins in other courts and more damning facts about PGM came to light, the conventional wisdom shifted. Now observers on all sides expected the US Supreme Court to let PGM bans stand.

It got the chance in US v. Skrmetti, a case about Tennessee’s ban (“SB1”). At oral argument the Court’s liberal minority sounded unhinged. Justice Sonia Sotomayor casually referred to people choosing their sex and likened cross-sex hormones to aspirin; Justice Ketanji Brown Jackson repeated absurd analogies to interracial marriage four times, apparently trying to stigmatize PGM’s opponents.

The Court’s ruling came down yesterday: 6-3 along partisan lines, rejecting the arguments that SB1 is unconstitutional. Chief Justice John Roberts, a low-key writer known for trying to defuse hot controversies, drafted the majority opinion. Some of his colleagues penned bolder concurrences.

Sotomayor wrote “in sadness” for the liberals, comparing Tennessee’s position to Virginia’s 1966 defense of its ban on interracial marriage. No, she never acknowledged that black and white people are the same whereas male and female bodies are different.

This post is about Skrmetti.

The pro-trans parties in Skrmetti are kids, their moms, and a doctor (plaintiffs). The USA was pro-trans at the time of oral argument but has now changed sides thanks to the change of administration. I’m going to break protocol and refer to that whole team as the ACLU because those lawyers (representing the plaintiffs alongside an elite commercial law firm) are the actual driving force behind this case. ACLU lead counsel Chase Strangio actually seems to be friends with the people-pleasing Solicitor General who argued for the Biden administration.

Why It’s Not Discriminatory to Keep Kids Off Drugs

The ACLU argued that SB1 discriminated by sex because it barred different drugs for boys than for girls, and by “transgender status” because it restricted drugs related to transgender identity. (The ACLU did not challenge SB1’s surgery provisions.) Each of those grounds, it argued, triggered “heightened scrutiny,” which imposes a higher bar on Tennessee in defending the validity of the law.

The Supreme Court holds that SB1 does not treat people differently on either of those bases. Rather, it treats people differently based on their age and the “medical purpose” they want the drugs for (“sex transition” as opposed to, for example, precocious puberty). These bases don’t trigger heightened scrutiny. Tennessee only needs to show that SB1 has a “rational basis.”

SCOTUS could have kicked it back to the district court to figure out whether Tennessee had a rational basis. Instead it cuts to the chase and decides on its own, largely based on the legislature’s findings, that the law is kosher.

Along the way, SCOTUS finds that the legislature’s rationale was not a pretext for “invidious discrimination.”

What Is a Woman? Someone Who Only Exists in Right Wing Concurrences

Famously (within the TERF blogosphere) the Supreme Court decided its one previous big trans case, Bostock, without defining “transgender” or “gender identity.” In a ruling by Justice Neil Gorsuch, it loosely defined “sex” as relating to “biological distinctions between male and female.” That played into the ACLU’s hands because its lawyers portray sex as an arbitrary melange of characteristics.

In Skrmetti, SCOTUS again declines to tell us what a woman is. But it drops tantalizing clues.

Roberts’ majority opinion defines transgender people as those whose “gender identity does not align with their biological sex.” He does not define gender identity or sex.

In some ways Roberts implies sex is immutable. For example, he never uses terms like “assigned sex” or “birth sex,” and he approves of Tennessee’s position that “kids benefit from additional time to ‘appreciate their sex’ before embarking on body-altering paths.” This suggests kids have a sex — one sex no matter what. On the other hand, Roberts repeatedly refers to “sex transition treatments.” This suggests the possibility of sex change. Is he, like Gorsuch, falling into the ACLU’s trap of confusing sex with sex traits?

In a concurrence, Justice Samuel Alito – known as an archconservative – cites definitions of “sex” in use at the time the Court began deciding sex discrimination lawsuits in 1971. From here he concludes that “‘sex’ is the status of having the genes of a male or female.” Pretty good! But not a single one of his colleagues joins him. This glass is one-ninth full.

Alito also addresses gender head on, noting that it has various meanings. Quoting the 2025 Cambridge English Dictionary, he argues the Court has never

“used ‘gender’ in the sense in which it is now sometimes used, i.e., to denote ‘a group of people in a society who share particular qualities or ways of behaving which that society associates with being male, female, or another identity.’”

Alito misses the scandal. The ACLU doesn’t define gender that way – it sneakily doesn’t define gender at all and encourages judges to project onto the empty word. That’s key to how it tricks judges into finding that boys are girls.

White Lies Matter

Skrmetti seems like a smooth decision on the surface. But it contains errors that hint at corrupt logic — and the ACLU might exploit some of them in future lawsuits.

Roberts characterizes 1979 transsexual medical guidelines (SOC1) as providing “that hormonal and surgical sex reassignment treatments should be administered only to adults.” In fact SOC1 sanctioned treatment for one type of person under age 18: those “declared by the courts as legal adults[.]”

Why gloss that over? I think Roberts is grasping onto the moderate myth that gender medicine used to be cautious and rational but lately has gone off the rails. It’s a comforting narrative because it means you don’t have to tackle the entire trans enterprise. But the truth is, gender doctors have always practiced on very young people (particularly "street kids" who may be prostitutes) and they have always cared more about law than medicine.

In the course of drawing a neat syllogism, Roberts claims “only transgender individuals seek puberty blockers and hormones for [gender dysphoria].” The ACLU will quote this snippet in lower courts to argue that everyone who pursues gender drugs is driven by an innate gender identity rather than, e.g., social contagion.

It’s key that Tennessee had noble reasons for passing SB1 – not just animus toward “transgender” people. Roberts claims the ACLU hasn’t “argued that SB1’s prohibitions are mere pretexts designed to effect an invidious discrimination against transgender individuals.” I think that’s incorrect. Here’s the ACLU’s brief right after laying out the law regarding invidious discrimination:

the text of SB1 openly declares precisely such an impermissible purpose: to require transgender minors to conform to their sex assigned at birth by banning treatment that would enable them to “live as” and “identify with” an “inconsistent” gender identity. ... The fact that SB1 … enforce[s] Tennessee’s preference for gender conformity compels heightened scrutiny.

The Supreme Court can make things up about parties’ briefs if it wants to. The problem is that the ACLU has made stronger, more explicit “animus” arguments about other states where the legislative debate was spicier, like Florida. Could those laws, although worded similarly to SB1, be unconstitutional? Roberts emphasizes in this same passage that state bans pass constitutional muster “under these circumstances” – where there is no invidious discrimination.

And finally, Roberts uses preferred pronouns. Because lawyer culture is hierarchical and Roberts sits at the apex of the American legal system, this will dog advocates who are pushing back on the practice in lower courts. Arguing for the right to use sex-based pronouns will be harder; arguing that preferred pronouns are perjury will be practically impossible.

What’s Next

This decision doesn’t vaporize all the litigation over PGM bans. Most (all?) of the challenges include parental rights claims, which this decision doesn’t touch. (Those arguments will fail eventually.) Some of the lawsuits are proceeding under state constitutions, as in Montana. (They might prevail.) And Roberts left the door ajar for “invidious discrimination” arguments.

So we might see the ACLU stagger onward in its quest to make child castration and physician-assisted steroid addiction a constitutional right. “Our fight is so far from over,” ACLU attorney Sruti Swaminathan said yesterday. The decision “leaves open so many avenues for continued litigation,” according to Strangio.

If you think they’re just posturing, ask yourself: what else is the ACLU going to do with its tens of millions of dollars in gender funds? These lawyers’ raison d’etre is to fight about the Constitution in the highest venue that will take them. And their options for trans lawsuits aren’t infinite. Rival LGBTQ orgs cover some of the ground and the task of destroying girls’ sports is increasingly shouldered by blue state taxpayers.

It appears the trans lobby wants to scapegoat Chase Strangio and a few other “radicals,” like the former HHS official Admiral Rachel Levine, for disgracing it in Skrmetti – as though the movement for constitutionalized sex mimicry is fundamentally sound and had some plausible path to victory if only it had slowed its roll. This narrative is meritless. But the New York Times is eagerly printing it.

Skrmetti could have wiped out precedents in the 4th and 9th Circuits holding trans to be a quasi-protected class. Alas, only the three concurring conservatives wanted to do so — the other three left the question alone. Kids are still entitled to use opposite-sex bathrooms in states like Virginia if they say they are “transgender.”

In the next few weeks the Court will rule on another trans case, Mahmoud, about whether religious parents have a right to opt their young children out of “LGBTQ” lessons. I’ll wait until then before psychoanalyzing the justices. For now, I’m going to enjoy Juneteenth.

This post was lightly edited on June 26, 2025.

Ms. Baraki admitted that she and Ms. Caldeira … used their “observations of kids in the classroom” to determine which students to invite to the Equality Club. Ms. Baraki admitted that students often don’t want to attend on their own and “need sort of a little bit of an invitation.”

–Konen v. Spreckels (complaint, 2022)

Defendants did not act with intent to injure. To the contrary, they sought to help the child.

–Littlejohn v. Leon County (11th Cir. 2025)

Therapists and doctors started advising parents to “socially transition” their young children around 2000. Back then they seemed to target kids who were gender-nonconforming and may have expressed cross-sex identity spontaneously. Over time the practice spread to kids who became “gender dysphoric” only after exposure to the idea at school or online. Now, according to lawsuits, teachers and counselors all over America are actively encouraging middle school kids to pretend to be a different “gender” – and school policy obscures the psychological escapade from parents.

The secrecy, change of “identity,” and hot-breathed solicitude from school officials appear to stress out some kids to the point of mental breakdown.

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This post is about “secret school transition” and the parental rights movement that fights it. As I often do, I’ll try to answer the question: Why does the trans movement keep winning in court even though the facts are against it?

How to Help a Child Lead a Double Life

Asking people to use pronouns different from your sex is known as “social transition.” Gender lobbyists believe social transition is meaningful and, in fact, a type of treatment akin to using hormones.

GLAAD:

Transition is the process a person undertakes to bring their gender expression and/or their body into alignment with their gender identity. ... Transition can include:

Social transition – Telling family, friends, and co-workers, using a different name, using different pronouns, dressing differently, starting or stopping wearing make-up and jewelry, etc

Legal transition …

Medical transition …

These steps may also be referred to as gender affirming care.

The American Academy of Pediatrics calls this practice “social affirmation” and ranks it among medical interventions as a “component” of “gender affirmation.” Its website has argued that pronoun use is a life-or-death matter. The suicide hotline Trevor Project claims pronouns are “words with big impact.” According to the Minnesota Department of Health, “using a person’s correct pronouns saves lives.”

Social transition can also mean using bathrooms designated for the opposite sex or a special bathroom (e.g., nurse’s office); competing in sports against the opposite sex; and changing clothes in the opposite sex’s locker room.

WPATH SOC8, the clinical guidelines for “transgender” healthcare, helpfully explains that social transition “has no singular set of parameters or actions.” Whatever it is, it “should originate from the child and reflect the child’s wishes[.]”

Who’s Transing What Now?

Gender lobbyists use “transition” as a reflexive verb – you socially transition [yourself] by asking people to pretend you’re a different sex; those people then affirm what you’ve already done.

Parental rights advocates scoff at the idea of children transitioning themselves. For them, transing is transitive: a teacher socially transitions a student by referring to them with wrong-sex pronouns, which reinforces a ruse, just as a doctor medically transitions a patient by prescribing her anabolic steroids.

Gender lobbyists stonewall about adults’ role in kids’ pronoun choices, always returning to their talking point that kids call the shots. In a Colorado case I discuss below, the school district waves away allegations that its employees manipulated sixth graders and frames the issue:

The families clearly desire to control their children’s gender identity and expression in public school[.]

Parents think they’re in a tug-of-war with the school over an innocent child. The school says the parents are in a tug-of-war with the child over innocent teachers.

Secret or Undisclosed?

When schools call kids by preferred pronouns without parental notification, parent advocates call it “secret school transition.” I’ll abbreviate it to SST. In 2023 the Heritage Foundation estimated that over 1,000 American school districts had SST policies, affecting more than 10 million students.

Gender lobbyists use more passive language. The Tenth Circuit quoted a Colorado school’s guidance:

School personnel should not disclose information that may reveal a student’s transgender or non-binary status to others, including students, parents …

When contacting or communicating with a parent/guardian of a transgender or non-binary student, school staff should use the name and pronouns that the student’s parent/guardian use, unless the student requests otherwise.

The school district defended itself by noting it wouldn’t lie if parents used the magic words:

“The District’s Guidelines do not require student consent or prohibit school employees from sharing a student’s gender identity or expression upon parental request. Nor do the Guidelines advise employees to engage in any subterfuge.”

SST doesn’t make a lot of sense. It’s based on the theory that kids need to be recognized as their chosen “gender” – but then don’t their parents need to be brought on board? It’s also predicated on a theory that parents can’t be trusted – but the school sends the student home to these supposed monsters every afternoon.

SST conscripts the peers of trans-identified children into (1) propping up a falsehood, (2) propping up the classmate’s mental health so they don’t kill themselves and (3) keeping a secret from the classmate’s parents and anyone who might squeal to them (their own parents).

SST generates paperwork. I examined the regime of Montgomery County, Maryland and came away frazzled.

Some data suggests social transition locks in a trans identity so that kids are more likely to medicalize. But in a recent review of evidence, the US Department of Health and Human Services found that the “benefits and harms of social transition remain unknown” because the studies on it are flawed.

The Girls Who Seek Affirmation

Parents have launched a barrage of lawsuits targeting SST over the last several years. Represented by right-leaning law firms like Alliance Defending Freedom, Child and Parental Rights Campaign, and Center for American Liberty, they argue that schools violated their constitutional right to direct the upbringing of their children.

The legal minds in this space include Vernadette Broyles, president and founder of CPRC, and Sarah Parshall Perry, vice president of Defending Education. Many of the links in this post go to Perry’s analyses – here’s a comprehensive report from her published June 2024.

The kids fit a pattern: at the time school officials transed them, they were middle school girls dealing with ordinary stressors. The intervention seemed to exacerbate their struggles. When the parents found out about their daughters’ secret identities, they were able to reel them back to solid ground but only at significant effort, stress, and expense. They seek damages for the money they spent (counseling, private school) and emotional distress.

The lawsuits I’ve read make no mention of “gender nonconformity” before SST. I can’t say whether this cohort is representative of SST victims or if movement lawyers decided to focus on them because judges are likely to find the “ordinary 12-year old girl” scenario more noxious than, say, the SST of a delinquent 16-year old gay boy.

In Lee v. Poudre, two sets of parents jointly sued a school district for how it treated their daughters, CL and HJ. (One of the plaintiffs, Erin Lee, has since become a prominent parents’ rights advocate.) The 10th Circuit summed up the parents’ incredible allegations (citations omitted):

In fall 2020, the Lees moved to Wellington, Colorado. Their twelve-year old daughter, C.L., enrolled at Wellington Middle-High School (WMS) as a sixth grader. C.L. struggled to make friends. Her homeroom teacher, Jenna Riep, took an interest in her, and had several one-on-one conversations with C.L. about C.L.’s gender identity. Among other things, Riep stressed to C.L. that C.L. could reject her feminine pronouns. Despite those conversations, C.L. never questioned her gender identity.

On May 4, 2021, Riep, who was also the school’s art teacher, invited C.L. to an after-school meeting, describing it as being for the “GSA Art Club.” C.L. didn’t know that GSA was shorthand for Gender and Sexualities Alliance, and she agreed to attend the meeting because she liked art. Soon after arriving, C.L. saw that the meeting wasn’t about art. Instead, for ninety minutes, Kimberly Chambers, a substitute teacher in the school district, lectured the assembled students about gender identity and sexual orientation. Among other things, Chambers told the students that if they were not completely comfortable in their bodies, they were likely transgender. Her message led several students to announce during the meeting that they were transgender. For those students, Chambers awarded themed prizes, including LGBTQ-pride flags.

Though C.L. had not questioned her gender identity or experienced symptoms of gender dysphoria before this, she came out at the meeting as transgender. She did so after Chambers advised the students that transgender youth are more likely to attempt and complete suicide than their cisgender peers. Before the meeting ended, Chambers warned the students that it might not be safe to tell their parents they are transgender or about the meeting. Instead, she said that she could be trusted and gave the students her personal cell-phone number and Discord information so they could talk with her at any time.

As C.L. was leaving the meeting, Riep pulled her aside and reemphasized that she shouldn’t feel pressured to tell her parents about the meeting. Even so … she told her parents that she was transgender. … Astonished at what they had heard, the Lees disenrolled C.L. from the district the next day and enrolled her in a private school. Over the next few months, C.L. experienced suicidal thoughts …

After the Lees disenrolled C.L. from attending school in the district, WMS staff internally discussed involving child-protective services to conduct a wellness check on C.L. When the Lees contacted Kelby Benedict, the WMS principal, to discuss what happened at the GSA meeting, he insisted on going to the Lee home so that, unbeknownst to the Lees, he could check on C.L.

The parents’ allegations about HJ, who was transed by the same adults at the same school, during the same year as CL:

After [attending] two [GSA] meetings in the spring semester of sixth grade, H.J. began suffering from suicidal ideation. Because H.J. had been told that transgender people were more likely to commit suicide, H.J. believed that her suicidal thoughts further affirmed that she must be transgender. That in turn increased the intensity of her suicidal thoughts. This cycle continued for about six months and harmed H.J.’s mental health. During this time, H.J.’s friendships with classmates deteriorated, and she became nervous about attending classes taught by Riep, who kept asking her to return to the GSA meetings. Things got so bad that H.J. asked her parents to homeschool her so she wouldn’t have to go to WMS. Soon after that, H.J. attempted suicide.

The school district moved to dismiss the lawsuit, winning at the district court and, in April, at the 10th Circuit. The Court found the school’s SST policies never kicked in – Riep and Chambers didn’t hide any pronouns from parents. The parents are expected to appeal, either to the full “en banc” 10th Circuit or the US Supreme Court.

The school district’s appellate brief repeatedly refers to the parents’ “beliefs,” insinuating that they’re religious nuts. In arguing that parents have no “control of public education” the district gratuitously cites a 2024 law review article titled “Anti-Transgender Constitutional Law.” It could be a warning to judges that professors stand ready to call them “anti-transgender” if they rule against SST.

Other federal SST lawsuits include:

• Foote v. Ludlow (Mass.) followed a similar trajectory as Lee in the 1st Circuit and is being appealed. The court ruled that SST simply didn’t violate parental rights.

• Littlejohn v. Leon County (Florida). The 11th Circuit recently ruled against the parents, en banc, incorrectly treating the SST as though it were perpetrated by rogue officials even though they were following policy. The plaintiffs are expected to seek Supreme Court review. One of them, January Littlejohn, has become a parents’ rights advocate who worked to pass a “Parents’ Bill of Rights” in Florida.

• John and Jane Parents 1 v. Montgomery County (Maryland), was dismissed by the 4th Circuit. The Supreme Court declined to review in 2024.

• Vitsaxaki v. Skaneateles was recently dismissed by the Northern District of New York and is on appeal to the 2d Circuit.

• Regino v. Chico was dismissed by the Eastern District of California but recently revived by the 9th Circuit.

• Parents Protecting Our Children v. Eau Claire, in Wisconsin, was dismissed by the 7th Circuit because the parents didn’t claim injury (they wanted to challenge the policy before it hurt their kids). The Supreme Court declined review in 2024.

• Willey v. Sweetwater was dismissed by the District of Wyoming in April because school officials revealed the SST to the mother after she demanded info about pronouns specifically.

Parents have fared better in state court:

• In TF and BF v. Kettle Moraine, a Wisconsin court ruled that SST violated parents’ rights.

• In Konen v. Spreckels, the California school district settled with a mother for $100,000 – perhaps because the teachers in question had been caught on tape discussing their wily recruitment and SST methods at a conference. The mother was represented by Harmeet Dhillon, who is now the Assistant Attorney General for Civil Rights at the US Department of Justice.

The Law

The US Constitution doesn’t explicitly protect parental rights, but the Supreme Court has found an implied “liberty interest” to raise your kids without government interference by reading between the lines of the 14th Amendment’s guarantee of due process. Known as “substantive due process” (SDP), it’s the same reasoning the Court used to strike down anti-sodomy, anti-gay marriage, and anti-abortion laws (before changing its mind in Dobbs).

If parents are “fit,” the doctrine goes, then they have the right to “direct the upbringing” and “control the education” of their children. Fitness is a low bar and parents are always presumed to meet it – it’s not an issue in the SST lawsuits.

So what does it mean to “direct the upbringing” of a child? There are really only three Supreme Court decisions on point.

Meyer (1923) struck down a Nebraska law that banned schools from teaching foreign languages to children. Pierce (1925) struck down an Oregon law that required parents to send their kids to public schools. Both statutes grew out of a xenophobic craze for assimilating immigrants’ kids.

The Court’s most recent parental rights ruling is Troxel (2000), which narrowed a Washington law that allowed anyone (typically grandparents) to secure visitation rights with a child if a court found it was in the child’s best interests. Justice Sandra Day O’Connor:

So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.

In SST cases, parents argue that teachers and counselors injected themselves into family life by socially transitioning their kid. School districts say they did nothing more than provide education on gender, which is a real thing, and follow the child’s lead.

Religious rights rulings come up in discussions of SDP because they lay out what parents may object to in public schools. Lawyers also quote bits and pieces from fitness cases to emphasize the Constitution’s respect for parents.

FERPA

A federal statute known as FERPA grants parents the right to access their minor children’s school records. This means schools can’t flat-out refuse to provide records that reveal students’ preferred names and pronouns or lie to parents who specifically ask about them.

But parents can’t sue under FERPA. Only the federal government can take action against a school district that violates it. And once a parent realizes the violation, they don’t need the right anymore – they’ve figured out SST occurred.

If you’ve ever wondered why state laws and school district policies around SST are so convoluted (they don’t simply say: “hide the pronouns!”), it’s because they’re stepping around FERPA like a cat burglar.

Why Parents Keep Losing

The SST rulings take different paths in their logic and apply slightly different laws depending on their jurisdiction. The 10th Circuit’s decision is well-reasoned; the 1st and 11th Circuit’s are written in gender patois.

But there seem to be common challenges haunting all the parents’ cases. When judges make blunders (11th Circuit), cop-out arguments (4th Circuit), or foolish analogies (1st Circuit) to reach pro-SST outcomes, I think it’s because several basic questions are nagging them.

What is the fundamental right, exactly?

It’s actually hard to nail down the parental right being violated. Here are the options:

The right to choose/know what pronouns school officials use to refer to your child

• There’s caselaw from the religion context limiting what schools must share with parents (since sharing info can become an administrative burden).

• In Lee, the parents argued for mandated disclosure only “on the transgender issue.” The 10th Circuit complained: “the parents cite no authority for what ‘the transgender issue’ includes, and fail to argue why the right would apply only to that information.”

• So if the parents are aiming at pronoun shenanigans and nothing more, they must explain why SST is special compared to all the other ways that schools screw up kids.

• This framing doesn’t get at the fundamental problem of predation.

The right to protect kids from predation

It’s hard to codify what verbal predation is. There are rare instances where we might want teachers to have one-on-one conversations with students about personal subjects.

The right to opt kids out of sex ed

• It’s tempting to link gender indoctrination with sex ed because parents already have rights related to the latter under state statutes.

• But gender indoctrination is not sex ed. It’s not based on biology, it doesn’t convey useful information, and it has nothing to do with sexual orientation (except that it disproportionately preys on gay kids).

• The trans movement wants people to believe their dogma is sex ed.

• There’s bad legal precedent. Parents have already tried to expand rights against sex ed under SDP and failed.

The right to opt kids out of gender ed

What is gender?

The right to choose your child’s sex

The ACLU believes sex is socially constructed, at least in part, so this argument isn’t cra–well, I didn’t make it up, anyway.

The right to control the child’s medical treatment

• In Foote, the 1st Circuit insisted social transition is not medical while noting it might be medical in another context – leaving the door open to calling it medical when gender lobbyists ask them to. (As I’ve explained, this court is the worst.)

• The ACLU has referred to psychologists as “medical” experts. This bolsters the parents’ case here for arguing social transition is medical – especially if there’s a court ruling that adopts the ACLU’s framing.

• But truthfully, this is psychological treatment. And psychological treatment is hard to define. Discipline, for example, is a behaviorist intervention. Lawyers will have to distinguish social transition from all the other creepy little behavior-modification experiments that teachers run on kids without even thinking about it. We’re back to the question: what makes gender special?

The right “to speak and act on their [children’s] behalf”

• In a concurrence sympathetic to the parents in Lee, 10th Circuit Judge Carolyn B. McHugh quoted a Supreme Court decision called Hodgson, upholding parental notification laws as to minors seeking abortion. (The question was whether the laws violated girls’ rights.)

• This is promising. But still – schools can’t check in with parents about everything. A line needs to be drawn between gender insanity and quotidian middle school insanity. Again: what makes “gender” special?

Did the SST Policy Injure the Parents?

Parents have to show that SST deprived them of – whatever right they just defined. But as the HHS Review determined, parents can’t build a scientific argument about what SST does. They have to string together a story and schools will poke holes in it: couldn’t the child have learned about transition online? Wasn’t she distressed about something else besides gender?

Gender doctors will testify that pronoun changes have no effect on kids who are going through a phase. The psychiatrist Scott Leibowitz basically testified to this in 2020 in an expert report that leaned heavily on his own “clinical experience.”

If “cis” people carry immunity to the power of pronouns – and judges might buy that because pronouns don’t hurt them – then there’s no injury.

Does the SST Policy Help Trans Kids?

School districts claim the SST policy is necessary for kids – maybe not the ones in the lawsuit – who truly are trans. Parents shouldn’t have to address that point. But I think they do. Otherwise, credulous judges will find an excuse to rule against them. They don’t want to shoot down an SST policy that’s based on cutting-edge, life-saving gender science.

Parent advocates need to get across that SST hurts inveterate tomboys just as much as the regular girls featured in lawsuits. That way judges will feel less nervous striking down the policies.

Is “Parental Rights” Doctrine Fit for Service?

If parents establish that SST is a unique societal menace that devastates families and doesn’t benefit anyone, a shadow will fall over the courtroom as the judge realizes an amputation cult is staffing American middle schools.

Recall the parental rights precedents. The Supreme Court said parents may teach their kids German, send them to parochial school, and enroll them in soccer instead of visiting Grandma on Saturdays. Advocates want to add to that: parents may opt their kids out of the national amputation cult?

And other parents may … opt their kids in?

SST and the ideology it rode in on must be dealt with by the state. The feds need to defund schools and hospitals that trans kids. State governments should open investigations into public nuisance and fraud, and yank the teaching licenses of gender predators. School districts need to fire them. Federal, state, and local governments should criminally prosecute the trans-kid racket.

Every private lawsuit until then is a stopgap. None of the legal doctrines match the grand scope of the problem, whether it’s medical malpractice, religious freedom, sex equality, or parental rights.

The ideal school system isn’t one that shares every morsel of classroom gossip with parents and lets them pick and choose what their child learns every day. The ideal school system is one that parents trust to be normal so they (parents – but usually, mothers) can spend their time doing something better than scouring social studies textbooks for bearded women. The second vision can’t be secured by parental rights litigation; it requires the government to nuke all the groomers. So parents end up sounding like they want the pick-and-choose school system. Many judges aren’t sympathetic.

One final problem with opt-out: it’s designed to accommodate a small number of parents with outlier views. When a lot of parents exercise the right, it ends up accommodating schools with outlier views. All the most attentive parents are allowed to peacefully shield their child so they’re less likely to organize and demand the school stop warping all children.

Prognosis

I think lower courts may continue to fumble but the Supreme Court will eventually hand parents a win.

The Supremes have now heard oral argument on two very different “trans kid” cases – Skrmetti, about pediatric gender medicine, and Mahmoud, about “gender identity” storybooks for 4-year olds. It’s considering cert petitions (requests for review) in several more, with subject matter ranging from girls’ sports to censored T-shirts. The justices are acquiring a panoramic view of the gender identity circus that’s unattainable by anyone else who’s not on Substack.

When the Court denied the Eau Claire parents’ cert petition in December, Justices Alito, Kavanaugh, and Thomas dissented from the denial. Archconservative Alito – joined by Thomas – cast the parents’ position sympathetically and suggested other judges were relying on technicalities “as a way of avoiding some particularly contentious constitutional questions.” I expect that bold spirit will move leftward down the bench as more justices gain confidence in questioning the trans movement. Some already sounded more strident at Mahmoud oral argument (April 2025) than at Skrmetti (December 2024).

When you see the full societal context of SST, you realize it does actually resemble past parental rights showdowns. Just as in the 1920s and 90s, the state is seeking control of children thanks to a moral panic.

In the years following World War I, Americans became paranoid that European immigrants were overly loyal to the pope or conspiring in German. That’s why states cracked down on how they could raise their kids. In the late 20th century, elders worried that the nuclear family was breaking down as very young and/or unmarried women had more babies. So states empowered graybeard family court judges to meddle with these moms’ decisions based on their own evaluation of a child’s “best interests.”

In both eras, the Supreme Court threw a bucket of ice water on the hyperactive governments.

Today the country is understandably gripped by concern about cratering youth mental health. But school officials have no idea how to fix the problem. Preoccupied by the theory that right-coded forms of discrimination are the root of all suffering, they’ve decided that kids are mentally unwell because their bigoted parents refer to them by sex-based pronouns. (Also, some of the teachers and counselors seem like emotional vampires exploiting the frenzy.)

The 10th Circuit rejected Erin Lee’s position that “the transgender issue” is special. But it is special and it calls for a surgical court decision that doesn’t implicate any other topic. The Supremes should declare that teaching non-biological theories of sex to kids, or pretending kids are not members of their sex class, in public schools without parental consent is unconstitutional.

It will be peculiar for the Court to describe an unconstitutional practice in terms of a specified social fad. But that's OK. SST policies are peculiar.

“Some people experience same-sex attraction ... not because they were ‘born that way,’ but because they were born human into a fallen world[.]”

–Changed Movement (2025)

“I don’t believe I’m supposed to be feeling this way. Can you help me to align my feelings, and my understanding of who I am, with who Christ says that I am?”

–Ricky Chelette, Living Hope Ministries (2025)

To many liberals, conversion therapy (CT) sounds like a relic. Some are skeptical this practice still exists because it only makes the news when “LGBTQ” activists are lying about it.

And yet I’ve lately run into conservatives who believe people with “same-sex attraction” should try to be straight. Layton Ulery, who is suing the gender doctor Jason Rafferty for fraud, explains she was vulnerable when she met him because she’d just escaped gay conversion therapy in a Christian cult setting. Detrans lesbians raised Christian have discussed the pressure they felt to straighten out – or else pretend to be male.

Gay gender-critical activists worry that homophobia is one of the pathways leading youths to use cross-sex hormones and seek sex trait surgery. In fact, we view gender medicine as a form of CT because it attracts gay patients who want to believe either they’re straight members of the opposite sex, or that they have some amorphous “queer” sexuality which is superior to being gay.

Most blue states and DC ban gay CT for minors, meaning, a licensed therapist’s efforts to change a kid’s sexual orientation. They also ban “gender identity” CT for minors. This idea is incoherent, as I’ll explain, but the laws make mental health professionals skittish about probing trans-identified patients’ mindset.

Now a licensed professional counselor in Colorado named Kaley Chiles is challenging her state’s gender CT ban. Great. She’s also challenging its gay CT ban. Oh dear. She says she wants to help kids “reduce or eliminate unwanted sexual attractions.” Chiles’ dreadful lawsuit, brought under the First Amendment’s free speech clause, could tank the worthy cause of repealing gender CT bans. It will certainly give the movement against gender ideology a black eye in the media.

Chiles is represented by Alliance Defending Freedom, a Christian advocacy org that has been targeting middle and high school students with anti-gay messages for at least 20 years.

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In this post I’ll explain conversion therapy and then analyze Chiles v. Salazar. The Supreme Court will hear the case next term, likely in October. (Here are the briefs so far.) I find that conversion therapists share an ethos with gender doctors: the customer is always right. Especially if she’s a 13-year old girl anxious about fitting in.

Can You Change Your Sexual Orientation?

Studies suggest sexual orientation is innate. Gay people have different brain structures than straights of the same sex and their brains light up differently when exposed to certain pheromones associated with sex.

How could talk therapy change brain structures and pheromone processing? I’m not saying it’s impossible, but it requires a biological explanation. No one has begun to even theorize one, least of all faith-based therapists. They instead ramble off about addressing “root causes” of homosexuality, like the idea that boys go limp-wristed because they’re too close to their mothers and/or not close enough to their fathers. (I explored this in my post on Ken Zucker and Susan Bradley’s regressive 1995 book.)

The History of Homo-stasis

In the late 1930s and into the 1940s, pharma ads and sensationalized media coverage of hormone research gave some people the idea that hormonal imbalance drove their attraction to the same sex. Researchers tried curing men’s homosexuality by giving them testosterone but it only made them gayer (by supercharging their sex drives). Then, in the late 1940s, they began administering estrogen to gay men caught by the police.

In 1952, a young man named George Jorgensen underwent “sex reassignment surgery” (SRS) in Denmark after getting the idea – from a popular 1945 book called “The Male Hormone” – that he was essentially female. His return home to the US sparked a media frenzy that influenced young gay men and teen boys to dabble in estrogen. These “hair fairies” and “street queens” sometimes worked as prostitutes and actually passed as women. This way they could lead ostensibly hetero lives with boyfriends.

The psychiatrist Frank Samuel Caprio declared in his epic 1954 study of female homosexuality:

“Psychoanalysis and psychotherapy are specific methods of treating lesbians. Attempts to cure homosexuals through endocrine therapy have proven futile.”

In We Walk Alone (1955), Patricia Highsmith (using the pen name Ann Aldrich) described a 33-year old bookstore manager she knew:

“[Millie] has lived alone since her breakup with a lesbian who was her roommate for close to five years. … She has three [psychoanalysis] sessions a week at a cost of $180 a month [over $2,100 in 2025]. This would be financially impossible for her were it not for a running bank loan. She is entering her fourth year of analysis. When we discussed the lesbian’s chances for cure through psychoanalysis once, Millie said she didn’t know what her chances were, but anything was better than the misery she had experienced in an overt lesbian relationship.”

Johns Hopkins University opened America’s first SRS clinic in 1966. Clinicians knew that gay men sought their services in order to become pseudo straight women but aimed to screen them out. They expressed no such squeamishness about transing lesbians.

The dawn of SRS coincided with conversion therapy’s heyday, according to a 2009 systematic review by the American Psychological Association (“APA SR”). Shrinks tried to cure gays through all sorts of modalities, from psychoanalysis to “aversion treatments” such as electroshock and “inducing nausea, vomiting, or paralysis.” “Cognitive therapists attempted to change gay men’s and lesbians’ thought patterns by reframing desires, redirecting thoughts, or using hypnosis.”

Patients’ gender-nonconformity seemed connected to their gayness. One behaviorist believed “homosexuality developed from a phobia of taking on the normal qualities of one’s gender and that sexual intercourse with the other sex would cure the so-called phobia.”

This creative research came to a screeching halt in December 1973, when the American Psychiatric Association declared – after intensive lobbying – that homosexuality was not a mental disorder. Now medical treatment was considered inappropriate (conversion psychoanalysis retained legitimacy until the late 1980s).

Five months after gays were dismissed from the leper colony, Stanford psychiatrist Norman Fisk argued that surgeons should cut off their penises:

“I feel that many of these [SRS] patients [are] in full flight from … effeminate homosexuality … and [are] rushing to embrace the diagnosis of transsexualism for many valid reasons.”

Challenging the prevailing view that SRS doctors should turn gays away, Fisk argued gay patients suffered from “gender dysphoria” that SRS could alleviate. He referred to homosexuality as a “supposed moral perversion.”

Today the mental health profession pays lip service to the 1973 declaration that gay people shouldn’t be changed but acts on Fisk’s 1974 vision of changing gays who ask to be changed. An outsize number of trans-identified people are gay, and their shrinks send them off for hormones and surgery on the grounds they suffer from “gender dysphoria.” Or, in the words of 2015 APA guidelines, “discordance they may experience between their sex assigned at birth … [and] patterns of sexual and romantic attraction[.]”

Gender medicine wasn’t the only refuge of sexual orientation change efforts (SOCE) after 1973. It also found a home in religious settings where secular “experts” didn’t hold sway. In 1992 the few dissenting professionals formed National Association for Research and Therapy of Homosexuality (NARTH) and teamed up with the Religious Right to drum up business. Today, most conversion therapists are ministers who may or may not hold counseling licenses. Active ex-gay orgs include the evangelical Changed, Restored Hope, and Living Hope, and for Catholics, Courage.

The Outcomes

None of this led to very reliable data on whether SOCE worked. According to the 2009 APA SR, the field was beset by “serious methodological problems.” But “the results of scientifically valid research indicate that it is unlikely that individuals will be able to reduce same-sex attractions or increase other-sex sexual attractions through SOCE.” The few participants who reported success tended to have bisexual histories.

Two studies of SOCE from the 2000s found that users of ex-gay services reported myriad harms:

(a) decreased self-esteem and authenticity to others; (b) increased self-hatred and negative perceptions of homosexuality; (c) confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, and suicidality; (d) anger at and a sense of betrayal by SOCE providers; (e) an increase in substance abuse and high-risk sexual behaviors; (f) a feeling of being dehumanized and untrue to self; (g) a loss of faith; and (h) a sense of having wasted time and resources.

Interpreting SOCE failures as individual failures was also reported in this research, in that individuals blamed themselves for the failure (i.e., weakness, and lack of effort, commitment, faith, or worthiness in God’s eyes). Intrusive images and sexual dysfunction were also reported, particularly among those who had experienced aversion techniques.

A 2015 study looked at 1,600 Mormons who engaged in psychotherapy aimed at reducing same-sex attraction. Over 95% reported little to no change. 37% reported moderate to severe harm from the efforts.

The only effective gay conversion therapy is gender medicine. Puberty blockers prevent sexuality from developing in the first place – a leading gender surgeon acknowledges boys transitioned young may never experience orgasm. Estrogen disables penises. Penile inversion surgery is rumored to render the tissue numb. And some previously homosexual women report that using testosterone (steroids) makes them want to have sex with men, possibly as a byproduct of overall higher sex drive.

The Gay Christian Conundrum

Some religions condemn homosexuality. Their gay adherents have to choose between piety and romance. What’s the therapist’s role in all this?

When it comes to minors, according to the APA SR:

“[Therapists should] support children and youth in identity exploration and development without seeking predetermined outcomes. Interventions that incorporate knowledge from the psychology of religion and that increase acceptance, love, and understanding among individuals, families, and communities are recommended for populations for whom religion is important[.]”

In other words, the APA doesn’t know what to do with religious gay kids. They need to choose what part of their life to compromise and no one can do it for them.

State and federal laws ban deceptive conduct by businesses (that’s you, Doc). Deception doesn’t just mean making false statements. It includes misleading statements and omissions of material facts. Many laws also ban “unfair” conduct, which involves exploitation of power imbalance – a factor that could come into play when the client is a minor. In 2015, ex-gay survivors won a consumer fraud lawsuit against JONAH, a Jewish conversion therapy practice in New Jersey that has since gone bankrupt.

If a client tells a therapist they want to change their sexual orientation, I’d suggest therapists respond that sexual orientation appears to be innate, no reliable research supports the idea that it’s malleable, and no rational theory supports the idea that it’s malleable.1 Even if the client presents their goal in a more ambiguous way – they want to explore whether they’re gay, for example – therapists should still provide that info up front. Depending on the situation, their parents should hear it too.

If a religious counselor wants to tell people their sexual orientation is not innate, or that they can stop feeling gay, then OK. That’s free speech. But they shouldn’t imply their words are a form of therapy sanctioned by secular authorities. That’s fraud.

Is Gender Conversion Therapy Real?

Historically some therapists tried to change patients’ “gender identity,” most famously Ken Zucker. These patients were prepubertal kids. The idea was to prevent them from becoming “transsexual” adults. Advocates for blocking the puberty of “transgender children” in the 2000s made Zucker their foil, to great effect, because his method of taking boys’ dolls away was archaic and punitive.

Today many therapists recognize that gender medicine harms the body so they try to help kids critically examine their desire for it. That doesn’t mean the therapist aims to “change their gender identity.” Sasha Ayad, an LPC based in Arizona who publicly challenges the wisdom of transitioning minors, told me: “I don't agree with using manipulative tactics to help someone return to their birth sex identity.”

Trans activists argue “affirmative” therapy is the only appropriate mode. This term appears to be lifted from the gay context, where it basically means being nice to a client who expresses gay identity or attraction. (It’s all over the 2009 APA SR.) Gender-affirmation, by contrast, requires the therapist to enter the client’s fiction and reflect back to them that they are “who they say they are.”

Anything else, trans activists argue, is conversion therapy. Even acts that have nothing to do with therapy are somehow conversion therapy if they discomfit a trans person. Here’s ACLU lawyer and thought leader Chase Strangio in 2021 blasting laws that keep trans-identified boys out of girls’ sports:

“[I]f you tell a young person … they must exist in accordance with their assigned sex at birth, then you are instructing the state to engage in a process of coerced conversion therapy. And all the science we have demonstrates that not affirming trans and gender expansive kids in who they are results in catastrophic mental health consequences including devastating rates of suicidality.”

Kris Kaliebe, a psychiatrist at the University of South Florida, broke down the activists’ game in a 2022 expert report (citations omitted):

“The term ‘conversion therapy’ is often misused by the supporters of [gender-]affirmative care as an attempt to devalue and pathologize approaches other than purely affirming a patient’s gender self-identification.”

GICE bans should be null – unenforceable – because they’re not written in English but rather genderese. Colorado’s, for example, doesn’t define gender and defines “gender identity” circularly as “an individual’s innate sense of the individual’s own gender, which may or may not correspond with the individual’s sex assigned at birth.”

So any therapist attacked under a GICE law has at least one strong defense, probably more. But most therapists don’t want to be attacked in the first place. The bans become weapons for trans activists to turn against therapists who publicly challenge gender orthodoxy – who they like to target anyway.

Ayad has faced two meritless attacks on her therapist license. Christine Milrod, a trans rabble-rouser, claimed in 2017 that Ayad broke a rule by practicing across state lines (she had not broken any rule). And her former coworker, with whom she’d had a “cordial” relationship, reported her for conversion therapy in 2019. This was in Texas where there is no ban on GICE but a licensing board could still find it to be problematic. In addition to the anxiety those complaints provoked, Ayad spent $8,000 on lawyers to address the state-lines complaint (some of which was reimbursed by her insurance carrier). She was lucky to receive pro bono legal assistance on the GICE complaint.

Winn faced an investigation for GICE by her licensing board in Oregon, which does ban it. The board cleared her. (Winn and I discussed SOGICE bans in February [at 1:27].) Neither Winn nor Ayad goads kids to pursue an impossible goal. But Kaley Chiles might.

Meet the Conversion Therapist

Christian conservative law firms have challenged GISOCE bans since they first appeared on the scene in the early 2010s. Now ADF has finally landed a case before the Supreme Court, representing a Christian therapist named Kaley Chiles.

According to her website, Chiles’ practice is exceptionally goal-oriented:

“What’s unique about my approach is that I love to GET THINGS DONE so I work with clients to stay in touch with their goals, progress, or lack thereof and collaboratively problem solve to get results. I often see people who report having tried multiple solutions before starting with me, feeling a bit discouraged, exhausted and confused.”

ADF’s press release claims Chiles objects to the CT law2 because she treats Christians who don’t want to be trans. There’s no mention of sexual orientation:

“[Chiles] helps clients with various issues, including gender identity. Many of Chiles’ clients come to her because they share her Christian worldview and faith-based values. These clients believe their lives will be more fulfilling if they are aligned with the teachings of their faith.”

Chiles’ petition seeking Supreme Court review (“cert petition”) reveals another side to her practice: efforts to change kids’ sexual orientation.

The Self-Determined Child

ADF refers to Chiles’ clients in generic terms. One might picture adults. But the CT law only pertains to minors. Important detail. As I quote ADF’s brief, I’ll replace “client” with “8th grade girl.” That’s a fair age to choose because I was around 13 when I began to realize I was attracted to girls; Chiles used to treat kids that young but stopped when the CT law was enacted.

ADF’s brief (citations omitted):

“[Chiles is] a practicing Christian who views her career as an outgrowth of her faith. Many of Chiles’s [13-year old] clients are also Christian and specifically seek her help because of their shared faith-based convictions and biblical worldview. These [8th graders] are sometimes referred by local churches.”

The brief continues:

“Some of the issues that [8th grade girls] want to discuss implicate Christian values about human sexuality ... At times, those [children] are living inconsistent with their faith or values, resulting in internal conflict, depression, and anxiety. They seek Christian-based counseling to reduce or eliminate unwanted sexual attractions …

“Like Chiles, these [8th grade girls] believe their faith and their relationships with God inform romantic attractions ... These [kids] … want to achieve freedom from what they see as harmful … sexual behaviors [like staying up until midnight planning their first kiss]. Chiles works only with voluntary [13-year old] clients who determine the goals that they have for themselves.”

This approach brings to mind gender affirmative therapy, in which kids tell the therapist what gender they are and the therapist unquestioningly helps them come out to their families and access transition drugs. Chiles’ clients are telling her the sexual orientation they want to be and she’s helping them work toward that goal. It’s the consumer model of mental healthcare.

ADF captures the issue perfectly in its press release:

“Colorado law censors Chiles from speaking words her clients want to hear[.]”

Apparently Chiles doesn’t aim to spark attraction to the opposite sex. The best these kids can falsely hope for is asexuality.

As I discussed above, data and logic suggest therapy can't “reduce or eliminate unwanted sexual attractions.” Chiles gets around this bad fact libertarian-style. She’s just giving the kids what they ask for:

“After a [13-year old girl] communicates … her goals, desires and objectives, Chiles provides counseling that aligns with the [child’s] self-determined choices. Together, Chiles and her [middle school] clients freely and fully explore issues about … sexual attractions, root causes of desires, behavior and values.”

The SOCE industry has deployed this freedom-of-choice branding since 2014.

ADF assures the Court that “Chiles never promises that she can solve these issues[.]”

But consumer protection law doesn’t let business owners get away with deceptive conduct by simply “never promis[ing]” results. Especially when the clients are kids. Plus, Chiles does actually promise “to get results” on her website. Colorado does not pursue a deceptive-practices argument here. But in 2015 ex-gay survivors won a consumer fraud lawsuit against a Jewish CT practice in New Jersey.

ADF argues the CT law restricts therapists from speaking a certain message, meaning the Court should subject it to “strict scrutiny” – the burden is on Colorado to prove it’s narrowly tailored to serve a compelling state interest. (In the lower courts Chiles also brought a claim based on free exercise of religion, which she lost and is no longer pursuing.)

Colorado argues that language used in therapy is “professional conduct” unprotected by the First Amendment’s free speech clause. If that’s right, then the Court must apply an easy test to it. The law stands unless the challengers can show it lacks any rational basis.

Neither of these approaches seems right. Therapy is not a political speech and it’s not not-speech. I’d argue therapy should be regulated as commercial speech. That would entail “intermediate scrutiny,” which sits between the two other tests, and it would allow states to protect therapy clients from fraud, abuse, and malpractice. No one makes this argument in Chiles.

Both the district court and 10th Circuit Court of Appeals sided with Colorado, applying the easy test to the CT law and finding it passed.

But wait – the CT law isn’t so simple. It has two components, barring SOCE and GICE. I’ve been ellipsing out ADF’s points about the latter, but both are in fact up for grabs in this case. So how has that duality played out in the courts?

Everyone Agrees Sexual Orientation and Gender Identity Are the Same

Neither ADF, nor Colorado, nor the district court judge, nor the majority of the 10th Circuit panel applied their preferred free speech test to sexual orientation and gender identity separately.

The 10th Circuit dissenter, Judge Harris Hartz, explored them one at a time. But his skepticism of gender-affirming therapy led him to doubt the ban on gay CT: “In that light, it is important to examine whether the evidence relating to [SOCE] is more settled …” All roads lead to SOGI.

ADF treats SO and GI as parallel. Both flow throughout its cert petition, no separate headings, and “LGBT” appears without quotation marks. In the district court, ADF argued that both “sexual orientated [sic] and gender identity are fluid over time.”

What Are These Fluids?

As to sexual orientation’s fluidity ADF cites Lisa Diamond, a loony queer who skirts questions of biology and opposes gay CT (“SOCE are not only ineffective in changing sexual orientation but are psychologically damaging”). Its other two authorities on SOCE are Diamond’s co-author, a law professor; and Nicholas Cummings, a psychologist born in 1924.

Colorado retained an expert witness, Judith M. Glassgold. She’s the lead author of the 2009 APA SR. Her summary of that document and more recent SOCE studies seems fair except for goofy definitions.3 But when she slides into the subject of GICE outcomes (without separate headers or other notations of the difference) she loses coherence.

The GICE studies don’t aim to discover whether GICE works at changing “gender identity.” Rather, they’re surveys in which trans-identified subjects report that GICE hurt them. For example:

“A 2021 study of approximately 1400 14- to 83-year-old transgender individuals from New Zealand exposed to gender identity change efforts found that those who stated that they had experienced GICE exposure were more likely to report psychological distress, nonsuicidal self-injury, suicidal ideation, and suicide attempt than those who did not report such experiences.”

Recall – activists define GICE broadly. Could it be that unstable people are more likely to interpret normal therapy as evil GICE? Per Strangio, do they think being “exposed” to single-sex sports is conversion therapy?

Glassgold’s lack of rigor here is disappointing. The APA SR acknowledges the nuance of the subject matter and limitations of studies. It’s scrupulous in parsing the definition of sexual orientation, distinguishing it from “sexual orientation identity” (i.e., a closeted homo has a straight SO identity). But Glassgold’s expert report in Chiles doesn’t define gender and doesn’t use the term “sexual orientation identity.” She portrays sexual orientation as a social construct:

“Sexual orientation focuses on biological characteristics of sex as well as aspects of gender identity and expression and can occur in a variety of forms, but is usually discussed in terms of categories such as heterosexual, lesbian, gay, and bisexual (including e.g., bisexual, pansexual, queer, fluid).”

Gender identity:

“The modern scientific conceptualization of gender is as a nonbinary construct that allows for a range of gender identities. Gender identity is an established concept in psychology, referring to an internal, deeply rooted sense of oneself as being a girl, woman, or female; a boy, a man, or male; a blend of male or female, or for as some another gender [sic] … Most people have a gender identity that is congruent with their assigned sex at birth …”

Put down your drink and swallow before continuing:

“Harm has not been identified for [social transition and medicalization] when consistent with a carefully designed treatment plan that is consistent with existing professional guidelines, and conducted by appropriately-trained interdisciplinary health professionals.”

In fact, affirming a child’s “gender” locks in a trans identity and makes them terrified of puberty. Puberty blockers, cross-sex hormones and sex trait surgery injure the body.

Split the SOGI

Gender-critical activists tend to oppose GICE bans and support SOCE bans (or at least the spirit behind them). ADF’s choice to take Chiles to the Supreme Court — opposing GICE and SOCE bans — should vex them.

First, Chiles’ endorsement of SOCE could alienate the justices so they set a low bar for defending both the SOCE and GICE bans by agreeing with Colorado that they’re “professional conduct,” not political speech. This seems unlikely given recent First Amendment precedent. But it’s possible because of how reviled SOCE is even among conservatives.

Second, even if the high bar of “strict scrutiny” is applied, the GICE ban could pass it on the strength of the evidence for the SOCE ban. That’s how both the district court and the 10th Circuit saw the case already (though they applied the easier rational-basis test).

Third, the choice to attack therapy restrictions under the First Amendment could complicate efforts to regulate therapy at all — including when it promotes trans identity.

Fourth, ADF is exploiting the GICE ban’s weaknesses to take down its old adversary, gay rights. The tactic of force-teaming gay and trans issues is copied from trans activists and it serves their interests. As a matter of propaganda, they want everyone to associate gay and trans.

Fifth, ADF is taking a non-ideological principle – therapists shouldn’t be terrorized with frivolous GICE ban complaints – and pairing it with a religious agenda, trying to change gay kids’ sexual orientation. That also plays into the hands of trans propagandists.

The media will no doubt amplify those fourth and fifth points. This will confuse the public about gender-critical ideas and stigmatize them.

The Supreme Court should block out the political noise and remand Chiles to the district court to separately analyze the bans on SOCE and GICE. No matter what free speech test that lower court applies, GICE bans should fail because they’re incoherent.

Many former leaders of the ex-gay movement have renounced their past work. Darlene Bogle left her leadership role in Exodus in 1990 because she fell in love with another woman she met there. 24 years later she reflected to Newsweek:

"In just trying to help, I did immeasurable harm. It's like when children are molested, and they live with that for their entire lives. They're still being harmed, even though it happened years ago. I think it's a lot like what happens when people are involved in ex-gay ministry."

Bogle devoted herself to spreading the message of gay acceptance:

"I'm trying to go back, to try to bring healing to those who believed my lie. It'll take the rest of my life.”

Gay people are a tiny minority who often feel conspicuous, under siege, and lonely. Many of them, especially when they’re young, would rather be straight. Doctors should tell them they can’t change sex. And therapists should tell them they can’t change their sexual orientation.

Since I targeted the piece to a general audience, this would be a good one to share with your friends who are not gender aficionados.

Where I use they/them pronouns it’s because I don’t know the person’s sex.

In February, parents in Washington State filed 38 unnerving reports with Nick Brown, their attorney general. Terrified by a recent executive order from President Donald Trump that cracked down on youth gender medicine, they describe how “affirming” their children improved their mental health. Affirming means treating them as the sex they identify with (including nonbinary), buying them new clothes, and helping them access puberty blockers, hormones, and surgeries. Two of the families are especially distraught because they have three transgender children.

The parents argue that gender medicine is safe and prevents self-harm. Many of their testaments are powerful and sympathetic. But rather than expose Trump’s order as dangerous, they read as evidence that gender doctors are committing fraud.

I’m a consumer protection lawyer. Youth gender medicine caught my attention several years ago, when I noticed its practitioners didn’t explain their ideas logically. If maleness is just a construct detached from biology, then what makes a beard masculine? Is there really an “innate” difference between a short-haired lesbian like me and a homosexual female identifying as a man? This matters because testosterone causes incontinence in females, among other medical issues. But I couldn’t find gender doctors engaging tough questions. Instead they told heartwarming stories and accused anyone who doubted them of bigotry. Murky reasoning, reliance on anecdote, and wrath toward skeptics are hallmarks of a scam.

I’m not the only lawyer who is concerned. In September, 21 states launched an investigation into the American Academy of Pediatrics for claiming puberty blockers are “reversible” when in fact they “may interfere with neurocognitive development” and bone health, among other dangers. The states cited a report by England’s National Health Service, known as the Cass Review, which also found no support for the idea that blockers prevent suicide. One of America’s leading gender doctors recently admitted that puberty blockers did not lead to mental health improvements in her own research.

Last year the Alabama Attorney General’s office unearthed internal emails from WPATH (World Professional Association of Transgender Health) that showed youth gender medicine guidelines were not developed based on a review of evidence but rather with the aim of securing insurance coverage and winning civil rights lawsuits.

So the desperate parental reports would have raised alarms in many state attorney general offices. But not in Washington. AG Brown cited them in a lawsuit against Trump and other officials to support the argument that “transgender children will die” without gender medicine. Brown defended the drugs by citing WPATH. He’s joined by his counterparts in Colorado, Minnesota, and Oregon.

The Washington parents – most of whom withhold their full names, citing fear of reprisal from the federal government – appear mis-informed.

JM, a parent of a 13-year old on blockers, claims:

“Though some sources highlight contraindications and dangers associated with puberty blockers, generally this is misinformation. I’ve learned from my own research and from our medical providers that puberty blockers … are perfectly safe for an adolescent such as [my child].”

SS writes of their child, a male placed on puberty blockers at age 11:

“all the medical care that L.S. currently receives is reversible … She also started low-dose estrogen at the age of 13 years, after fertility counseling and preservation.”

Estrogen causes breast growth that is not reversible. And as the parent seems to acknowledge, the blockers-then-estrogen regimen can cause infertility (as well as permanent sexual dysfunction). The techniques used to salvage sperm cells from males that young with blocked puberty are unproven – nevermind the efficacy of “fertility counseling” at that age.

Another parent, MF, believes:

“Blockers and hormone treatment, started during the teenage years, give a transgender person the opportunity, with the exception of their genitals, to look like the gender they feel for the rest of their lives.”

But a person’s sexed appearance is not only dictated by hormones. Genes make males larger than females, with different bone structure such as narrower hips. Plus: genitals are nothing to sneeze at.

It seems something is going on here beyond standard medical treatment. One mom refers to her 11-year old as her “spiritual leader.” Another notes that a gender doctor meeting with her 8-year old “wanted to make sure to let our daughter steer the ship in decision-making.”

Preoccupation with gender is common. One parent, AMM, says when their child started identifying as a girl in preschool, “we talked about gender constantly.”

Many of the children identify as nonbinary. AM, the parent of one such 6-year old, says the child “will become dysregulated and shut down when they encounter an adult who does not see them accurately or misgenders them.” Apparently they will need gender medicine in order to make their nonbinary identity obvious to strangers.

SO, the parent of a nonbinary 11-year old, states:

“My biggest concern is that my child will be forced into manhood and denied the chance to move gently into androgyny[.]”

Seeing their friends “develop and go through puberty” made one nonbinary child feel “scared,” according to their mother, KCC. So the family followed medical advice to use blockers. “They needed to press pause while they figured everything out.” The child is now 14 and still blocked.

The parents of another blocked nonbinary 14-year old worries that if gender medicine becomes unavailable, “they will lose their joy.” But doesn’t this teenager have to go through puberty sometime?

A Seattle pediatrician, GM, explains the logic behind blockers: to give kids “the time and space to decide which outward gender characteristics are most aligned with their gender identity – i.e., which characteristics they would like to avoid, and which to affirm permanently.”

Parents hearing this from a doctor might assume there’s a science to gender medicine. But there isn’t, as the WPATH imbroglio confirmed. Leading gender clinicians recently argued their work should not be judged based on its “effectiveness” (scare quotes theirs).

GM states that “completed suicides are … a considerable risk” of having gender dysphoria. This doctor doesn’t mention that gender medicine isn’t proven to alleviate it. And the doctor states, misleadingly, “[p]uberty blockers are considered reversable [sic].”

Suing the president is exciting for state AGs. But their bread and butter is consumer protection. If AG Brown gets back to basics, he might realize he has a big case on his hands – and it’s not against Trump.

Related

• My X thread on the parental affidavits (different set than in this post)

• My X thread on Washington’s motion for a preliminary injunction

I think investigations are how we’ll defeat the forces of gender. When I say that, friends often confidently respond, “I think it will be the malpractice judgments against healthcare providers.”

Yes, General Washington, but how are we going to win those judgments? Our side loses a lot of cases and arguments on other gender topics. The judges seem to have learned about trans identity from the media; the strong briefs in front of them can’t overcome that priming effect. (Juries haven’t been a factor so far but could be in malpractice trials.)

It’s not enough to subpoena interesting emails in one lawsuit or another. It’s not enough that the other side has bad facts. We need to penetrate the public consciousness with the results of a flotilla of investigations into the gender industry. I use the term “investigations” loosely – they can include media exposes and parents FOIA’ing their kids’ school district. But ideally the US government will use its massive resources and authority to lead.

President Donald Trump signed a slew of executive orders on gender. This post takes stock of how his administration has handled the subject since then. First I’ll explain the mechanics: what does it mean to implement an executive order, and who’s doing it? Then I’ll recap the government’s activity, going agency by agency.

I’m judging each government act not by what it changes or bans but by what it exposes. Regulations can be struck down, rescinded, circumvented. But facts are just facts. Once they’re out, they’re out.

And they’re on our side.

How An Executive Order Becomes a TRO

Starting on inauguration day, Jan. 20, Trump signed a string of executive orders related to gender. Now agencies have to implement them.

Many of their provisions have already been challenged in court, so someone also has to defend them.

The Masterminds

The five gender EOs aim to define sex, boot men out of women’s prisons and sports, crack down on secret school transition, defund hospitals that transition youths under 19, de-gender the military, and more. (Check out this tracker from Women’s Liberation Front.)

The EOs were reportedly drafted by different people in Trump’s political orbit. May Mailman, who serves in the White House, was behind the kickoff order that defined “sex” and condemned gender ideology. Candice Jackson, Deputy General Counsel at the Education Department, drafted “Keeping Men Out of Women’s Sports.”

The EOs are based. They’re feisty and full of ideas for vanquishing gender enemies. But they’re just pieces of paper until agencies put them into action.

The Implementers

Agencies are led by political appointees – people nominated by the president and their entourages – and staffed by career officials, meaning workers hired on merit who stay on from one administration to the next. Career officials include lawyers with esoteric knowledge about their agencies’ powers and limitations. You may know them as the deep state.

The White House is taking a strong hand with agencies. The week 2 funding freeze is one example; another is the Feb. 7 edict that slashed research grants.

Political appointees don’t seem to have consulted career attorneys about these moves. They were both enjoined. But the administration is now persuading the judges who enjoined the funding freeze to let it freeze certain streams one by one, depending on legal intricacies specific to each. Perhaps this reflects the expertise of career attorneys.

The New York Times refers to this as “systematically exploiting loopholes” to get around injunctions. Sounds dastardly. But the administration is just digging up laws and rules that support its position, i.e., engaging in legal research. Quite innocent and wholesome.

Pieces of the gender EOs are caught up in the funding-freeze litigation. Others are not but have followed a similar path. For example, the Bureau of Prisons started removing men from women’s prisons within a day of the EO on point. The trans-identified men sued (twice). Judges have now temporarily blocked the EOs’ prison sections.

The Defenders

When people sue the federal government, the Department of Justice’s Federal Programs Branch defends it. These lawyers are generalists, handling everything from slip-and-falls to Obamacare and vaccine mandate challenges.

Now they’re defending Trump’s gender EOs. You can assume they know everything about the Administrative Procedure Act and Article II of the Constitution – very important – but less about the cotton ceiling. (Though I have met a lot of closet TERFs who work in government…)

While the EOs contain rhetoric that is intellectually clarifying, they don’t come with the mountain of facts – studies, debunkings, history, biology, surreptitious videos of Johanna Olson-Kennedy – that lawyers need to persuade judges everything they think they know about trans is wrong. And these lawsuits are typically filed with a motion for temporary restraining order (TRO), meaning tight deadlines. DOJ lawyers have a hard job.

Elon Musk, senior advisor to the president, has gone to town insulting career officials, threatening their jobs, imposing rigid rules on them (no more remote work), and actually firing them. But at the same time, Trump is leaning very hard on some of them to defend his agenda in court. His political appointees aren’t out in the trenches. He needs the deep state.

In fact, DOJ has posted new jobs in the Federal Programs Branch, apparently having secured an exemption from the government-wide hiring freeze. It will receive high-quality applications. But not as many as it would if Musk were gone.

Health & Human Services Explains Sex

HHS was homebase for the forces of gender woo under President Joe Biden. Now it’s in the hands of Secretary Robert F. Kennedy, Jr., who opposes transitioning of minors.

Gamete’s Delight

The Jan. 20 “Defending Women” EO defined sex along gamete lines and directed HHS to issue a more detailed explanation. Last week HHS came through. (It also stood up an entire website celebrating and supporting female athletes. Dems, you so richly deserve this.)

Sex-based biologists raved about the guidance on X. Carole Hooven gave a thumbs-up in the Boston Globe. Her review patiently engaged with the document’s critics:

“variation in characteristics that are associated with sex does not constitute evidence for additional sexes. Nor does it mean that sex itself is somehow on a spectrum.

“What it instead shows is that sex-associated traits do exist on a spectrum.”

Biologists argue the spectrum theory of sex is wrong. I don’t disagree, but I view the discourse differently. To me, the activists have put forward a different definition of sex. Why not? Language can change. The problem is:

1. The activists use new-sex to pretend the concept referred to by old-sex – reproduction – doesn’t matter.

2. The spectrum is useless for explaining why anyone would need gender medicine. If maleness can’t be pinned down, what is a woman aiming for when she tries to look masculine? Activists know this is a problem. It’s why their lawsuits talk about people’s “sex assigned at birth.” That term gives them the binary they need to build their argument.

HHS’ guidance on sex exposed facts to the world. Not only did HHS stick it up on the web in readable prose, but the guidance led to a constructive (if often stupid) debate in the media culminating in Hooven’s masterful essay, which we’ll all be sharing in stupid debates for years to come. The new guidance is also playing a role in litigation, which I’ll get to in a minute.

Define “Paperwork”

The EOs tasked HHS with demolishing its own gender disinformation machine. It obeyed by taking down LGBTQ webpages. But like a woman competing in a mixed-sex track event, its effort has run into a hurtle: The Paperwork Reduction Act. This statute saves trees … and HTML.

The nonprofit Doctors for America, represented by Public Citizen, argue:

“The removal of the webpages and datasets creates a dangerous gap in the scientific data available to monitor and respond to disease outbreaks, deprives physicians of resources that guide clinical practice, and takes away key resources for communicating and engaging with patients.”

It’s possible some of the pages did contain useful information. Biden’s HHS slapped terms like “LGBTQIA” all over the place, and Trump’s HHS seems to have removed every sullied page. (By contrast, the State Department simply removed the “T” from LGBT pages. They now read “LGB.” It had far fewer pages to sort through than HHS did.)

The federal District of DC ordered the administration to put the websites back up while the lawsuit proceeds. HHS complied, adding warnings to pages that they don’t “reflect biological reality.”

Defunding

Two courts have temporarily blocked HHS from starving hospitals that trans kids. Still, providers around the country are skittish about engaging in youth gender med, leading to disruptions in “care.”

I’m hoping the administration is able to show at least some funding restrictions are within its power (e.g., it can add strings to new grants going forward, even if it can’t immediately yank funding for open grants). Would this reveal facts? Yes. If America lost a big chunk of its youth gender clinics it would prove that kids don’t need them. Unfortunately, private clinics that don’t receive research funding from HHS are taking some of that business.

The Inspector General

In December, a congressional committee asked the HHS Inspector General to investigate the agency’s promotion of gender medicine. Trump has now fired that person and many other IGs. They challenged the action.

There’s concern about recasting IGs as a political role. But for the purpose of investigating Admiral Rachel Levine and other historical HHS miscreants, we’re probably better off with a MAGA warrior than a generic DC “nonpartisan” type.

The Department of Taking Maine to School

The Department of Education (Ed) enforces Title IX, which bans sex discrimination by all schools that receive federal funding. If schools violate Title IX, Ed can yank their funding. K-12 public institutions receive about 10% of their funding from the feds; colleges and universities can take in more via student loans, Pell grants, and the like.

Biden issued regulations that redefined sex in Title IX to “include” gender identity. In January a federal court in Kentucky vacated this rule nationwide because redefining “sex” is outside the president’s authority. (The rule never explicitly applied to sports.) In February a federal court in Texas piled on. Several other courts issued preliminary injunctions against the Rule; litigation is ongoing. With no one around to defend gender’s inclusion or appeal its losses, Biden’s regs are dead. Sex means sex.1

Still, two boys in New Hampshire represented by GLAD and NCLR are challenging the EO that directs Ed to keep boys out of girls’ sports. (My X thread.) They already had a lawsuit underway against NH’s law protecting girls’ sports; recently they amended their complaint to add Trump. The case is called Tirrell. Their argument: sex includes gender identity.

The federal judge in NH already enjoined the state law because the boys were likely to win on the argument it discriminated against trans people. We’ll see if she also blocks the EO, applying the same reasoning to Title IX – that it’s unconstitutional if interpreted to protect girls. The argument, while crazy, is not directly in conflict with the decisions vacating Biden’s gender identity rule. And the trans-indulgent First Circuit might affirm that ruling.

Eventually Trump will win girls' sports before the Supreme Court. He’s already won the issue in the court of public opinion – only 18% of Americans want trans-identified boys to compete against girls.

Tirrell is the first Title IX lawsuit of the biology era but other leagues and public officials have vowed to continue fielding boys in girls’ sports – most famously the governor of Maine, Janet Mills (she’s spinning it as a stand against federal overreach, not against girls). Ed is now investigating these civil rights citadels.

You may think you’ve heard it all about boys in girls’ sports. But I bet these investigations will turn up behind-the-scenes remarks and machinations so repulsive they shock even the band geeks still cheering for co-ed basketball today. This issue could be polling 95/5 by the 2026 midterms.

One snag. Trump wants to abolish Ed. Apparently he plans to ask Congress to spin off its important parts to other agencies. The Office of Civil Rights would go to the Department of Justice – and arguably wield more power from that perch (once it recovers from the journey).

Will Congress actually go for this? Only if Trump is riding high. Right now his approval ratings are low, perhaps because most Americans know someone he recently fired.

EEOC Drops Gender Lawsuits

The Equal Employment Opportunity Commission filed four lawsuits under Biden that could have set precedents on “gender identity discrimination.” Trump is seeking to drop them all. Of course that has to happen, but I was actually feeling bullish on these cases and curious to see them through.

State Department Corrects the Record

The Defending Women EO directs the State Department to clean up America’s passports. The sex marker on that document now must reflect our actual sex, not gender identity. The nonbinary “X” option is out.

Trans-identifying Americans sued. The ACLU represents them. The case is called Orr v. Trump. (Here’s my X thread on the complaint.)

For years the ACLU – which seemed to architect the trans legal movement beginning in 2005 – drafted austere lawsuits that, over time, explained less and less what they thought sex was. Nonetheless they coaxed the reader toward the conclusion that sex must be replaced with gender identity. They also hid the existence of nonbinary gender; eschewed talk of passing; and claimed gender identity had nothing to do with gender stereotypes but didn’t explain what else it could possibly be. I analogized this slick choreography to a magic trick.

Since inauguration 2025, all that carefully constructed artifice is out the window. The ACLU and other trans advocates are now presenting their movement more candidly.

Orr exemplifies the shift. Instead of pretending all trans people identify as men or women, the lawsuit showcases a man who identifies as a “nonbinary femme person.” Another plaintiff is a “nonbinary” woman who views the word female as “an identity projected on them solely based on their sex assigned at birth.”

And the lawyers have coughed up a key definition:

“The concept of ‘sex’ refers to multiple physiologic attributes, such as chromosomes, gonads (glands that produce hormones and gametes), and anatomy (internal and external reproductive parts), secondary sex characteristics that usually develop puberty, and gender identity.”

This hodgepodge view of sex (a jumble of spectrums) is almost exactly how Harry Benjamin, the endocrinologist who popularized transsexuality, defined sex in 1966, though he used the term “psychological sex” instead of gender identity. The ACLU even squishes gametes into one subpart of an attribute of sex just like Benjamin did.

Given that today’s trans activists seem to have discovered their view of sex on a decaying parchment scroll in the Johns Hopkins humanities library, it’s amusing when the media implies it’s cutting edge. (Guardian: “Most scientists now reject the idea that sex is strictly binary. … a lot of academics have moved away from a sex-classification system based primarily on gametes …”) If experts have changed the way they view sex, it’s not due to scientific advancements but rather social trends.

One more point about sex:

“For purposes of identity documents, including passports, a person’s gender identity is the most important and accurate characteristic for determining what their sex is[.]”

If sex is different depending on what area of law we’re talking about (!) then how can the ACLU insist on gender-absolutist positions in sports and prisons? The “most important and accurate characteristic” in those contexts is quite obviously not gender identity.

I think there are three reasons for the ACLU’s 2025 intellectual makeover:

1. WPATH was the spine of the ACLU’s case for almost 20 years. When its credibility took a hit last summer – and took down some expert witnesses with it – the ACLU was left with a gutted playbook. It needed to build a new narrative.

2. Last summer the ACLU promoted Chase Strangio (he/they) to be Co-director of its LGBTQ practice. In December she became the first trans-identified lawyer to argue before the US Supreme Court. This makes her the queen bee of American trans activism. Her agenda: abolish the binary.

3. Trump defined sex. The ACLU’s adversaries had rarely pressed that point before. (Texas did in a gender med lawsuit that’s still ongoing, as did feminist amici in various cases.) That January 20 EO grabbed the rabbit out of the magician’s hat.

The government’s definition of sex forced the ACLU to reveal its own idea of sex. And it’s nuts! Both antediluvian and postmodern. A bad fact for the trans movement.

Will the Justice Department Reveal Gender Is in Your Head?

Gender identity is not based in biology. The ACLU won’t admit that. Instead it dances around the subject. Other trans activists have followed suit.

This point matters under anti-discrimination law. One element of achieving “suspect class” status for trans people is showing that they share an immutable characteristic. Without ceding that gender identity isn’t immutable, the ACLU argues the law only requires they share a “distinguishing characteristic.” Either way, it would really help to show that transgender status is rooted in biology as opposed to a belief system, cultural affinity, fetish, or mental illness.

Judges haven’t thoroughly probed this question. Until now.

One of the gender EOs relates to military service. It banishes pronoun trainings, requires sex-based bunk assignments, and rolls back Biden-era rules that let troops take months of leave for the sake of undergoing gender surgeries. This may sound relatively mild. But the EO also contains certain rhetoric:

“Beyond the hormonal and surgical medical interventions involved, adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life. A man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.”

Rhetoric matters because courts can consider the government’s “animus” toward a group in deciding whether a policy unconstitutionally discriminates against them. Plus, even many gender-critical people find it offensive. So this is a hard EO to defend in court.

It was challenged in the federal District of DC by trans-identified servicemembers represented by GLAD and NCLR. The case was assigned to Ana Reyes – a judge known for intemperate conduct. Just a few weeks ago she made news for chewing out lawyers for the fired Inspectors General.

The DOJ Federal Programs lawyer tasked with defending the military EO before Judge Reyes was Jason Lynch, a 2012 graduate of UVA Law.

Lynch went terf-viral on X because a partial transcript showed he didn’t correct Reyes when she ranted against the sex binary and berated him about chromosomes (the EO refers to gametes, not chromosomes). The full transcript isn’t out, but everything I’ve found suggests he generally did a good job.

Reyes grilled Lynch for hours over the course of two days, making it an abnormally long and arduous appearance. Some of his answers that might seem diffident out of context were actually strategic or neutral. For example, in stating he didn’t know the president’s intentions, he was making a point – I suspect he’d made it more fully earlier – that the court didn’t have enough evidence to judge Trump’s level of “animus.” At other times, I think he was just letting the judge gnaw on her bone because the subject wasn’t relevant to the hearing’s outcome. Indeed, Lynch won. He wanted Reyes to defer a decision until March, after the Defense Department issues trans guidance and the lawyers can argue about that. Reyes agreed.

Through her dudgeon, Reyes hit on a key issue: immutability. She told the parties she wanted more info.

Plaintiffs filed their brief on Friday, Feb. 21. It argues that “being transgender has a biological basis.” (Here’s my X thread.) In doing so, it relies on the four cons of gender:

1. Consensus of medical associations

2. Confuse by citing a multitude of flawed studies

3. Conflate with sexual orientation

4. Conversion therapy bogeyman

It’s great that a judge is digging into immutability. It’s not so great that the judge is Reyes (about whom the DOJ just filed a judicial misconduct complaint with the DC Circuit because of how she treated Lynch).2

If DOJ doesn’t catch the plaintiffs’ many sleights of hands and sketchy cites, the “biological basis” of gender identity could lodge itself in a ruling, get affirmed on appeal, and become precedent that’s hard for gender-critical lawyers in all sorts of cases to wriggle out of later.

Will DOJ expose one of the biggest lies about gender identity?

Its brief is due Friday.

Soon ambitious young doctors spread the franchise of pediatric gender medicine (PGM) to hospitals in other cities, and from there encouraged small town doctors to get in the game as well. Daniel Shumer, for example, studied under Spack and then seeded a PGM clinic at University of Michigan. He led a training in which he and a partner encouraged therapists to recruit general practitioners and pediatricians throughout the state to prescribe hormones to kids.

Christopher Lewis learned about PGM as a medical resident during an “advocacy rotation.” He opened a PGM clinic at Washington University in St. Louis a few years later. Advocacy was in its DNA. The clinic provided legal assistance and community “outreach,” and Lewis cited “educating” others about PGM to be “the thing that I get the most reward from being part of the medical community.” When speaking to Missourians about the “biological aspects of gender,” he states that sex is not “entirely one thing or the other.”

The wealthy institutions that host these men are more than just healthcare providers. They’re research centers with PR teams and outreach programs, and a big economic footprint in their communities. Some have now been evangelizing for PGM for almost two decades.

On January 28, President Donald Trump signed an executive order to fight the “mutilation” of youths under 19. It charged the Department of Health and Human Services (HHS) with “defunding” PGM, in large part by cutting grants to all hospitals and universities engaged in the practice. Not just grants related to PGM, but all grants. Federal funding is a major source of revenue for these entities. HHS’s sub-agency National Institute of Health (NIH) pushes out $35 billion annually.

Is the Mutilation EO legal?

In the three weeks since Trump took office, he’s lost court battles over an earth-shaking “funding freeze” that his administration ordered. It appears his EOs are not vetted by the Justice Department’s Office of Legal Counsel, as regulation requires. All of this leaves gender-critical observers worrying that the Mutilation EO might be an overreach that courts will eventually vacate.

In this post I’ll look at the arguments that have been flying lately about federal funding, including those made in two lawsuits challenging the Mutilation EO. It turns out that the “funding freeze” doctrines are different from those that arise in the Mutilation EO context (assuming the latter relates only to new grants and not open grants that have already been promised to recipients). But the commotion of today’s funding battles could blow back on the Mutilation EO.

I’ll go through this in timeline style, as so many arguments build on something that happened the day before. But first…

What Is an Executive Order?

EOs are instructions from the president to the agencies that are part of his administration. They’re not laws. In other words, no one can be sued or prosecuted for violating an EO. The president might fire an agency head for shirking it. That’s the extent of its enforceability.

When members of the public sue to challenge an EO, they’re asking the court to declare it unconstitutional/unlawful and block agencies from following it.

Jan. 20: “Defending Women Against Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”

Hours after inauguration, Trump signs an executive order (EO) defining sex and declaring his administration will:

“defend women’s rights and protect freedom of conscience by using clear and accurate language and policies that recognize women are biologically female, and men are biologically male.”

Section 3(g) of this Two-Sexes EO:

“Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.”

The first sentence sounds notional and the second – the one that’s drafted more cautiously – like the plan of action. When you’re meting out grants, don’t choose the guy in a van with the word HOTT painted on the side.

But why not read the first sentence literally? Cut off funds to anyone promoting gender ideology.

Jan. 27: OMB Cuts Funding to Everyone

As week 2 of the second Trump administration kicks off, the Office of Management and Budget carries out the Two-Sexes EO, and many others, by directing agencies to freeze all funds except social security and Medicare:

“to the extent permissible under applicable law, Federal agencies must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the executive orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal.”

The purpose is to protect “taxpayer dollars”:

“The use of Federal resources to advance Marxist equity, transgenderism, and green new deal social engineering policies is a waste of taxpayer dollars that does not improve the day-to-day lives of those we serve.”

Societal disruption ensues as agencies withhold funds from hospitals, nonprofits, and schools.

Jan. 28: National Council of Nonprofits v. OMB

Nonprofits scramble to protect their federal funding by suing OMB in the federal District of DC. On January 28, Judge Loren L. Alikhan issues an emergency “administrative stay” on the OMB Directive as to open awards only, meaning the administration can still do what it wants as to granting new awards or taking other action related to funding.

Jan. 28: “Protecting Children from Chemical and Surgical Mutilation”

Trump signs an EO declaring:

“it is the policy of the United States that it will not fund, sponsor, promote, assist, or support the so-called ‘transition’ of a child from one sex to another[.]”

In contrast to the parsimonious OMB Directive, the Mutilation EO does not fret about fiscal waste. It just conveys, in barbed language, that transing kids is immoral.

Section 4 calls for “defunding chemical and surgical mutilation”:

“[Each agency] that provides research or education grants to medical institutions, including medical schools and hospitals, shall, consistent with applicable law and in coordination with [OMB], immediately take appropriate steps to ensure that institutions receiving Federal research or education grants end the chemical and surgical mutilation of children.”

It continues:

(a) The Secretary of HHS shall, consistent with applicable law, take all appropriate actions to end the chemical and surgical mutilation of children, including regulatory and sub-regulatory actions, which may involve the following laws, programs, issues, or documents:

(i) Medicare or Medicaid conditions of participation or conditions for coverage;

(ii) clinical-abuse or inappropriate-use assessments relevant to State Medicaid programs;

…

(vii) the Eleventh Revision of the International Classification of Diseases and other federally funded manuals, including the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition.

Similar to the OMB directive, the EO repeatedly states “consistent with applicable law.” This is known as a savings clause. “Appropriate steps” are in there too. Does responsible jargon like this save an order from being declared unconstitutional if other language in the order would be unconstitutional on its own? Courts have ruled in both directions (yes, no).

The OMB Directive’s savings clause seems disingenuous. It was carried out too swiftly for agency lawyers to have researched what the law required.

Jan. 29: OMB Directive Rescinded

OMB issues a curt memo about the funding freeze:

“OMB Memorandum M-25-13 is rescinded. If you have questions about implementing the President’s Executive Orders, please contact your agency General Counsel.”

Jan. 30: Hospitals Bail on PGM

Hospitals are shutting down their PGM practices. Denver Health, Children’s National Hospital (DC), Children’s Hospital of Richmond (VA) and Virginia Commonwealth University Health confirm they’re bailing to NBC on Jan. 30.

The list will grow.

Jan. 31: HRSA Defunds PGM

HHS’s Health Resources and Services Administration (HRSA) emails grantees:

“Effective immediately, HRSA grant funds may not be used for activities that do not align with Executive Orders (E.O.) entitled … Protecting Children from Chemical and Surgical Mutilation, and Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (Defending Women). Any vestige, remnant, or re-named piece of any programs in conflict with these E.O.s are terminated in whole or in part.”

Jan. 31: New York v. Trump

Blue states team up to sue Trump over the funding freeze. While New York takes the lead, they file in the federal District of Rhode Island – perhaps because the First Circuit is very favorable terrain for Democrats.

Federal lawyers argue the case is moot because the OMB Directive was rescinded. Chief Judge John J. McConnell says it’s not moot because the administration is still behaving as though it might yank everyone’s funding. In his order of Jan. 31, he lays out some recent history (citations omitted):

“the Defendants filed a Notice [in this court] saying, ‘OMB elected to rescind that challenged Memorandum.’ Yet about twenty minutes before the Defendants filed the Notice, the President’s Press Secretary sent a statement via the X platform that said: “The President’s [Executive Orders] EO’s on federal funding remain in full force and effect and will be rigorously implemented.” And then the following day (January 30, 2025 at 7:50 MST and again at 5:27 p.m. EST) after the so-called rescission, the Environmental Protection Agency, in an email to federal grant recipients, said that the awarded money could not be disbursed while it worked ‘diligently to implement the [OMB] Memorandum, Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs, to align Federal spending and action with the will of the American people as expressed through President Trump’s priorities.’”

It's a broad ruling. Judge McConnell emphasizes that he wishes he could draw it more narrowly; he’s not saying the federal government has no power over spending:

“Are there some aspects of the pause that might be legal and appropriate constitutionally for the Executive to take? The Court imagines there are, but it is equally sure that there are many instances in the Executive Orders’ wide-ranging, all-encompassing, and ambiguous ‘pause’ of critical funding that are not. The Court must act in these early stages of the litigation under the ‘worst case scenario’ because the breadth and ambiguity of the Executive’s action makes it impossible to do otherwise.”

McConnell finds “the States are likely to succeed on the merits of some, if not all, their claims[.]” The points he highlights don’t resemble the “future NIH grants” scenario.

Judge McConnell’s order is similar to Judge Alikhan’s, from the nonprofits’ lawsuit:

“During the pendency of the Temporary Restraining Order, Defendants shall not pause, freeze, impede, block, cancel, or terminate Defendants’ compliance with awards and obligations to provide federal financial assistance to the States, and Defendants shall not impede the States’ access to such awards and obligations, except on the basis of the applicable authorizing statutes, regulations, and terms. “

Feb. 2: CDC Defunds Gender Ideology

HHS emails recipients of funds from the Center for Disease Control:

“You must immediately terminate, to the maximum extent, all programs, personnel, activities, or contracts promoting or inculcating gender ideology at every level and activity, regardless of your location or the citizenship of employees or contractors, that are supported with funds from this award.”

Is this a threat to yank funds? If so, two courts now have blocked Trump’s ability to (legally) follow through on it.

Feb. 3: National Council of Nonprofits v. OMB

In the nonprofits’ funding-freeze lawsuit, Judge Alikhan extends her stay in the form of a temporary restraining order (TRO). The federal government still can’t meddle with open grant awards; future grants and other administrative acts aren’t subject to the TRO.

The plaintiffs had accused OMB of illegally “impounding” funds allocated by Congress by refusing to spend them. Judge Alikhan doesn’t rule on this claim because she doesn’t have to. She only needs one argument to support the TRO and she chooses the Administrative Procedure Act. The OMB Directive was “arbitrary and capricious”:

“The APA requires a rational connection between the facts, the agency’s rationale, and the ultimate decision. Defendants have offered no rational explanation for why they needed to freeze all federal financial assistance—with less than twenty-four-hours’ notice—to ‘safeguard valuable taxpayer resources.’ …

“Rather than taking a measured approach to identify purportedly wasteful spending, Defendants cut the fuel supply to a vast, complicated, nationwide machine—seemingly without any consideration for the consequences of that decision. To say that OMB ‘failed to consider an important aspect of the problem’ would be putting it mildly.”

While Alikhan doesn’t rule on impoundment, she does note it is potentially an issue. After sketching the legal principle, she finds (citations omitted):

“Defendants’ actions in this case potentially run roughshod over a ‘bulwark of the Constitution’ by interfering with Congress’s appropriation of federal funds. OMB ordered a nationwide freeze on pre-existing financial commitments without considering any of the specifics of the individual loans, grants, or funds. It did not indicate when that freeze would end (if it was to end at all). And it attempted to wrest the power of the purse away from the only branch of government entitled to wield it.”

This differs from the Mutilation EO, which doesn’t direct HHS to sit on appropriated research funds but rather lets it dole them out to entities that aren’t transing kids. (I assume Congress hasn’t specifically designated funds for PGM, but perhaps I shouldn’t overestimate our elected officials.)

The government had argued the case was moot because it rescinded the OMB Directive. Alikhan found she needed to rule – and to rule broadly – because government agencies were freezing funds in ways that seemed unrelated to the OMB Directive or EOs:

“As just one example, a health center that provides medical, dental, and behavioral health services to a rural community was denied access to grant funds. None of the seven executive orders listed in [the OMB Directive] would seem to cover such activity.”

Feb. 3: Gotham v. Puberty

In midtown Manhattan, the Democratic Socialists of America summon hordes of people to protest NYU Langone Hospital for canceling puberty blocker appointments. The crowd numbers over a thousand as it marches down First Avenue, according to NYU’s campus paper and the terfs of ROAR Women NYC.

Actress Cynthia Nixon declares at the rally that her daughter and niece are trans, as well as her best friend’s daughter and her daughter’s best friend.

Later in the week, trans activists will protest outside a hospital in Seattle.

Feb. 4: PFLAG v. Trump

A powerhouse team of lawyers from the ACLU, Lambda Legal and biglaw firms Hogan Lovells and Jenner & Block sue Trump in the federal District of Maryland over the Mutilation EO. Their clients are an “LGBTQ” medical lobbying group known as GLMA and trans-identified kids and their families. They argue the Mutilation EO is unconstitutional and conflicts with various federal statutes.

The complaint alleges that attaching strings to federal grants is a violation of the separation of powers:

“None of the Congressional conditions placed on the grants administered or disbursed by HHS, HRSA, NIH, or any other HHS’s subagencies condition federal funds on the terminating gender affirming medical care.”

Wait – the executive can’t place any conditions on grants that weren’t precisely specified by congress? HHS can’t fund one hospital instead of another based on the type or quality of care it provides? So all these minute decisions are being made in Congress? Maybe this argument will look better when the plaintiffs flesh it out in a brief, but right now it’s fishy.

The lawsuit also alleges anti-trans and sex discrimination, which I’ll address below, and refers repeatedly to the HRSA Directive, which I won't address because …

Feb. 5: HRSA Directive Rescinded

HRSA rescinds its “stop transing kids” directive the next day.

Feb. 7: NIH Grants for Overhead Costs Are Slashed

As the week winds down, NIH posts on X that it is capping the amount its grantees can spend on “indirect costs,” which basically means overhead. The “guidance” will be effective on Monday, February 10, so current grantees will experience an abrupt cut.

Trump first proposed the idea of capping indirect costs in 2018, according to Yuval Levin. The Republican-led House and Senate rejected it and actually inserted new language in the HHS appropriation bill to explicitly bar the president from enacting it. Congress has included that language in every HHS appropriations bill since. Because of this, Levin — writing for the conservative New Atlantis — argues the latest NIH guidance “is probably illegal.”

Blue states will sue in the federal District of Massachusetts and secure a TRO.

Feb. 7: New York v. Trump

In the blue state funding freeze lawsuit, Judge McConnell finds the administration is not complying with his previous order:

“In particular, Defendants have—for the first time this week—taken the position that certain federal funds, including federal financial assistance under the Inflation Reduction Act (“IRA”) and the Infrastructure Improvement and Jobs Act (“IIJA”), is outside the scope of the Court’s Order, a position contradicted by the plain text of the Order and the notice Defendants previously filed with the Court … there is no world in which these scattershot outages, which as of this writing impact billions of dollars in federal funding across the Plaintiff States, can constitute compliance with this Court’s Order.”

On Monday, Judge McConnell will declare Trump has violated his order and remind the administration that it could be held in criminal contempt.

Feb. 7: Washington v. Trump

Washington, Oregon, Minnesota, and three anonymous Washington doctors sue Trump in the federal Western District of Washington.

Why are these three states leading the charge against the Mutilation EO? Oregon has more PGM patients than Massachusetts, even though its population is 60% of the Bay State’s and Boston is ground zero for the entire epidemic. Washington has more kids on hormones or blockers than New York, even though New York is more than double Washington’s size. Minnesota has been at the vanguard of trans rights since the mid-1960s and its attorney general, Keith Ellison, is a progressive firebrand.

They bring similar claims as PFLAG v. Trump, plus argue that Trump has violated the states’ right to sovereignty under the Constitution’s Tenth Amendment – an issue they connect to the EO’s passage on female genital mutilation, not defunding.1

The plaintiffs assume the Mutilation EO will lead to immediate loss of funding:

“Absent an injunction, the Order will terminate over one billion dollars of federal funding to the Plaintiff States’ medical schools and hospitals that is used to research and treat hundreds of conditions having nothing to do with gender-affirming care[.]”

Trump hasn’t moved against these institutions’ entire portfolios. But his antagonism toward grantees in general validates the states’ hysteria.

Like the ACLU’s clients, these plaintiffs argue that denying grants to gender doctors is discrimination by sex, transgender status, and disability (gender dysphoria). Like the other plaintiffs, they have filed in a jurisdiction where their case will be easier to make because trans-identified people are a quasi-suspect class (though the Skrmetti ruling expected in June could wipe out those precedents). The sex and trans discrimination arguments are basically the same as the ones used to challenge state bans on PGM. Four of those have gone to trial so far, and the plaintiffs have won twice.

But this week the discrimination argument took an unexpected hit.

As hospitals skittered away from child gender medicine, the attorneys general of California and New York warned them that it was, in their legal judgment, illegal discrimination not to trans kids. It seems if a surgeon performs mastectomies for breast cancer patients then she must also perform them for gender-dysphoric 13-year old girls, against her medical judgment, and despite the lack of evidence supporting gender medicine, or else she could face civil prosecution under state human rights laws.

The AGs are calling out hospitals that got out of the game in response to the Mutilation EO. But their legal theory should apply equally to doctors who never transed anyone to begin with.

All of this follows logically from the claim the ACLU has been making for years when it attacks bans. But in this formulation – aimed at healthcare providers rather than at state legislatures – it’s much more alarming. The AGs are presenting the reductio ad absurdum of the ACLU’s argument.

Now that the absurdity is revealed, I don’t think a judge will rule there’s a right to PGM under anti-discrimination law.

Feb. 9: The Tweet

Vice President JD Vance posts on X:

“Judges aren't allowed to control the executive's legitimate power.”

Is Vance threatening to blow off the judicial branch? Georgetown law prof Steve Vladeck assures us the next night that although Vance “walked right up to that line … no one in the executive branch has yet called for, or appears to be engaged in, outright defiance of a federal court order.”

Chaos, not crisis.

I’ve yet to see a compelling argument that HHS can’t condition future grants on hospitals and universities nixing PGM. One may exist, but far be it from me to build and publicize it.

Still, there’s cause for concern.

Congress could react to the funding-freeze high jinks by passing more restrictive appropriations bills. Republicans only hold a slight majority in each chamber, and they are not lock-step opposed to PGM.

Courts might issue rulings in other funding cases that narrow the executive’s discretion in general (this is the risk of litigating any case that has “bad facts” for your side).

The barrage of fast-paced litigation brought by defunding victims and others aggrieved by Trump's actions may strain the Justice Department which, like most of the federal government, is operating under a hiring freeze. If bedraggled attorneys decamp to the private sector, the government won’t have all the administrative and constitutional law wonks it needs to defend bold presidential moves.

But for now, many hospitals are quietly capitulating to the Mutilation EO. And this on its own might spell doom for PGM. We’re told to support it because it’s “life-saving” – but gender doctors abandon their young patients at the sight of a feisty presidential pronouncement that is not even a law? With their hospitals’ PR teams nowhere to be found, the gender doctors may finally be exposed.

Related: My X thread on Washington v. Trump

“This is wrong.”

–President of the United States (2025)

Updates were added on Jan. 28-29, 2025, as noted below.

The United States government just declared war on its former ally.

Under President Joe Biden, it fought for the rights of avant-garde endocrinologists and boys who wanted to compete in girls’ sports. On January 20, 2025, President Donald Trump took office. He signed an executive order hours later declaring his administration stands for “the biological reality of sex.” This EO did what Biden avoided for years: it defined sex. It also counted the sexes (2). And it launched a war on gender ideology.

The EO is a set of marching orders to various federal agencies. It’s also a deft verbal assault with minimal jargon.

In the EO, Trump orders federal bureaucrats to say “sex” instead of “gender” and to shoot “gender ideology” on sight. He defines the term:

“‘Gender ideology’ replaces the biological category of sex with an ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society to regard this false claim as true. Gender ideology includes the idea that there is a vast spectrum of genders that are disconnected from one’s sex.”

In this post I’ll break down what the EO means for American life and what’s changed already.

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First, a word on the EO itself.

“Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (Washington, DC, 2025)

I’ve sometimes had a problematic thought when perusing gender-critical media:

The women think this is about lies and the men think it’s about science.

For example, the litigation teams defending state bans on child gender medicine emphasize studies – they seem mostly to be led by men. Feminist orgs like WoLF then file amicus briefs exposing the plaintiffs’ deceptive wordplay. Esteemed male sexologists prattle on about their commitment to evidence; women in the peanut gallery guffaw at their contradictions.

As a woman who believes calling out the lies, not the scientific inadequacy, will end this, I felt pleased to see a woman, May Mailman, identified as lead drafter of the two-sexes EO. A lawyer by trade, Mailman is Deputy Assistant to the President and Senior Policy Strategist. She previously served as director of the Independent Women’s Law Center.

The EO represents a triumph of candor over science. You won’t find the word “dimorphic” here. Its definitions of sex, male, and female have a light touch. They refer to gamete production and that’s all the biology they need. Health and Human Services will follow up with “clear guidance expanding on the sex-based definitions[.]” In other words, the nerds at HHS will taxonomize each disorder of sex development.

Instead of scientific or sociological minutiae, the EO drops truth bombs like this:

“Gender ideology is internally inconsistent, in that it diminishes sex as an identifiable or useful category but nevertheless maintains that it is possible for a person to be born in the wrong sexed body.”

Men in Women’s Prisons

Section 4(a) of the EO:

“The Attorney General and Secretary of Homeland Security shall ensure that males are not detained in women’s prisons or housed in women’s [immigration] detention centers …”

Federal Facilities

Men are in women’s federal prisons because of regulations that the Justice Department issued in 2012 under the Prison Rape Elimination Act (2003). These regs imposed a modified self-ID regime on the penal system:

“the [Bureau of Prisons] shall consider on a case-by-case basis whether a placement [in a men’s or women’s prison] would ensure the inmate’s health and safety, and whether the placement would present management or security problems.”

There’s no requirement that the men undergo genital surgery or even take hormones. Indeed, the vast majority are intact. (My deep dive into PREA.)

Inmates can’t sue under PREA, which means the BOP could get away with simply rejecting every man’s request to serve his time in the women’s ward. But there are problems with that approach. The deep state might not play along. The rotten regs would still be on the books when the next president takes over. And “transgender” inmates point to the PREA regs when they sue BOP under the Constitution’s 8th Amendment prohibition on “cruel and unusual punishment.”

So the EO wisely directs the AG to amend the PREA regs “as necessary.”

That process will likely take a few years. But BOP is already taking action. According to the Daily Mail, BOP notified men in women’s prisons of their imminent transfer the day after Trump signed the EO.

The ACLU could find a plaintiff and sue. But so far it hasn’t. Nor have any other social justice lawyers, as far as I can tell, even though they’ve traditionally been able to strike very quickly (including on immigration this past week).

This is not an issue that national orgs have highlighted in the past. I can guess why. Not only are the men all criminals, but the PREA regulations are highly indulgent. Why draw attention to them? I think most Americans believe that men in women’s prisons have all been castrated. If the ACLU pushed the issue into the spotlight, the truth might come out.

State Facilities

PREA applies to states indirectly by conditioning funds on compliance. No doubt Trump will let them slide on trans-exclusivity. The real problem, in many states, is laws their own legislatures passed since the late 2010s.

Trump’s DOJ can sue the state systems for violating female inmates’ civil rights. It would face obstacles in arguing that trans-inclusive policies on their own are illegal (for one thing, those barbaric PREA regs will remain on the books for the next few years). But prison systems are notorious for turning a blind eye to abuse and degradation that women face as a result of trans-inclusive policies. That negligence is illegal. DOJ can also sue to vindicate the women’s right to privacy – the type of lawsuit Rhonda Fleming brought. (Since that story was published, Fleming lost the trial. The judge has now asked the parties whether the EO renders his decision moot because it removes men from women’s prisons. If so, he wants to vacate his ruling, which would mean no appeal.)

Gender Medicine for Prisoners

Section 4(c) of the EO:

“The Attorney General shall ensure that the Bureau of Prisons revises its policies concerning medical care to be consistent with this order, and shall ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”

The ACLU has sued prisons in the past for refusing inmates’ demands for hormones and surgeries. The theory is that these cosmetic treatments are “medically necessary,” so denying them is unconstitutional “cruel and unusual punishment.”

The ACLU calls expert witnesses who cite the authority of WPATH. In the past, WPATH’s credibility was unimpeachable. Who could claim more expertise on gender medicine than WPATH?

Last year, the Alabama Attorney General exposed that WPATH’s process for drafting its Standard of Care v. 8 (2022) was corrupt. Drafters acknowledged they used the term “medically necessary” to score insurance coverage.

Now if the ACLU cites WPATH in prison litigation, its adversary will follow Alabama’s playbook and subpoena even more internal documents from WPATH. (The ones we’ve seen pertain to SOC8’s chapters on minors.)

Federal prisons are held to a strict and stingy healthcare budget. Tragic stories abound. Eliminating gender medicine from the system will save the patients its ravages and restore funding to real medicine.

Update Jan. 28, 2025: GLAD and NCLR sued Trump and others for transferring their trans-identified male client to a women’s prison and halting his estrogen prescription. This is the B team; ACLU is still quiet. The complaint refers to trans medical protocols without naming “WPATH” — an absurd evasion that won’t protect WPATH from subpoenas.

Gender Medicine for Everyone Else

Otherwise the EO is silent as to gender medicine.

The EO’s hostility to gender ideology might embolden health insurers to drop or restrict coverage for gender medicine. Contrary to popular belief, Obamacare doesn’t require them to pay for it. That’s a myth based on the dubious legal theory that the statute’s ban on sex discrimination applied. Biden’s HHS regs to that effect have been enjoined.

I’d like to see DOJ investigate pharma’s role in promoting hormones and blockers, and the Federal Trade Commission investigate gender doctors who deceive patients. They could do this. But the EO doesn’t make them.

Update Jan. 28, 2025: Trump just signed an EO dealing with child gender medicine. It bars funding to all entities that engage in the practice and directs investigations by DOJ into consumer fraud and other issues.

Bathrooms and Pronouns at Work

This one turned out to be surprisingly complicated.

Section 5 of the EO (emphasis added):

“The Attorney General shall issue guidance to ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964. In accordance with that guidance, the Attorney General, the Secretary of Labor, the General Counsel and Chair of the Equal Employment Opportunity Commission, and each other agency head with enforcement responsibilities under the Civil Rights Act shall prioritize investigations and litigation to enforce the rights and freedoms identified.”

Free speech is protected by the First Amendment of the US Constitution. If you work in government, your boss has limited ability to fire you for how you express yourself. Also, even if you work in the private sector, the government can’t impose rules on your workplace that interfere with your First Amendment rights.

Sex discrimination and harassment at work is banned by Title VII of the Civil Rights Act.

Title VII doesn’t mention “gender identity.” But in 2020, the Supreme Court ruled in Bostock v. Clayton County (2020) that it bars employers from firing workers for “being transgender.” The ruling didn’t address bathrooms or pronouns. As to bathrooms, it literally said it wasn’t going there. And yet …

The EEOC & Private Employers

The agency that enforces Title VII against private employers is the Equal Employment and Opportunity Commission (EEOC).

Last year, the EEOC interpreted Title VII to impose a gender regime: bathroom access based on gender identity and mandatory preferred pronouns. The authority for this reading? Bostock. EEOC codified its interpretation in regulations that have been challenged in court.

Trump appointed Andrea Lucas to chair the EEOC. She’s on board with the EO. But three of the agency’s five commissioners are Democrats who back the Bostock-inspired regs. They already issued a statement claiming the EO is out of line with the law. Republicans won’t dominate for the next two years.

Seyfarth Shaw, a law firm serving employers, predicts:

“the EEOC will have difficulty formally adjusting their investigation and litigation priorities in this area. However, as Acting Chair, Lucas has numerous tools at her disposal to influence the EEOC’s messaging and action in this area.”

Another firm, Jackson Lewis, advises employers

“to carefully consider policies and practices with respect to, for example: Restroom access … Misgendering … This is a developing situation, and we are continuing to analyze and understand the implications for employers.”

Biglaw firm Paul Weiss also threw up its hands about “compliance with anti-discrimination laws amidst a shifting legal landscape.”

Unlike some other federal agencies, EEOC still has gender webpages up, like this one that advises intentional misgendering can create a “hostile work environment.”

The multistate challenge to EEOC’s gender regs is led by Tennessee. Oral argument was scheduled for January 27 on its motion for a preliminary injunction. Two days after the EO dropped, the Justice Department asked the court to cancel the imminent hearing. It said the “position of the United States is reflected in the [EO], notwithstanding any prior position taken by the [EEOC] in this case.” But it didn’t say the US would stop defending the suit or that it planned to rescind the regs. Judge Charles E. Atchley, Jr., noted the ambiguity. He canceled the hearing “for the time being” – and directed Tennessee to re-file its motion to address the “changed legal landscape.”

Note Jan. 28, 2025: that paragraph previously said EEOC filed the motion. I’ve edited it to reflect that DOJ did.

The EO directs EEOC to “promptly” take down its guidance related to the gender regs. That’s the document EEOC cited in its motion. But the regs themselves need to be rescinded through a formal (long) rulemaking process. (Not very important, but as of this writing, the guidance is still online.) The EO doesn’t explicitly say that, and EEOC didn’t address that point in its motion. Hopefully EEOC will stop defending the regs and rescind them. But right now we can’t be 100% certain it will.

It is possible for the EEOC to thumb its nose at the president. In 2017, it prosecuted a gay-rights case that the Trump administration wanted it to drop. (I’ll discuss gay stuff below.) The Justice Department showed up at the appeal and argued against the EEOC. The judges found this US v. US showdown “awkward.”

Justice Department & State/Local Government Employers

The Justice Department prosecutes state and local governments for violating their employees’ rights under Title VII and other laws. This agency can be counted on to carry out the EO. Trump has nominated Pam Bondi to run it as Attorney General and Harmeet Dhillon to lead its Civil Rights Division. Dhillon is a warrior – she had her firm represent Chloe Cole (the first major detrans lawsuit), female prisoners suing California for siccing male bunkmates on them, a Rhode Island mother demanding to see her kids’ school’s gender curriculum …

Pro-Trans State Laws

Many states ban discrimination by “gender identity.” Regulations interpret these statutes to grant bathroom and censorship rights to trans workers.

If challenged in court, those regs should fail because they’re outside the scope of the statute (gender identity discrimination doesn’t mean treating someone as their sex) and violate free speech rights. And if they conflict with federal law protecting sex then the federal law trumps. But, again, EEOC may not be joining the war against gender just yet.

This is confusing. Employers in these states are in a sticky situation. They could be sued no matter how they configure their bathrooms. I’d err on the side of respecting sex over gender because of the gender regs’ weaknesses. And the EEOC will start fighting for this side eventually.

Update Jan. 28, 2025: Trump has fired two EEOC Democratic commissioners. According to the New York Times, it’s unclear whether he has authority to do that and it will leave the agency without a quorum for some official acts.

School Sports & Bathrooms

The EO doesn’t address school sports, bathrooms or locker rooms.

Biden’s Title IX rewrite was recently vacated nationwide. I believe it’s dead and can’t be revived. And it never addressed sports. So Title IX allows single-sex bathrooms and locker rooms, and it requires schools to fund girls’ athletics the same as it funds boys’.

When you see boys dunking on girls in high school basketball games, thank state law or league rules, not the federal government. Same for unisex bathrooms. The question is whether Ed will clamp down on the states, leagues, and schools.

Trump’s EO didn’t explicitly direct it to. But Section 2(f) of the EO directs the Attorney General to “issue guidance and assist agencies in protecting sex-based distinctions[.]” That, in turn, could support Ed in drafting new regulations under Title IX to protect girls’ sports. Ed could also mandate single-sex spaces. Up till now, the law has merely allowed them (except for the 15 minutes when Biden’s rewrite was in effect).

Elsewhere Education officials have sounded a note of local control. Since suing schools inevitably draws resources away from kids, there may be a hope that schools will get in line without a brawl.

Update Jan. 29, 2025: Ed is investigating Denver Public Schools for replacing a girls’ bathroom with an “all genders” bathroom — and leaving the nearby boys’ bathroom alone.

School Curriculum & Environment

Th EO directs the government to stop indoctrinating Americans. Section 3(e):

“Agencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages.”

It tags for deletion several webpages and guidance documents aimed at schools, like “Toolkit: Creating Inclusive and Nondiscriminatory School Environments for LGBTQI+ Students.” By Friday, “LGBTQ” Ed webpages were displaying 404 codes.

A different EO directs agencies to dismantle DEI (“illegal and immoral discrimination programs”). It’s associated with race in public discourse. But the administration is also applying it to gender ideology. From the Deputy General Counsel at Ed:

Between the two EOs, it’s safe to say the federal government is out of the gender unicorn business.

Pronouns at School

Just as gender ideologues argue “misgendering” creates a “hostile work environment,” they also argue it is sex-based “harassment” at school. But in fact misgendering at a public school should be protected by the First Amendment. And the EO’s workplace section shows the administration prioritizes free speech rights.

In light of the EO, the law firm Miller Nash warns school officials:

“Education entities … need to be mindful of First Amendment rights and carefully evaluate the intersection between protected expression and bullying/harassment.”

Rape Shelters

The EO directs rescission of an Obama-era rule that designated emergency shelter by gender identity – in other words, it let men into rape shelters. Unfortunately, the rulemaking process may take a few years.

Section 4(b):

“The Secretary of Housing and Urban Development shall prepare and submit for notice and comment rulemaking a policy to rescind the final rule entitled ‘Equal Access in Accordance with an Individual’s Gender Identity in Community Planning and Development Programs’ of September 21, 2016, 81 FR 64763, and shall submit for public comment a policy protecting women seeking single-sex rape shelters.”

Update Jan. 28, 2025: Listen to this account by a woman who lived in a homeless shelter for “women” that also housed trans-identified men.

Defund Gender

The EO defunds gender. Section 3(e):

“Agencies shall take all necessary steps, as permitted by law, to end the Federal funding of gender ideology.”

Federal funding is everywhere. Nonprofits, schools, health clinics, scientific research. Contracts with private businesses. And gender ideology is defined broadly (quoted above). It could include any policy that recognizes preferred pronouns or entertains fanciful ideas of a sex spectrum.

Cutting existing grants or refusing to spend funds allocated by Congress would lead the administration into a thicket of regulation, as the law firm Feldesman explains. But when it comes to renewing grants or funding new projects, it appears the government doesn’t have to pay for stuff it hates. And it can attach strings related to gender. I’m curious to see the contract language that agencies come up with — the EO’s definition of gender ideology isn’t optimized for that format.

Science reports that young researchers are afraid they won’t be able to build careers in the field of gender. It measures the scope of impact:

“There are 412 [National Institute of Health] grants worth $235 million whose abstracts contain the terms ‘transgender,’ ‘gender minority, or ‘nonbinary.’ ... Many projects focus on care for transgender teens[.]”

How many of those studies rigorously examine the medical harms caused by puberty blockers, cross-sex hormones, and cosmetic surgery? Science doesn’t say. I’m going to assume (a) the answer is “few or none” and (b) the Administration won’t view those studies as promoting gender ideology.

The Substance Abuse and Mental Health Services Administration doled out $360 million in grants to programs that used the term “transgender” in their application, according to the Daily Caller. I clicked a few applications at random, and these programs aren’t actually about identity. They just mention “transgender” as a demographic category. Now they’ll leave that data out.

Over the last several years questions about “gender identity” on intake forms have proliferated. If the data was sought for the purpose of applying for federal funds then they’re about to vanish.

In fact, a lot of gender diversity bathroom signs and ugly flags might soon vanish. Jeopardizing contracts with the federal government isn’t worth it.

In 2015, HHS sprouted a “Sexual and Gender Minority Research Office” (SGRMO). The psychiatrist Kris Kaliebe examined SGRMO files in an expert witness report last year; I covered his work in an X thread. At the end I linked to “LGBT” studies that NIH funded to show they hadn’t covered “gay” or “lesbian” issues since 2011. The link is now broken.

The Los Angeles Times asked Erwin Chemerinsky, dean of UC Berkeley Law School, what the EO’s funding threat meant for schools and colleges:

“At this point, it is hard to know what [Trump’s order] will mean in California. … The impact on states with different policies is unclear at this point.”

Identity Documents

Section 3(d) requires agencies to “implement changes to require that government-issued identification documents … accurately reflect the holder’s sex[.]” Details are left to the agencies. The EO doesn’t apply to states, so drivers’ licenses may continue to reflect gender identities instead of sex.

Abortion

Advocates for abortion rights are nervous because the EO refers to conception:

“‘Female’ means a person belonging, at conception, to the sex that produces the large reproductive cell.”

Anti-abortion advocates argue embryos and zygotes are “people” and therefore abortion is murder. This definition implies they’re right about part 1 of that sentence.

The EO doesn’t have any bearing on abortion policy but its language might worm its way into an anti-abortion argument in the future. It’s discomfiting to abortion-rights advocates. Still: IVF is very popular so the argument that destroying embryos is murder can’t go anywhere.

I’d suggest anti-gender activists embrace the EO’s definition of sex because it’s good. Sex is fixed at conception. “Birth” has nothing to do with sex and invoking it would confuse people who are used to hearing the gender-ideologue term “sex assigned at birth.”

Gays

The EO says nothing about gay people, sexual orientation, or sex/gender nonconformity. It doesn’t deploy the term “LGBT.” Although some definitions of “gender ideology” sweep in gay marriage, the EO’s does not.

But Section 7(c) targets specific documents for destruction that have “LGBTQ” in the title. Will we miss them when we’re gone?

First, the EO allows agencies to rescind only “parts” of the documents. They can literally cut out the T with scissors.

But more important, I don’t think these materials are helpful for gays.

I pulled a file that’s still available online at UCLA archives, “Confronting LGBTQI+ Harassment in Schools.” It provides examples of anti-gay bullying that students should report to Ed and Justice: a girl who’s barred from attending a dance with her girlfriend; a boy shoved against a locker and called a slur while teachers look the other way.

These are real problems that I’d like the federal government to tackle. But get real. A Republican administration isn’t going to fight for a teenage lesbian’s right to make teachers feel uncomfortable. More likely priorities for its civil rights enforcement: free speech, free exercise of religion, confronting anti-Semitism, parents’ rights, rooting out racial preferences, due process for students accused of sexual assault, and sex-based rights when they clash with gender ideology.

If that LGBTQ flyer were still in circulation, it would just be giving gay kids false hope.

Some of the regs targeted by the EO bar “sexual orientation” discrimination in addition to gender identity. But we might not lose sexual orientation. Again, the EO allows agencies to leave it in. And I’ve noticed that in at least a few of the legal challenges to Biden’s rewrites of civil rights regs, plaintiffs left sexual orientation alone. This might reflect a general Republican acquiescence to gayness or an acknowledgment that Biden was on solid legal ground when he banned anti-gay discrimination.

That’s because Bostock is a stronger precedent when it comes to gay people. We aren’t seeking any rights that the decision explicitly excludes. There are also other appeals court rulings protecting gay people under the rubric of sex discrimination law, on the theory that homosexuality violates sex stereotypes.

The Biden administration encouraged gay teenagers and gender-nonconforming children to believe they could change sex. It fought in court for the rights of gender doctors to arrest their development and hook them on steroids. This was a world-historic assault on our people. And many of those conducting the assault believed they were helping “the LGBT community.”

I look forward to four years of benign neglect by the Trump administration as it carpet bombs our enemies.

Related: My analysis of the EO’s definition of gender identity and what it means for trans litigation.

Senator Elizabeth Warren knows that the testosterone injected in trans-identified girls is anabolic steroids. She acknowledged as much in a 2022 letter to the Drug Enforcement Agency, signed by only one other lawmaker, which demanded that the drug be re-classified to make it easier to access. In the letter, Warren – who is renowned for her cynicism toward powerful business interests – and her colleague, Sen. Ed Markey, parroted unfounded healthcare lobbyist talking points:

“gender-affirming hormone therapy is safe, effective, medically necessary, and critical to the health and well-being of transgender people.”

Warren’s advocacy of steroids extends to underage girls. In 2024 she joined an amicus brief filed by members of congress that called on the Supreme Court to rule minors have a constitutional right to receive puberty blockers and cross-sex hormones.

Warren’s role in transitioning kids intrigues me because when she was my age, she was an obscure law and policy wonk – just like me and many of my friends. And broadly speaking we are not trans activists. Opposition to the trans agenda is widespread in my professional circles. Yet we haven’t stopped it; we haven’t stood up to our own trans activist colleagues who are leading the charge for child gender medicine and boys in girls’ sports. (OK, I've had some arguments.)

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What’s wrong with the wonks?

This is Elizabeth Warren’s story.

“As We Forgive Our Debtors” (1989)

As a young professor of commercial law in the 1970s, Warren hung with the conservative “law and economics” crowd. It was a pro-business movement that could afford to woo rising academics. Warren met her husband, Bruce Mann, at one of its conferences.

Law and econ articles tended to be abstract. The field trafficked in numbers, formulas, and models. But real-world data, not so much. Instead these scholars often ginned up hypothetical scenarios that followed made-up rules: “Assume everyone involved in the transaction knows everything about it and is acting in a way to optimize their financial position, and there are no barriers to new businesses trying to undercut the old ones …”

Within that milieu, Warren and two colleagues (a law professor and sociologist) contrived a quirky and quixotic project: to figure out who was filing for personal bankruptcy. Not who should file for bankruptcy under existing law, assuming they had no motives beyond financial optimization; not who might file in various hypothetical scenarios. Who was actually doing it.

At the time, lenders had been telling everyone – particularly impressionable young scholars at conferences – that consumers exploited the bankruptcy courts’ misaligned incentives. Warren eagerly set out to strengthen the lobbyists’ case. Years later she recalled she’d been “on the lookout for cheaters and deadbeats as a way to explain who was filing for bankruptcy.”

Warren and her colleagues trawled for quantitative data at bankruptcy courts – travelling there and Xeroxing files. They gathered qualitative data by surveying debtors and systematically interviewing them (and judges). Warren explained in 2008:

“When we interviewed the families who had filed for bankruptcy, quite frankly, I was shameless about this, we paid them $50 if they would take extensive telephone surveys for us about bankruptcy, and so we got very high response rates.”

Warren and her colleagues found that the industry’s narrative was all wrong. By and large, debtors filed for bankruptcy following real hardship like job loss and illness, not luxury spending sprees. They published the book As We Forgive Our Debtors in 1989, then various follow-up studies. A key insight: families were falling into debt in their quest for houses in good school districts. The groundbreaking project spurred Warren to fight against financial lobbyists, and to change her voter registration in 1996 from Republican to Democrat.

Warren also ditched law and econ. In 1987 she criticized the theory-based approach of a fellow bankruptcy expert, Douglas Baird, in the context of a friendly debate:

“I have offered a dirty, complex, elastic, interconnected view of bankruptcy from which I can neither predict outcomes nor even necessarily fully articulate all the factors relevant to a policy decision. Baird has offered a rational, clean approach in which he claims few factors are relevant and solitary conclusions are always compelled. Baird's view of bankruptcy is more chic than mine, but I believe my view is more realistic and more likely to yield useful analysis.”

I represented debtors and alleged debtors as a legal aid lawyer, first in suburban Massachusetts and then in Brooklyn. My on-the-ground perceptions matched Warren’s scholarly findings. By and large, Americans have sad reasons for getting into debt, feel ashamed by it, and act irrationally – against their own financial interest – as a result. The scant criticism of Warren’s early work on debtors is opaque and unconvincing.

So I think Warren’s scholarship during this era was legit. Her racial identity, not so much. She was calling herself an Indian.

White Lie

Warren, who is blonde, identified as a Cherokee Indian for decades, including in her 1970s bar registration. Her opponents charge that she was trying to benefit from affirmative action; her allies claim she did not benefit, and that in the 1970s-80s a Native American identity would not have conferred any benefit.

I actually believe Warren adopted the ruse (which she claims was informed by family lore) out of a weird but common pathos. We all know people who falsify their class background or sexual orientation absent any financial incentive. Race fakers provoke more ire than semi-celibate bisexuals but it might all be the same thing.

Planet of the Wonks

The 1989 book proved Warren to be the consummate wonk. What do I mean by that? And which lawyers are not wonks?

The only time in my life when I didn’t want to be a lawyer was during law school. At first I was thrilled to be attending NYU, which was known as being more progressive and supportive of “public interest” careers than its peers like Columbia and Chicago. But I soon found myself alienated by the loudest public interest students’ grandiosity. These people fully intended to save the world by filing novel Equal Protection challenges. Some of them were so utopian that I wondered if they hoped to render the legal system obsolete. They deliberated for months over whether gay white students should be allowed in the Edgar Allen Poe lounge, which they planned to convert to a safe space (ultimately NYU denied them the right to control entry to the lounge).

I graduated into the recession with no job and volunteered at Rhode Island Legal Services. That changed everything. The lawyers at RILS were self-deprecating, gritty, and fiendishly preoccupied with legal and practical minutiae. They represented one downtrodden client at a time and got no glory. This felt like home.

And so by the age of 25 I’d gotten to know both types of lefty public interest lawyers: revolutionaries and wonks. Revolutionaries (less politely known as social justice warriors) tend to cluster in anti-discrimination and constitutional law jobs. Wonks show up more often in economic fields like consumer protection and antitrust. Housing law trends revolutionary, at least in NYC. But representing hundreds of tenants can turn a revolutionary into a wonk. I believe my micro-generation of elder millennials (late 30s to mid 40s) is the workforce’s wonkiest, while revolutionaries predominate among Gen Z and the old hippies who still sit on boards and lead some offices.

To outsiders, wonks might seem to have the same worldview as their revolutionary peers. They get along. They congratulate each other on favorable settlements. Both breeds recite from the same catechism in job interviews. But there are those who write the catechism and those who just cram it the night before the test.

Wonks cheerfully outsourced lingo and slogan production to revolutionaries their whole lives and now they’re saying – wait, nonbinary people have rights?

In 2023 I saw that a conference in my field would feature a “womxn’s lounge” for all who identified as female or not male. One of the conference organizers was an old friend of mine who is a wonk par excellence, very reserved and realistic. I emailed her to explain the through-line from lawyers misspelling “women” to surgeons carving healthy breasts off teen lesbians. My friend didn’t respond. When I caught her eye at the conference, she nodded, held up her index finger, and ran away from me. Literally ran, swerving around startled consumer advocates in the crowded hallway.

Wonks pick their battles. They want to find a test case for their theory about the warranty of habitability or testify to the state legislature about why post-judgment interest should be no higher than the federal funds rate. They don’t want to argue about oppression and identities. Generally they only want to argue about one thing and it is something that cannot be explained at a 9th grade reading level.

“What Is a Woman’s Issue?” (2002)

So young Warren, with her dogged determination to protect the dusty old bankruptcy code from lobbyists, was a wonk. And she was not a revolutionary.

According to the Boston Globe,

“while Warren aligned herself with economic underdogs in her research, she was not viewed as a champion of women or minorities at the law schools where she taught. Silent on the race and gender wars that divided campuses in the 1980s and 1990s, she was never a liberal crusader.”

Politico in 2019:

“For much of her career, she has not been a vocal champion of women’s rights[.]”

But in 2002, now a professor at Harvard Law School, Warren plunged into the Harvard Women’s Law Journal to call out the feminist org NOW Legal Defense for hyping then-Sen. Joe Biden. He’d recently sponsored the Violence Against Women Act, sure, but he was also fighting to make it harder for consumers to file for bankruptcy. And this, Warren claimed, would hurt women. They made up 39% of filers vs. men’s 29% (the rest of the petitions were married man-woman couples).

Warren argued that women’s organizations should make fighting the bankruptcy bill a top priority. I don’t buy it. Women’s higher rates of bankruptcy at the time seemed to reflect challenges for single mothers that had nothing to do with the bankruptcy code itself – women’s orgs should tackle those upstream problems. My sense is that Warren whipped up the feminist argument because it was her ticket to a fresh venue to trash Biden in.

Anyway, the article is interesting because it proves that Warren understands very well how industry manipulates legislators to the detriment of ordinary people, particularly women.

On the financial industry’s power over lawmakers:

“Flush with money, the credit industry can hire the lobbyists to pay calls on every Senate and House staff member, prepare ‘information’ packages for Congress and the media, make calls to reporters, organize news conferences, buy advertisements in national newspapers, hire expensive law firms to draft legislative proposals, and pay for celebrity endorsements. Women's groups, even if they had no other issues to occupy their time and resources, cannot match this outlay.”

On how industry controls the narrative using “studies”:

“There is, of course, one well-funded source of data about the bankruptcy system: the credit industry. The industry has paid for its own studies, which it vigorously promotes, purporting to show that many of those who file for bankruptcy could pay their debts but are taking the easy way out with bankruptcy. Those studies, not surprisingly, do not focus on women.”

The gender industry also pays for and promotes its own studies. The studies don’t focus on women who are married to trans-identified men, competing against them in sports, or locked up in prison with them. When the studies concern gender medicine, the women are called “men.”

“The Two-Income Trap” (2004)

In 2004 Warren co-authored The Two-Income Trap with her daughter. Their argument: the American middle class had stagnated. Families were only keeping their head above water by having both parents work, but this led to higher costs (childcare, etc.) and greater vulnerability (if one parent lost a job, the other couldn’t compensate because they were already working). By knocking the sentimental glow off of stats about rising female wages, Warren showed once again that she didn’t care about the feminist party line.

The book landed Warren on Dr. Phil. People liked her. I think she succeeded because she was passionate about the topic. In a January 2008 talk on the book’s themes, she sounds obsessed with the fate of the middle class to the point almost of paranoia:

“I feel we’re moving from a three class society to a two class society. … Americans identify with the middle class, it affects our democracy, it’s part of what gives us our political stability … it affects who we are in this world, but I fear what’s happening and what these data are about is that we actually are gonna see a larger upper class. We’re seeing, not just the rich-rich, but the sort of rich, the ones who have the same jobs, bringing in two incomes, who don’t get sick, who don’t lose a job … they stay with the upper group. … and then the rest is just one long trail of underclass that stays on a constant debt treadmill.”

Months later the Great Recession hit. The middle class floundered. Warren looked like a seer.

I don’t think she was wrong to worry. But the focus on sudden shocks, rather than the difficulty of gaining security in the first place (a defining story of my generation), suggests she was myopically focused on one particular kind of struggling American: the kind that files for bankruptcy.

“Illness and Injury as Contributors to Bankruptcy” (2005)

Warren’s most contested paper claimed that “about half of debtors cited medical causes” for filing bankruptcy. Co-authored with two medical doctors and a sociologist, the study relied on generous metrics to determine what counted as causing a bankruptcy – a medical debt of over $1,000, for example, or the debtor stating that was the reason and later providing detailed information about the medical issue.

The paper was valuable to the project of establishing that many debtors are sympathetic characters – Warren’s metier. It also suggested, by unearthing worst-case-scenarios, that the healthcare system could play a role in causing “financial ruin.” But the analysis couldn’t support definitive conclusions about the healthcare system.

The authors were candid in the paper about their project’s limitations. But they could hardly have been surprised by what happened next – politicians cited the paper misleadingly to support arguments for health insurance reform.

Warren built alliances with those politicians, including then-Senator Barack Obama. She became a US senator herself by winning election in Massachusetts in 2012.

“Dream Big”: Campaign for President (2019-20)

An early bird, Warren announced her candidacy for the 2020 Democratic nomination for president in January 2019. The field would soon grow crowded. She bid for the role of “nerd” and the press granted it. In a New York Times column published days into her run, Paul Krugman appraised her: “she is what a serious policy intellectual looks and sounds like in 2019.”

Warren also beefed up her revolutionary bona fides by taking stands like refusing to participate in town halls hosted by Fox News.

In July 2019 it was reported that Warren had added pronouns to her social media bios. In September, she was the only presidential contender to appear at DragCon. NBC News dubiously suggested that any “strategy to maximize the LGBTQ vote could pay dividends in early primary and caucus states[.]” I suspect she was aiming for the endorsement of Rep. Alexandra Ocasio-Cortez. The sprightly New Yorker ultimately backed her fellow socialist, Sen. Bernie Sanders.

By then, Warren was on notice about trans. Kara Dansky knew Warren’s husband – she’d taken his class at Penn Law. She emailed him the TERF starter pack in May 2019 and asked him to forward it to Warren. He thanked her for the email, according to her book The Reckoning.

The Transgender Child

In January 2020, Warren appeared at a CNN Town Hall on LGBT issues. She opened by reading the names of “transgender women of color” who had been killed that year.

Then a 9-year old girl going by Jacob asked her how she would make “kids like me feel safer at school.” Jacob’s mother, Mimi Lemay, had just published a memoir of raising a “transgender child.” The family lived outside Boston, the site of America’s first child gender clinic.

Warren answered:

"I want to make sure that the person I think is the right Secretary of Education meets you and hears your story. And then I want you to tell me if you think that's the right person, and then we'll make the deal. Does that sound good?"

Note CNN’s casting choice here. Jacob was old enough to recite a line on stage but young enough to pass as a boy. She wasn’t a teenager sweating and wheezing in a breast binder or a lanky boy in a dress asking about sports. Warren had signaled throughout her campaign that she was down to embrace fringe identity stuff. At this forum, CNN served her a golden opportunity to endorse the concept of transgender minors. She accepted with gusto.

That was five years ago. Jacob’s mother is still writing about her journey as the mother of a transgender child, so presumably Jacob has used puberty blockers and perhaps steroids.

The Transgender Feminist

Warren’s energetic campaign was punctuated by frequent drops of new “plans” – webpages detailing various policy problems and proposing legal changes and government programs to address them. At the time they looked impressive. Today they look like she entered a prompt into ChatGPT:

“Summarize the demands of Ford-funded advocacy groups related to solving feline obesity in a tone that is progressive yet patriotic. Put the most arcane ideas in bold. Talk about black cats in a separate section.”

But ChatGPT wasn’t around in 2019. Instead Warren seems to have relied on staffers to synthesize activist demands.

A Guardian story published in February 2020 reported that she had secured the coveted Chase Strangio endorsement. Five MTFs and one FTM gushed about her solicitude:

“We talked candidly about the murders of black and brown trans women, and domestic violence,” said Raquel Willis, a trans rights organizer and former Out magazine executive editor, who met Warren last year at a roundtable with black women. They discussed solutions and ideas critical to black radical leftists that Democrats rarely touch, including prison abolition and decriminalizing sex work, Willis said: “No candidate is perfect. But there is a willingness to evolve. There is an openness. There is empathy.”

The Guardian also interviewed Charlotte Clymer, a spokesperson for the LGBT org Human Rights Campaign. Five years earlier, when Clymer was going by Charles, he identified as a “male feminist” and ran a “tyrannically controlled Facebook group” about feminism that led to him winning a “Good Guy Award” from the National Women’s Political Caucus. He verbally attacked women who disagreed with him.1 For example:

“You have to earn respect for your opinion. I’m not going to hand it to you because you’re a woman talking women’s rights.”

Clymer claimed to the Guardian (which didn’t mention he worked for HRC) that he discussed Warren’s stance on trans issues on a 90-minute call with the campaign.

Clymer raised $171,000 for Warren on Twitter in February 2020. She thanked him with a personal call. He reported that he asked her to demand testosterone be de-scheduled. “Her knowledge was amazing.”

Warren knew that as a major presidential candidate, she legitimized anyone she publicly associated with. That was her rationale for snubbing Fox:

“A Democratic town hall gives the Fox News sales team a way to tell potential sponsors it's safe to buy ads on Fox—no harm to their brand or reputation”

Yet her campaign showered attention on men like Clymer, greasing their future career path.

The next year Clymer joined the board of LPAC, which supports all of America’s powerful lesbian politicians. They all fight for “trans rights.”

Warren invested lots of time talking to “LGBTQ” people. This strategy followed the template she set in the 1980s interviewing debtors. But the debtors were a very large, random cross-section of the bankruptcy-filing population. The LGBTQs were a handful of professional activists. So much for methodology.

Running for president under the banner of wonkiness was always a contradictory idea. Wonks develop expertise by drilling down into one narrow area for years. Their methods don’t scale to generalist jobs.

Release the Steroids (2022)

The Strangio endorsement was a bust. Warren never won a single state in the 2020 Democratic primary.

Still a senator, she followed up on Clymer’s ask. In 2022, she was the only other lawmaker to sign on to Sen. Ed Markey’s demand that the DEA make it cheaper and easier for doctors to prescribe steroids. She knew very well it was the same drug that bodybuilders use. The letter reads:

“Congressional efforts to address the non-medical use of testosterone by athletes thirty years ago has inadvertently created barriers to medically necessary gender-affirming care today.”

Prescriptions for Schedule III drugs like steroids are monitored through state-level databases. The letter argues this tracking “outs” trans-identified people “to their health care providers, pharmacists, [and] family members[.]” But don’t family members already know the patient’s sex and observe the changes caused by testosterone? Shouldn’t healthcare providers know their patients’ sex and current drug usage?

It’s a goofy letter. I don’t know if it reflects Clymer’s influence. It’s worth noting Markey is Warren’s fellow Masshole. The state is home to the Harvard-approved gender pill mill Fenway Health.

So Much for Sounding Intellectual

In Warren’s 2002 article for the Harvard Women’s Law Journal, she anxiously conjured:

“a troubling specter of women exercising powerful political influence within a limited scope, such as rape laws or equal educational opportunity statutes, but wielding little influence in business or other supposedly gender-neutral areas that profoundly affect many women.”

Warren has always viewed social justice as distracting bullshit that keeps women down. I bet she’s never taken trans stuff seriously, but rather simply followed consultants’ advice and told trans activists what they wanted to hear. And so by refusing to lift her gaze from the financial industry, Warren overlooked the healthcare industry waltzing by in a pink bonnet. Or who knows – maybe she saw the monster and didn’t care.

The wonks I know are not going to risk anything for trans because it’s not their number one issue. Some get lucky and trans stuff doesn’t fall in their lap. Others compromise: they sign off on amicus briefs they think are dodgy, host a womxn’s lounge, help a colleague brainstorm evasive answers to questions about the sex binary, or reprimand paralegals for violating the office pronoun policy. They tell themselves they're doing too much good on other issues to throw it all away on something symbolic.

The stakes are about to rise for many wonks.

The Biden administration led the fight for trans rights alongside activists. Now that the federal government is changing hands, activists will ask liberal state governments to dance. Attorneys general could sue to block Trump's executive orders, for example, or intervene in lawsuits on healthcare regs that Trump refuses to defend. Will the wonks tell their politician bosses and revolutionary coworkers that gender identity lawsuits have no merit?

It’s OK to commit your entire career to one issue to the exclusion of all other righteous causes. But then don’t run for president. In fact, don’t apply to be a supervisor.

“We shall find that the God of Israel is among us, when ten of us shall be able to resist a thousand of our enemies; when He shall make us a praise and glory that men shall say of succeeding plantations, ‘may the Lord make it like that of New England.’ For we must consider that we shall be as a city upon a hill.”

John Winthrop, A Model of Christian Charity (1630)

This past June, two fascinating cases about “anti-trans” messages at public schools were decided by the federal First Circuit Court of Appeals. The pious court – which is based in Boston and covers Massachusetts, Maine, New Hampshire, Rhode Island, and Puerto Rico – endorsed censorship both times.

It’s no coincidence that two edgy “anti-trans speech” cases bubbled up in neighboring Massachusetts counties. The oldest, most frigidly progressive region of the country is pulsing with grassroots gender-critical protest.

This post is about freedom-hating local officials who use LGBTQ policies to take away the rights of students, teachers, and parents; the federal judges who let them; and the cranky yankees who are fighting back.

Where Are We?

I grew up in Rhode Island and practiced law in Massachusetts for five years. My neighbors bickered about whether cats should be allowed outside, not who to vote for in presidential elections – because there was only one point of view on that. Recently I met up with a childhood friend who’s now a Harvard-trained lawyer in the area. She said she doesn’t have any Republican friends. She’s an affable person, not closed off to dissenters – there just aren’t any in her circles. None.

It’s not just that most of these people are Democrats. It’s that there’s only one type of Democrat in New England: the kind who believes in recycling. The most northeasterly crust of America lacks the convivial transactionalism of NYC; the religious liberals you meet in the South and Midwest; and the tree-eating anarcho-witches on surfboards that keep the west coast unpredictable (OK, I don’t really understand what goes on out there). Boston’s moral code flows pure and unadulterated straight from the Ford Foundation.

And it’s ground zero for transing kids. The Gender Management Service (GeMS) at Boston Children’s Hospital was the first of its kind in the US. It opened in 2007, but its endocrinologists started treating “patients with a … broad range of pubertal stages” in 1998. In 2000, a trans-identified boy sued his school in nearby Brockton, Mass. for the right to wear dresses.

Even knowing all this about my homeland, I was still struck by the monolith I encountered as I researched this post. Apparently everyone there with a modicum of institutional power is staunchly, angrily supporting the trans agenda, from brahmin judges on the waterfront to public school vice principals down by the shore. The lead attorneys representing gender dissidents have to be flown in from distant lands.

And yet there are so many gender dissidents in eastern New England – whose population comprises about 3% of the US – that they have mounted five of the country’s most interesting legal challenges to genderfied schooling. They’ve also sponsored public events. The suburbs and towns north of Boston are represented in Congress by Seth Moulton, the Democratic House member who recently broke ranks with his party to question the wisdom of letting males play girls’ sports. I’m guessing he thought his constituents would approve (even as his staff revolted).

The plaintiffs in today’s lawsuits feel familiar to me – obstreperous yet nonthreatening types who argue with each other in windy village squares. None of them raise religious freedom claims, as their anti-gender counterparts in other regions tend to do, or express a problem with gender nonconformity or gay people. They’re just sick of lordly school administrators dictating nonsense.

LM v. Town of Middleborough (First Circuit, June 2024)

Nichols Middle School sits in a “fringe rural setting” not far from Plymouth Rock in Middleborough, Massachusetts. 36% of Nichols students are proficient at reading; 41% at math. By 2023, school officials perceived a crisis among certain youth. As a federal district court would later recount:

“[Superintendent Carolyn] Lyons is aware of several Nichols students, including ‘members of the LGBTQ+ community,’ having attempted to commit suicide or having had suicidal ideations … [Acting principal Heather] Tucker has also worked closely with students who have been hospitalized for attempted suicide or suicidal ideation or who have self-harmed ‘because of their gender identity.’”

To tackle the crisis, Nichols faculty attended three “LGBTQ+” trainings between January 2022 and 2023, and “promote[d] messages commonly associated with ‘LGBTQ Pride.’”

In March 2023, a seventh grade boy named Liam wore a T-shirt to Nichols that read, “There are only two genders.” (He later explained that he equated the word “gender” with “sex.”) Tucker ordered him to either go home or change the shirt. Liam spoke up about the censorship at the next school board meeting:

“I have been told that my shirt was targeting a protected class. Who is this protected class? Are their feelings more important than my rights? I don’t complain when I see ‘pride flags’ and ‘diversity posters’ hung throughout the school. Do you know why? Because others have a right to their beliefs just as I do. Not one person, staff, or student told me that they were bothered by what I was wearing. Actually, just the opposite. Several kids told me that they supported my actions and that they wanted one too.”

By May 2023, Liam had lawyered up. Amid raging protests and counter-protests just off campus, he wore a shirt to school that read, “There are CENSORED genders.” When accosted by the authorities, he agreed to change his shirt.

Liam says he wore the harmful T-shirts to protest the school’s curriculum, which taught its already-subpar pupils that boy and girl are feelings and the number of gender identities is “unlimited.” Nichols does not dispute his characterization of its lessons.

Liam sued the district for violating his First Amendment right to free speech. The Alliance Defending Freedom and Massachusetts Families Institute represent him. ADF is a nonprofit law firm that, in its words, “advances the God-given right to live and speak the Truth.” Liam’s ADF lawyers are based in Virginia and Georgia.

The federal District of Massachusetts denied Liam’s motion for a preliminary injunction. He appealed the denial to the First Circuit.

Legal Precedents

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Sound familiar? That’s the Supreme Court in Tinker v. Des Moines (1969). Citing the First Amendment of the Constitution, it upheld the right of public school students to wear armbands that signaled their opposition to America’s role in the Vietnam war.

As ADF emphasizes in its briefs, Vietnam was an incredibly fraught subject at the time of the protest. Many members of the community in Des Moines, Iowa knew young men who had died fighting there, and did not want to contemplate that their service had been futile or wrong. Nevertheless, the Court struck down the school policy:

“Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk; and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.”

The Supreme Court has chipped away at Tinker over the years, but it nevertheless reaffirmed in 2021 that “America’s public schools are the nurseries of democracy” – meaning they should allow a fair amount of debate and cacophony.

Everyone agrees that Tinker applies to LM v. Town of Middleborough. But Middleborough seizes on a caveat in Tinker:

“[C]onduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”

Is it an invasion of the rights of nonbinary students to politely inform them that their identity is made up? Does sharing this view materially disrupt classwork?

Norris

The First Circuit’s closest precedent might be the me-too era Norris (2020), in which a Maine girl posted a message on a school bathroom wall that one of her classmates – unnamed, but school officials understood it to refer to a particular boy – was a rapist. The school investigated and concluded (1) the boy had not assaulted anyone and (2) the note led to the boy being ostracized. The school sanctioned the girl. She sued. Ultimately the First Circuit found she couldn’t be punished because her message was protected free speech.

In theory schools can ban speech that might lead to bullying, but they need grounds for predicting that will happen. The First Circuit found this school’s claim dubious because few students had even seen the cryptic note.

Other Circuits

Federal courts throughout the country have decided Tinker-like cases that involve messages about “identity.” They point in different directions. In Zamecnik (2011), the 7th Circuit found students had a right to declare “be happy, not gay.” (ADF represented them, arguing in press releases that the censorship constituted anti-Christian discrimination.) But in Harper (2006), the Ninth Circuit nixed a shirt that read “Homosexuality is shameful.” (The decision was vacated on technical grounds.) Multiple courts have allowed schools to ban the confederate flag where racial conflict flared.

And in 2005, the Southern District of Ohio green-lit a shirt that read: “Homosexuality is a Sin; Islam is a Lie; Abortion is Murder.”

Passion of the Drone Killer

A three-judge panel of the First Circuit heard Liam’s appeal: David Barron (an Obama appointee), Rogieree Thompson (Obama), and Lara Montecalvo (Biden).

Barron’s nomination to the bench was controversial. He’d been a Harvard law professor for most of his career. But during a stint at the US Department of Justice, 2009-10, he drafted secret memos offering President Barack Obama a legal argument for killing an American overseas, Anwar Awlaki, by drone strike. The first memo, which guided Obama for months, appeared glib and sketchy – perhaps authorizing the error-prone CIA to nail any American abroad whom it suspected of plotting terrorist attacks. US forces killed Awlaki in 2011.

The New York Times editorial board described one of Barron’s murder memos as "a slapdash pastiche of legal theories—some based on obscure interpretations of British and Israeli law—that was clearly tailored to the desired result.”

Just a year or so prior to granting Obama a rationale to kill Americans, Barron believed the Constitution placed strict limits on executive war powers. Republican George W. Bush was president at the time.

In 2014, the Senate confirmed Barron 53-45 over the objections of the ACLU and Sen. Rand Paul (R-Ky.), among others. He became Chief Judge of the First Circuit in 2022 based on seniority. (Some judges on the circuit were appointed earlier but they hold “senior status” now.)

Barron dominated the LM v. Town of Middleborough oral argument, during which his demeanor fluctuated jarringly. With the ADF attorney, Barron sounded irritated and combative. When Middleborough’s attorney stood up for her turn, Barron struck a droll tone. It sounded like he was thinking out loud about the hardest points he’d have to address in his opinion, tossing them out in case she could help, and then shrugging each time she proved useless. (She essentially argued schools should have total discretion to ban speech.) Then for ADF’s rebuttal he was fired up again.

Addressing Liam’s attorney, Barron spouted cliches: the nonbinary kids’ “identity was being publicly debated”; there was a “suicide risk.” When Liam’s attorney pointed out that the school wasn’t so inclusive of his client, Barron interrupted and badgered him: “No one was saying his gender didn’t exist! … Was a core characteristic of his said not to exist?” (Amusingly, counsel for Middleborough had just said that “male is not a gender.”)

In June 2024, the court ruled against Liam. Barron drafted the opinion.

The ruling sidesteps Norris, the rape-allegation precedent, by finding Liam’s shirt targets “characteristics of personal identity.”

From there, Barron compares the matter to other circuits’ decisions. To distinguish it from Zamecnik (“be happy, not gay”), he relies on that court’s finding that the slogan would not “have even a slight tendency to … poison the educational atmosphere.” Really?! Though I agree with the pro-speech outcome of that case, I think it’s dishonest to say the T-shirt wouldn’t harsh the classroom’s vibe even slightly for gay students. But Barron blithely asserts that “there are only two genders” is a “more overtly demeaning message” than “be happy, not gay.”

Barron then enunciates a new test that he says is rooted in the other circuits’ jurisprudence. Schools may ban T-shirt messages if (citations omitted):

“(1) the expression is reasonably interpreted to demean one of those characteristics of personal identity, given the common understanding that such characteristics are ‘unalterable or otherwise deeply rooted’ and that demeaning them ‘strike[s] a person at the core of his being,’ and

(2) the demeaning message is reasonably forecasted to ‘poison the educational atmosphere’ due to its serious negative psychological impact on students with the demeaned characteristic and thereby lead to ‘symptoms of a sick school -- symptoms therefore of substantial disruption.’”

Barron is essentially beaming a “protected class” analysis from the 14th Amendment into the First Amendment. He doesn’t explicitly cite the 14th Amendment because (1) there’s no precedent for such a teleport and (2) gender identity is not a protected characteristic under the Supreme Court’s 14th Amendment jurisprudence.

Barron says this test fits within Tinker’s loophole for schools needing to prevent “material disruption.”

Applying his new test, Barron agrees with the District Court’s finding that the two-genders shirt demeans nonbinary students because it “may communicate that only two gender identities -- male and female -- are valid, and any others are invalid or nonexistent." If there are only two genders, then students “who do not identify as either male or female have no gender with which they may identify.”

Barron defers to Middleborough’s concern that the shirt would disrupt the learning environment because “it knew the serious nature of the struggles, including suicidal ideation, that some of those [transgender] students had experienced related to their treatment based on their gender identities by other students[.]”

This delegation of power to school officials is notable because the legal precedents – particularly Norris – got into the weeds to determine precisely what the nexus was between the speech and the predicted harms, and in some cases found the school’s forecast of disruption was not grounded firmly enough in fact. Barron engages in no such scrutiny of Middleborough and its suicide bogeyman.

Case of the Missing Facts

This ruling is on a motion for a preliminary injunction. The parties haven’t conducted discovery – and they don’t think it’s necessary. They’ve stated they don’t dispute any of each other’s factual claims.

So when Middleborough asserts that some of its students are contemplating suicide because they are nonbinary and their classmates don’t believe they are nonbinary, Liam doesn’t contest that. His argument is something like, “that’s not my problem, give me my rights.” Or as ADF put it in its First Circuit brief, “under Tinker, subjective psychological intrusions don’t count.”

Liam doesn’t assert that there are two sexes, only that he is entitled to say they are.

A ruling in Liam’s favor would bolster the First Amendment’s “F your feelings” principle. Valuable. But aiming for a broad ruling means the lawyers aren’t homing in on the gender indoctrination machine – its schoolhouse lies about suicide and how many sexes there are.

The reason kids think they are nonbinary, or that life is not worth living if people don’t respect their gender identity, could be because adults teach them that. Discovery might show Nichols is scapegoating Liam for a disruption that it created.

Liam can conduct discovery later. But he’s asking the Supreme Court to review the case now, in its fact-lite form. It’s risky. The three liberal justices recently showed themselves, in Skrmetti oral argument, to suffer from compassion derangement syndrome, and Justice Clarence Thomas has indicated he’s skeptical of Tinker. If just one more conservative justice has distaste for student protests or anxiety about harms to “trans kids” (Kavanaugh comes to mind), Liam could lose, setting a precedent for schools to control how kids talk about gender.

The Supreme Court should decide in the next few months whether to grant certiorari, meaning, hear the case. If it does, ADF will face a formidable adversary. Douglas Hallward-Driemeier of Ropes & Gray – a multinational law firm headquartered in Boston – has entered an appearance for Middleborough. Among his Supreme Court victories is Obergefell, the 2015 decision that legalized gay marriage nationwide.

I don’t know what Middleborough’s arrangement is with this superstar, but recall that “trans kids” are biglaw’s favorite repository of pro bono largesse.

Middleborough’s response to Liam’s petition for Supreme Court review is due January 21, 2025.

MacRae v. Mattos (1st Circuit, June 2024)

Kari MacRae was born in Plymouth County and wound up settling in Bourne, Mass., which is down the coast. A mother of four and grandmother of five, she earned her college degree in mid-life. In 2021 she ran unopposed for the local school board as a Republican. On election day she posted a video on Tik Tok under the username NanaMacof4. Transcript:

“... the reason I’m taking on this responsibility is to ensure that students … are not being taught critical race theory. That they’re not being taught that the country was built on racism. So they’re not being taught that they can choose whether or not they want to be a girl or a boy. …”

Around this time MacRae also re-posted, liked, or was tagged in six Tik Tok memes:

MacRae was elected. A few months later, in August 2021, she began a new job as a math/business teacher at Hanover High School, which is not in Bourne. A Bourne alum complained about her posts to the Bourne School Board, which led to her outing on September 1. Within weeks, the Boston Globe and Cape Cod Times published stories about the Republican grandma stalking Barnstable County. MacRae apologized for “anyone feeling offended” and said, “I now feel that I have let some down.”

Hanover fired her “in light of [her] social media posts would have a significant impact on student learning at HHS.” School officials had just completed an investigation in which they learned MacRae did not discuss politics in the classroom, no one in Hanover had complained about her, and she used students’ preferred pronouns.

MacRae retained Judicial Watch to represent her in suing Hanover Public Schools. JW is a conservative nonprofit that focuses on government accountability, for example by litigating public record requests. MacRae’s JW attorney is based in Washington, DC.

The Law

Public school teachers are government employees, which means they have some First Amendment protection against being fired for their speech. In the words of one of MacRae’s briefs, the government employee must show that:

“(1) she spoke as a citizen on a matter of public concern;

(2) … her interest in commenting upon those matters outweighed the government entity’s interests in the efficient performance of its public services; and

(3) … her protected speech was a substantial or motivating factor in the government entity’s adverse employment action.”

But MacRae was not a government employee when she memed. She argues that since she was a private citizen at that point, she was entitled to speak out without fear of future retaliation. The test I outlined above – known as Pickering – should not apply because she has nothing to prove.

But if Pickering does apply to MacRae’s speech, her argument goes, she should pass that test. The first and third prongs aren’t disputed. Only the second one is, because Hanover argues that her past speech could potentially cause a “disruption” at school. But it did not cause a disruption.

After the parties conducted discovery, the federal District of Massachusetts granted summary judgment to Hanover. MacRae appealed to the First Circuit.

The Judges

MacRae’s appeal was heard by a three-judge panel: Rogieree Thompson (Obama appointee), Gustavo Gelpi (Biden), and Bruce Selya (Reagan).

For years Thompson was a beloved state court judge in Rhode Island. When Obama took office she applied to serve on the federal District of RI bench. He nominated her instead to be the first black woman to sit on the First Circuit in 2010, and the Senate confirmed her 98-0.

In 2014, Thompson reviewed a trans-prisoner case, Kosilek. Serving on a five-judge en banc panel that split 3-2, she penned one of the dissents. In her view the male prisoner belonged in a women’s prison:

“The [lower] court … had reason to be skeptical of the [Department of Correction’s] adamant contention that Kosilek would cause inmate climate issues at [the women’s prison] due to the fact that [he] murdered [his] wife. Undoubtedly inmates find other inmates offensive for a plethora of reasons, such as, race, religion, gang affiliation, sexual orientation, or the crime committed. Prisons deal with these situations on a routine basis ...”

Thompson also sat on the LM v. Middleborough panel, where she chimed in, “what if his shirt said all transgender kids are retarded?”

Decision

Thompson authored the 3-0 decision upholding summary judgment for Hanover. It’s saucy. For example:

• “Positive that Defendants had unconstitutionally retaliated against her for exercising her First Amendment rights, Macrae took them to court”

• “MacRae did not take her termination on the chin.”

• “[MacRae] urges us to chuck the Supreme Court's nuanced Garcetti framework for claims brought by public employees out the window …”

• “In response, MacRae offers yet another comeback”

The opinion is also colloquial:

• “For those new to all this legal mumbo jumbo, qualified immunity is …”

• “Eagle-eyed readers following along closely will note …”

• “Summary-judgment decisions get de novo review on appeal, which, to speak plainly, just means that we give the arguments and the issues a fresh look …”

Apparently Thompson is writing for the public. Normally I’d find that fantastic, but her mocking tone toward MacRae – a civic-minded grandmother who seems genuinely concerned with respecting all kids – casts a pall over her populist project.

After dispatching with the argument that pre-employment speech should be judged differently than while-employed speech (MacRae’s attorney lacked satisfying answers to the judges’ questions on that at oral argument), Thompson applies the Pickering balancing test.

Political speech should receive the greatest protection under Pickering. Thompson acknowledges that MacRae’s speech was political but finds:

“MacRae’s First Amendment interest weighs less than it normally would because some of her memes comment upon such hot-button political issues in a mocking, derogatory, and disparaging manner. See Curran … (‘Speech done in a vulgar, insulting, and defiant manner is entitled to less weight in the Pickering balancing.’) … For example, the meme about Dr. Rachel Levine was clearly insulting and disparaging …”

Curran is not on point. There, an unhinged sheriff went off on his boss in a violent public missive, referring to him as Hitler and encouraging his colleagues to revolt against him. This speech wasn’t political; it would be incitement if it weren’t so obviously crazy; and it was “defiant” toward the speaker’s boss, which is key to the analysis of whether it was OK for his boss to fire him. By contrast, Rachel Levine had nothing to do with the Hanover High workplace. Thompson is stretching to argue that the Constitution prefers dry, somber exegeses over funny memes. Did I mention New England is home of the puritans?

(That worker-criticizing-boss scenario is typical of Pickering close-calls. You don’t see as many lawsuits by public workers who were fired for expressing political opinions because most government agencies try not to be fascist.)

Thompson quotes a chilling line from the Supreme Court:

“Government employers … need a significant degree of control over their employees’ words and actions[.]”

In that case, the Supreme Court was addressing on-the-job speech by a prosecutor about one of his cases that frustrated his office’s goal of winning a trial. Again – very different from MacRae. I hope the Supremes wouldn’t extend their “significant degree of control” logic to cover political opinions expressed outside of work.

We might find out. MacRae appealed her First Circuit loss to the Supreme Court. It hasn’t decided yet whether to hear the case.

In the Pipeline

Several other trans-kid cases are winding their way through the federal courts in New England.

A small-town school barred three parents from wearing “XX” armbands to their daughters’ soccer game this fall. It was a protest of the league’s allowing a trans-identified boy to compete. The parents sued, represented by the DC-based Institute for Free Speech. At a recent hearing before the District of New Hampshire, the judge appeared skeptical of the parents. Any appeal would be heard by the First Circuit.

The boy in question was Parker Tirrell. He had recently sued to challenge a New Hampshire law that segregates sports by sex. The District of NH (different judge from the armband case) granted him a preliminary injunction. The ACLU of NH and the biglaw firm Goodwin Procter represented him.

In a “secret school transition” lawsuit, parents argue that a middle school in Ludlow (the outskirts of bucolic Translandia in western Massachusetts) socially transitioned their kids without telling them, in violation of their constitutional right to direct the upbringing of their children. (Elsewhere teachers have argued that secret-transition policies infringe on their free speech rights.) They’re represented by the Georgia-based Child & Parental Rights Campaign, a nonprofit firm that was founded to defend families against gender encroachment. The District of Massachusetts dismissed the lawsuit; the parents appealed. The First Circuit heard oral argument in September 2023 – the panel included Thompson – and has not yet ruled. This time lapse is irregular.

In August, Nicole Solas sued the Town of South Kingstown and others in the District of Rhode Island. She’d filed a public records request to learn, among other things, why the teachers at her kid’s school, Peacedale Elementary, refused to refer to students as boys and girls. She alleges the SK school committee colluded with the teachers’ union in suing her to block the release of the records – an attack on her First Amendment right to petition the government. (Disclosure: Peacedale Elementary retaliated against me for petitioning against a mean librarian in 1995.) Solas is represented by the California-based Dhillon Law Group, whose other clients include the detransitioner Chloe Cole and incarcerated women suing California for locking them up with men. Her lawyer reports an address in New Jersey.

This is not Solas’s only lawsuit against SK. She already won one related to public records. Apparently when you drop an energetic conservative parent into a small-town progressive school district, the grounds for litigation are as unlimited as gender itself.

Resolved Amicably

Those court battles aren’t the only anti-gender civic activity in New England.

In October, the Tewksbury Public Library (in Moulton’s district north of Boston) scheduled but then cancelled a web presentation on sex differences by a Nebraska expert on sport science. Citizens publicly spoke out and persuaded the library to hold the event after all.

In November, MIT and Democrats for an Informed Approach to Gender hosted a talk on detransition in Cambridge. It had previously been planned but cancelled by the young speaker’s school, the nearby Berklee College of Music. About 30-40 people attended, including MIT students who objected to the message. Discussion ran for three hours.

This year a local paper in Northampton, Mass. (the capital of Translandia) published a gender-critical op-ed and letters in support of it.

No Education without Representation

Most censorship cases involve unpopular messages. In a democratic society, authorities are loath to condemn popular ideas because doing so gets them kicked out of a job, or at least made fun of.

But in New England, school officials and judges keep trying to stamp out views on gender that appear to be dominant, at least nationally. These ideas align with the (conservative) political party that runs all three branches of the federal government and a (liberal) feminist and LGB movement. Last year only 26% of Americans supported males in girls’ sports, and the trajectory was headed down.

Perhaps gender-critical views are less popular in the GeMS blast zone. Maybe most yankees support the LGBTQ agenda. Just like they supported King George in the 1760s.

A New England trait that drove me crazy when I lived there was regional chauvinism. Massachusetts legal aid lawyers routinely describe their programs as national leaders (being a national leader is not actually a thing in that industry). When I told a relative about the 2 Genders oral argument she replied, “it’s scary that this is happening in Boston – not just some little court in Appalachia.” (The City on a Hill is smaller than Nashville.) Another relative has insisted to me that Boston has great weather.

It’s likely that the LGBTQ allies at the First Circuit, Ropes & Gray, and sundry school boards view themselves as guardians of progressive New England virtue. They’re perched in their watchtowers scanning for outside invaders. One if by land, two if by evangelical Christianity, three if by white nationalism …

A restive crowd of natives is jostling behind them in thirty-year old LL Bean coats. “Hey! We’re right here!”

They’re not carrying pitchforks. They just want to talk.

“Tennessee’s brief has literally nothing to say about L.W., John Doe, Ryan Roe, their families, and the countless other families with transgender adolescents whose lives Tennessee has ripped apart and whose critically needed health care the State has banned.”

–ACLU, 2024 (final brief in US v. Skrmetti)

American lawsuits aren’t about ideas. They’re about people.

You might think Skrmetti, the case that’s scheduled for oral argument before the Supreme Court on Wednesday, is about discrimination or pediatric gender medicine (PGM). But it’s actually about three kids who want to be the opposite sex, their eager moms, and a gynecologist whose YouTube channel is called Crotch Talk.

These plaintiffs are represented by the voluble trans activist Chase Strangio, who has joined forces with her friend Elizabeth Prelogar, the US Solicitor General, to battle the Attorney General of Tennessee, Jonathan Skrmetti, over whether his state’s ban on PGM violates the US Constitution.

In this post I’ll show you who Skrmetti is about. Then I’ll introduce the Supreme Court justices who will soon decide one of the legal issues in Skrmetti, before kicking the case back down to lower court judges to figure out the rest. Finally I’ll explain why I think the people of Skrmetti matter more to the future of trans litigation than any legal argument. (But if you want to learn the legal arguments anyway, I’ll drop some links at the bottom.)

Tennessee’s lawyers did not discuss the plaintiffs in their brief. Maybe they think it’s unseemly to publicly analyze children. I feel no compunction about doing that. You need to understand the kids in order to understand the case.

The legal documents I cite can be found here. Quotes of the plaintiffs come from written statements they filed with the trial court unless otherwise noted.

The Plaintiffs

The plaintiffs are represented by the ACLU, Lambda Legal, the ACLU of Tennessee, and biglaw firm Akin Gump. These attorneys had the resources and experience to scour Nashville, Knoxville, Memphis and Chattanooga for ideal faces to represent the PGM cause. They chose…

The Gynecologist

Susan Lacy received her MD from Johns Hopkins University, one of America’s premier med schools. In 2021 a GoFundMe was launched to support her struggling Memphis gynecology practice: “Help Dr. Susan Lacy provide Southern Trans Care.” In her video appeal she noted that her home had “very little water.” Maybe a natural disaster had just struck – she didn’t explain.

Lacy’s practice provides “comprehensive waxing services” and hormones for gender transition. Treating nonbinary patients with hormones, she says on her YouTube channel, is “sort of a matter of figuring out where you want to land.” That channel is called Crotch Talk. By April 2023 she had prescribed cross-sex hormones to three dozen minors.

The Boy

LW is autistic, according to his mother, and did not like to be hugged as a child. In his own words, when he was 10 he “did not like changing clothes in front of anyone[.]” He also struggled to relate to his peers:

“My guy friends at school were talking about wanting to grow mustaches and beards. I remember thinking that was something I did not want to happen to me. I knew that I was different from those friends, but I did not know what to do with that feeling.”

When LW was about 11, he had a revelation:

“In 2019, when my cousin told my family that she is transgender, I finally understood what ‘transgender’ meant. My cousin and I are very close, and when she started talking to me about the feelings she was having and her coming out process, I began to realize that she was describing the feelings I had been having too.”

LW came out to his mother on Thanksgiving during 7th grade, commenced therapy within weeks, had his puberty blocked the next summer, and started on estrogen at age 14.5:

“I don’t feel as scared or worried about my body changing in ways that would harm me because I know the medication is helping to stop those changes right now.”

LW’s mother is pleased:

“I noticed a huge change at her fourteenth birthday party in February of 2022, the first party we threw for her after she had come out. My daughter was the belle of the ball and was very outgoing and had a huge group of friends attend.”

LW is “terrified of being misgendered” but otherwise “thriving.” Also:

“If my care was taken away, I know that I would not be able to think about anything else in my life except when I could get my medication again.”

The Girls

The girl plaintiffs were both classic tomboys as children.

Ryan hated appearing female and in fifth grade “considered going mute to protect myself from the pain and anxiety that my voice caused.” Getting her period that year “felt awful.” In middle school her voice “caused me serious distress, and I stopped talking in public a lot of the time. I was a good student, but I never wanted to participate in class[.]”

After Ryan told her mother she was a boy, in fifth grade, her mother tried to learn more:

“I started to research everything I could about what it meant to be transgender. I googled it, ordered books on Amazon, and joined Facebook support groups for parents of transgender children.”

At age 13, a gender clinic prescribed Ryan meds to stop her period. She had to wait for T until age 14. Getting the shot made her feel “relief and joy.” She now participates in class and likes looking in the mirror. “I feel stronger – physically, mentally and emotionally. I feel so happy with myself and that makes me feel like I can do and be more.” (T, also known as steroids, causes euphoria.) She fears losing access to the drug:

“If I lost my testosterone and I couldn’t get it back, I really don’t know how I would survive. It would feel impossible.”

The other girl-plaintiff, John, told her parents that she wished she were a boy from a young age. At the end of first grade her parents sat her down and asked, in her mother’s recollection:

“‘What if you could be John, and just be a boy all the time?’ His eyes got as big as saucers—I could see he hadn’t even realized that it was a possibility and that he was imagining that kind of happiness in his life. It was as if a light came on for him.”

From then on, John’s parents pretended she was a boy. At age 9 John’s mother read her a book about puberty:

“[John] was absolutely mortified at the notion of his body undergoing the changes of a typical female puberty, and it became clear that we needed to explore the possibility of medical treatment to prevent that.”

John was put on Lupron (a chemical castration drug administered to sex offenders) at age 10.

The Plaintiffs’ Lawyers

“Counsel of record” for these kids, parents, and Lacy is the ACLU’s Chase Strangio. Activists are heralding her as the first openly-transgender lawyer to argue before the Supreme Court. Last month her colleagues reportedly thought about benching her because her behavior in preparing for argument was so immature. More recent media coverage suggests the ACLU still backs Strangio.

Strangio is a loose cannon. Recently she implied that the ACLU advanced Skrmetti to Supreme attention because it was at an early stage. Unlike other PGM lawsuits, it hasn’t gone to trial yet and its record lacks evidence. In other words, she seemed to acknowledge that the evidence about PGM is not on her side. (The ACLU might also be racing to the Supreme Court because it does not want rival trans-rights lawyers to get there first.)

The Defendants

Tennessee banned PGM in early 2023 following reports by Matt Walsh that Vanderbilt University Medical Center, in Nashville, was chemically castrating youth and performing gender surgeries on them. Video showed a VUMC clinician calling FTM genital surgeries “huge money-makers.”

Vanderbilt was the state’s major provider of PGM. One PGM doctor appears in media reports and all the plaintiffs’ declarations: VUMC’s Cassandra Brady, a pediatrician.

To block the law, the plaintiffs sued various state officials (as legally required), including Attorney General Jonathan Skrmetti, who is responsible for handling the officials’ defense. He’d been in the job about seven months.

Tennessee’s law regarding AGs is unique. Unlike most state attorneys general, Skrmetti is not a politician – he was appointed to the role by the state supreme court.

Red states like Tennessee tend to have leaner AG offices than blue states, and rely more on outside counsel. Skrmetti retained two firms to co-counsel with his office to defend the PGM ban: the elite conservative boutique Consovoy McCarthy at $400/hour, and Lawfair at a flat $10,000/month. Lawfair was founded by Adam Mortara, a conservative Supreme Court litigator. The only other lawyer associated with it is Christopher Roach, an unknown who was caught making dreadfully racist anonymous posts. It appears he’s now out.

Skrmetti has overseen a budget expansion and ramped up his office’s litigation capacity. Tennessee Democrats argue Skrmetti is wasting funds by fighting with the Biden administration and the liberal city of Nashville.

Skrmetti investigated VUMC’s PGM practice (outcome unclear; maybe ongoing). He did not join the multistate probe into the American Academy of Pediatrics before it issued its demand letter in September.

The Intervenor

The United States of America moved to intervene in Skrmetti within a week of its filing. In practical terms, that means the Biden administration wanted to step into the case and fight on the side of the ACLU.

The USA’s law firm is the US Department of Justice. As required for intervention, US Attorney General Merrick Garland (who leads DOJ) certified that the case had “general public importance.” The court granted the motion to intervene.

The USA is an active player in Skrmetti. It’s the reason the Supreme Court is hearing the case — the justices accepted its petition for review and rejected the plaintiffs’. That said, DOJ and the ACLU appear to be collaborating. DOJ requested that its half-hour of argument time be split with the ACLU and the Supremes granted the request.

The Alabama Attorney General has suggested DOJ strategically petitioned the Supreme Court in Skrmetti to freeze the Alabama lawsuit in which WPATH’s internal emails were being mined and revealed to the public.

Elizabeth Prelogar

On Wednesday, the DOJ’s top courtroom lawyer (and fourth-ranking official) will argue against the PGM ban: US Solicitor General Elizabeth Prelogar. As is typical of SGs, she has a flawless resume and everyone says she’s the best oral advocate ever. Less typically, she competed in beauty pageants throughout her youth and was crowned Miss Idaho in 2004. She once said of her unlikely trajectory:

“If you want to look at a through line here, I like to go in front of judges.”

That said, she’s known for fiery exchanges with arch-conservative Justice Samuel Alito.

As a Cooley (biglaw) partner in 2020, Prelogar teamed with Strangio to challenge Idaho’s law segregating school sports by sex.

When Prelogar found out Biden would nominate her to be SG, she called Strangio.

Merrick Garland

Considering the “general public importance” of PGM litigation (and all the media attention it receives), I assume Garland is looped in on the action.

Garland is also almost certainly aware of the prosecution of Eithan Haim in the Southern District of Texas – an arm of DOJ under Garland’s control. Haim is the young surgeon who exposed Texas Children’s Hospital (TCH) for practicing PGM after claiming publicly that it did not. DOJ’s conduct toward him has been shockingly unjust. It accuses him of violating HIPAA, a patient privacy statute, by looking at records he had lawful access to – a ridiculous charge.

The first prosecutor on the case, Tina Ansari, threatened Haim before she knew basic facts about the file; ignored evidence in her possession that exonerated him and sought an indictment anyway (she later removed the false charge); failed to pay bar dues and then practiced with a suspended law license; weirdly referred to TCH as Haim’s victim; and filed slipshod documents that typo’d the statute Haim allegedly violated. Ansari withdrew from the case only after Haim’s counsel exposed her family’s financial ties to TCH.

Garland’s DOJ is now seeking a gag order against Haim because his tweets about the case were liable to cause “bullying.”

Why hasn’t Garland kiboshed this political prosecution?

Why has Garland let his staff run wild on PGM litigation?

Garland’s pedigree is extraordinary: Harvard, Harvard Law, Supreme Court clerkship for liberal icon William Brennan, prosecutor of 90s supervillains like the Unabomber and Tim McVeigh at DOJ, appointed to the DC Circuit Court of Appeals by President Bill Clinton, nominated to the Supreme Court by President Barack Obama (blocked by the Senate as Republicans held out for Obama’s term to end), appointed to lead DOJ by President Joe Biden.

The ruling class cherishes Garland. This suggests he may not be a rebel. Plus, Garland probably has a strong relationship with Prelogar, who clerked for him when he served on the DC Circuit. So how could he say no to “transgender rights”?

When Donald Trump takes office in January he’ll appoint a new AG. That won’t affect Skrmetti. Once it’s argued on December 4, the lawyers’ work is done.

The Deciders

The Supreme Court’s approach to trans issues has been slothlike, as though it is doing as little as possible to conserve energy.

The Fourth Circuit declared in 2020 that trans people, vaguely defined, are a protected class – an extreme threat to the legal understanding of sex in the five states covered. The Supremes declined to hear an appeal.

This year, the justices have reviewed trans-related cases while only discussing their technical aspects. (Poe v Labrador, Dept. of Education v. Louisiana.)

In the one decision they issued that was squarely about trans issues – Bostock in 2020, about employment discrimination – Justice Neil Gorsuch’s controlling opinion avoided the key phrase “gender identity,” dubiously declared “Few facts are needed to appreciate the legal question we face,” and insisted his logic did not apply to any other contexts, even ones that were obviously implicated, like employee bathroom use. It answered almost zero questions about what trans meant under law.

Skrmetti is underdeveloped. The parties haven’t conducted discovery or cross-examination yet. By plucking this early-stage PGM lawsuit instead of waiting for a post-trial appeal from another state’s litigation, I’m afraid the Supreme Court is trying to make another decision based on “few facts.”

It’s actually possible to reach a correct decision on PGM without grasping all the facts. You don’t need to know, for example, why the regret rate studies are unreliable. But if you’re going the “few facts” route then it’s even more important to understand the ACLU’s magic trick. The briefs that expose the foundational trickery of gender medicine were submitted by TERF amici: WDI International and WoLF. Will the justices read them?

None of the six conservatives are known to engage with feminism, and the Court’s three liberals appear to be basic Dems. When Justice Ketanji Brown Jackson was asked to define “woman” at her 2022 confirmation hearings, she said she couldn’t because “I’m not a biologist.” Trans intellectuals probably laughed at that answer since they think sex is a construct and would never consult a biologist, but you get the idea.

The justices are also unlikely to learn about the plaintiffs as people. The parties’ briefs don’t mention the boy’s autism or older trans cousin, or anything about anyone’s sexual orientation. The ACLU paints its two clients on cross-sex hormones with the same brush: they are both “thriving” and “outgoing.”

When Will America Meet These People?

Most commentators predict the Court will rule for Tennessee. I agree, but I fear they will do so in a way that frustrates the movement to expose gender fraud.

The justices could rule, for example, that laws relating to “transgender people” are subject to rational basis review because they are not a protected class. Sounds good. But if they discuss gender identity in the course of reaching that conclusion – as they should, since all the Skrmetti parties agree it’s part of the definition of a trans person – they will entrench the concept. Practically any description of “gender identity” will aid the ACLU in its quest to make it seem real, as opposed to what it actually is in its lawsuits, a rhetorical device that turns boys into girls (the kid is a “girl” thanks to a “female gender identity”). How can a lawyer argue gender identity is a meaningless term if the Supreme Court has declared that everyone has one?

I’ve come to believe the legal theories in Skrmetti aren’t that important. First, wording and definitions matter more. Second, if the Supremes understand what’s really going on with PGM, it will be game over. They won’t rule for Dr. Crotch Talk just because her legal argument is clever. And third, if they don’t figure out what’s going on, and issue a funky decision in 2025, I still think we can defeat the gender doctors on the ground. The courts will eventually catch up.

America can get by with some busted Constitutional doctrine for a few years. The most important thing is not that five of nine justices figure out the gender grift, but that a majority of people in every city and town do.

Americans will sort out the truth about trans thanks to government investigations, medical malpractice lawsuits, media exposes, conversations between friends, and activism by detransitioners. They will sort out the truth when they realize that gender doctors are seedy; that parents are asking their 9-year old daughters whether they’d like to avoid menstruating; that esteemed leaders like Merrick Garland are not exercising independent judgment.

Americans will figure out the truth about gender medicine when they get to know the people who are fighting for it. That won’t happen inside the Supreme Court on December 4.

Unless Chase Strangio brings her full self to work that day.

Learn about the legal arguments in Skrmetti

• X Space hosted by DIAG. Panelists are Elspeth Cypher (retired appellate court judge), Kara Dansky, and me.

• My discussion with LGB Alliance.

  Typo fixed and link changed after publication.

  Thanks for reading Bad Facts! Subscribe because it’s gradually turning into a TERF tabloid.

Q. So what would – what would you call a biological male living as a female?

A. A man.

Deposition of Rhonda Fleming (2024)

My X account is not popular. But last week I attracted thousands of likes by screenshotting, of all things, a paragraph of a Department of Justice brief. In the paragraph, DOJ disapprovingly quotes Rhonda Fleming, a woman suing her prison warden (DOJ’s client) for forcing her to bunk with trans-identified men.

The next day I tacked on a thread of quotes from Fleming’s deposition in that case, in which she outwitted a priggish DOJ attorney. For example:

Q. You’re – you’re aware that there is surgery to change gender. Right?

A. There’s no such thing. They can cut their genitals off, but it doesn’t change their biological makeup.

I’d actually written about Fleming before, in August 2023. At that point it looked like she was proceeding in her lawsuit pro se. I used her as an example to illustrate the folly of biglaw attorneys representing gender doctors pro bono instead of needy clients:

“Biglaw attorneys: this is real civil rights litigation. Take Rhonda Fleming’s case pro bono.”

Little did I know that earlier in 2023, Jeff Bristol had stepped up to represent Fleming pro bono. He’s a Florida lawyer who runs a commercial litigation firm with a partner, Paul Parrish, based in Tampa. With the aid of another area attorney, his friend Diego Pestana, he’s developed legal arguments, conducted discovery, defeated the government’s motion for summary judgment, and set the case up for trial in January 2025 in Tallahassee.

Fleming argues that the Bureau of Prison’s policy of housing trans-identified males in women’s prisons violates her constitutional right to “bodily privacy.” She wants her male bunkmates to be housed together in their own trans-only unit. Bristol believes this will be America’s first trial on the question of whether housing trans-identified men in women’s prisons violates the women’s rights.

I interviewed Bristol last week and reviewed some of the public court filings. In this post I’ll introduce you to Fleming and Bristol, explain the legal argument, and project what all this means for the future of litigation against irrational trans policies. 

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But first, we check in with an old friend.

Chase Strangio Strikes Again

Why aren’t trans inmates already housed in their own units?

I did a deep dive into US men-in-women’s-prison rules in March. Implementing the Prison Rape Elimination Act (PREA), these 2012 regulations provide for a modified self-ID system in which BOP makes the ultimate decision about where trans-identified men should be placed, and the inmates do not need to have received surgery.

The PREA regulations bar BOP from establishing separate housing for transgender inmates except “in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates.” It’s an odd caveat that sounds like it reflects activist input – they’re the ones who file lawsuits that lead to settlements and judgments.

One of the activist lawyers who advised DOJ on the PREA regulations was Chase Strangio, then a fellow at the Sylvia Rivera Law Project in NYC (she’s now a notorious ACLU bigwig). In 2020 she reflected on the experience:

“‘We asked [trans] people in prison what they needed, and they all said that they wanted a trans unit,’ Strangio said. But the lawyers in the working group, including Strangio, believed that L.G.B.T. units were stigmatizing, and only served to perpetuate the prison system. They advised that inmates’ housing should not be determined solely on the basis of sexuality or gender identity. The D.O.J. accepted the recommendations, and a number of units were shut down. Strangio now regrets the outcome. ‘We acted as though the real stakeholders were the law professors,’ [she] said.”

I’ve written about how Strangio deceives judges. I wonder if she told DOJ that the trans inmates whose interests she purported to represent did not want the solution she was recommending.

The Lawsuits of Rhonda Fleming

This is not Rhonda Fleming’s only showdown with the BOP. She’s currently litigating an asbestos claim against the prison system. Bristol notes that she’s represented by prestigious pro bono counsel in that action – a sign that her claim is meritorious and important. (But take that with a grain of salt because pro bono lawyers at multiple prestigious firms are now representing boys who want to play sports against girls.)

Fleming led fellow inmates in testifying against Federal Corrections Institute (FCI) Dublin, in California, which was known as a “rape club” because guards routinely abused the women. According to local media this year, “Fleming has been a longtime vocal critic of FCI Dublin and has helped many incarcerated women file grievances and legal briefs during her time there.” Her activism seems to have been key to securing relief from a federal court, including the appointment of a special master to oversee reforms at the prison. It’s now closed.

Fleming was convicted in 2009, at age 43, of Medicare fraud and related crimes. Her husband died in 2013. She has a strong faith. According to her 2024 deposition:

“I'm a Messianic Jew, which is aka a Christian. I receive Jesus Christ. I love the Lord. I respect the Lord. I became close to God. I, I dedicated myself to the Lord March 18th of 20 -- 2005, when I self-surrendered on this charge.”

Fleming’s opposition to BOP’s transgender policy is rooted in her faith:

Q. How does your religious belief play into your view of transgenderism?

A. My faith tells me I'm not supposed to be naked in front of any man that I'm not married to.

Fleming bears no ill will toward trans people:

“I like Bruce Jenner or Caitlin Jenner, whatever she's going on by now. Caitlin or Bruce Jenner was one of my heroes as a child. I have absolutely nothing against this person. I don't want to be in a bathroom with Bruce Jenner.”

BOP has transferred Fleming between facilities incessantly, as Amie Ichikawa points out. Bristol echoes Ichikawa’s concern that it’s retaliation for her rabble-rousing. Fleming reports that she has been forced to live among males in extremely low-privacy settings (more on that in a minute) in six prisons.

Fleming’s 2024 deposition transcript is a tour de force. For example, she refuses to agree to any definition of “transgender” because she thinks the concept is made up. This forces the DOJ attorney to abandon the term “transgender women” and call the male inmates “biological males.” X users loved it:

Fleming sometimes slips and refers to a man as “she” because she’s used to submitting to BOP’s coerced-pronouns regime. She then corrects herself. 

Fleming explained what it’s like to be incarcerated with men to KPSS in 2021:

“I have personally experienced sexual harassment, threats of assault after I filed a lawsuit, and physical intimidation by male inmates in the prison. Once a woman makes it clear that she is not interested in befriending or hanging out with these men, they become petty, like a little boy that is rejected in grade school. It is a frightening experience because these men are not petite, effeminate males, but large, strapping, aggressive, criminal-minded men, violent inmates. …

“Our ability to become better people and contribute to our communities has been stifled by intimidation by male inmates and prison officials’ attempts to indoctrinate us into believing that these male inmates are women.”

(Fleming’s depiction of trans-identified male inmates clashes with Strangio’s recollection that these men preferred a wing of their own. I suspect that’s because the population of “transgender women” changed drastically – and grew – once BOP provided a giant incentive for men to identify as trans without imposing a surgery requirement.)

Fleming has been fighting the issue of men in women’s prisons for many years. In 2016 she sued the BOP alongside other women who were incarcerated at Federal Medical Center, Carswell, near Fort Worth. The Alliance Defending Freedom (ADF) began representing them, then stopped “actively litigating” in 2019, citing its clients having been released from prison and the fact that the Supreme Court’s pending decision in Bostock might impact the landscape. Also, it seems the lead counsel had retired from ADF. 

Fleming, who had not been released, continued litigating pro se. She had long wanted ADF off the case because she thought the organization was too cozy with the Trump DOJ, which was not doing enough to get trans-identified men out of women’s prisons. (She noted that she supported Trump personally.) She seemed to accuse ADF of putting another agenda above representing its clients’ wishes — a situation that would parallel how Strangio and her comrades behaved with the Obama DOJ. (I have no idea what was actually happening in the Fleming/ADF instance.)

The Dallas Morning News reported that a formerly ADF-affiliated lawyer named Lisa Biron was “represent[ing]” Fleming’s co-plaintiffs. That’s not possible because Biron had by then been disbarred and locked up for filming her 14-year old daughter having sex with men. I guess she was acting as a jailhouse lawyer. Fleming was upset by Biron’s involvement in her case, calling her a “child molester.”

Anyway, that litigation ended. Fleming sued again in 2021. Some of her claims were dismissed, but one regarding “bodily privacy” moved forward in the federal Northern District of Florida. That’s the case she’s litigating now.

Meet the Lawyer

Jeff Bristol is a veteran of the Army and Navy who served in Afghanistan, then earned a PhD in anthropology and later a JD from the University of Michigan (a top-10 law school). He began his legal career as a public defender. Now he practices commercial litigation at a Tampa firm and takes on pro bono cases that he has “strong feelings about.”

As a member of the Northern District of Florida bar, Bristol receives email blasts about litigants who are seeking pro bono counsel. Fleming’s case landed in his inbox around March 2023.

Bristol had sued the Florida prison system before, but he’s new to suing the federal BOP and had not previously been involved in activism related to gender. After taking on Fleming’s case he assisted in drafting amicus briefs for Stephen Cranney, a sociologist and demographer who argues in favor of sex-segregated locker rooms in legal challenges to the Biden administration’s Title IX changes. He’s also interviewed three or four other female inmates who were concerned with the transgender housing policy. 

While Bristol doesn’t “like labels very much,” he acknowledges that “other people would certainly label me as conservative.” The fact that irrational transgender policies have brought together organizations like the feminist Women’s Liberation Front (WoLF) and conservative ADF is, in Bristol’s opinion, “the silver lining of the whole situation” because “it forces people to see … they’re not as dissimilar as they might think they are.”

Bristol empathizes with the “everydayness” of the problems caused by mixed-sex prisons:

“There’s a tendency to want to sensationalize it ... However, there’s an everydayness to it that makes it really bad. … An example Rhonda has given … In the prisons, women used to be allowed knitting needles … Well, the level of violence in these prisons has gone up with the introduction of men. So now they can’t have knitting needles. … The social environment that the women create in a prison is so radically different from the social environment that men create in their prisons. And it’s so different that when you introduce even a small number of the other into the one, then it has these weird catastrophic effects that … really show how different men and women are.”

The Moldy Shower Curtain Argument

The case presents one question for trial: Is the BOP warden, Erica Strong, forcing Fleming to expose her naked body to men? 

If so, Strong is violating Fleming’s constitutional right to “bodily privacy.” This right is not explicitly stated in the US Constitution, and not even neatly tethered to a particular provision in it, but courts in the 11th Circuit (which covers Florida) and most other circuits have recognized it, according to Bristol.

That one simple question requires the court to determine exactly how “flimsy” the shower curtains are, how large the gaps are in the toilet-stall coverings, and what a man is.

The matter of curtains, flaps, and stall coverings is complex. Fleming described the scene at Tallahassee FCI in her deposition:

“[P]eople just left the shower curtains open because they didn't want to touch the mold or mildew that are on -- that's on the shower curtains. They didn't want their body to come in contact with it.”

Another problem, this time at Carswell:

“[T]hese men enter the bathroom trying to have conversation with you or just talking to you through the door. And it's an uncomfortable feeling for a woman to be using the bathroom in an area with no cameras that is secluded, maybe a two or three stall bathroom, and a male is in the bathroom with you, and you're trying to use the bathroom. Showering was the same thing at Carswell. It was just a day-to-day struggle with their aggressiveness, their soliciting of females for sex -- for sex in the prison, and just outright aggressive behavior. We were tremendously afraid.”

Strong doesn’t believe that Fleming has suffered a “concrete and particularized injury” worthy of relief:

“[Fleming’s] allegations of emotional harm are more akin to a ‘general disagreement’ that the Eleventh Circuit has found insufficient to create standing [to sue].”

As to whether transgender women are women, it doesn’t appear Strong has tried to establish that. She might not try. Even pro-trans appellate courts tend to sidestep the question of what sex transgender people belong to. There may not be any precedent to cite for the proposition that some men are women. Precedent or no, it is a bit transphobic for Strong not to make the argument.

Strong refers to trans-identified men in her summary judgment motion alternately as “biological males,” “natal males,” “transgender females,” and “transgender women.”

Defense

Strong argues that BOP’s transgender housing policy is reasonable under Supreme Court precedent related to prison rules. Relevant factors include whether there’s a valid nexus between the policy and the government’s interest it supposedly advances, the impact accommodating Fleming’s rights would have on guards and other inmates, and whether BOP had other ready alternatives to the policy.

Testifying to much of this at trial will be Alix McLearen, who is Special Assistant to the Director’s Office at BOP and worked on the Transgender Offender Manual. McLearen has argued in this litigation that housing men in women’s prisons “serves to maintain the safety and security of BOP facilities.”

So far McLearen has not made the methodology behind the Manual look very impressive. Bristol got Strong to admit that “BOP did not give any consideration to biological females’ right to bodily privacy when BOP considered, adopted, and implemented the Transgender Policy[.]” 

Relief

Fleming wants Strong to create separate housing for trans-identified inmates. Strong argues that the PREA regulations bar her from doing so. As I discussed above, those regs have a caveat for legal settlements and judgments. But Strong also indicates that she wants to keep the men in women’s prisons for their (the men’s) safety. Citing one particular man, she argues:

“[Fleming] would have ET, a transitioned, post-operative transgender woman, housed in a male facility despite the obvious safety risks of such a placement (or alternatively, ‘in their own prison’).”

Fleming specifically asks the court to enjoin the Transgender Offender Manual, which is a document that BOP develops subject to the PREA regulations. 

If the judge finds that Fleming’s rights were violated, I can imagine a range of possible orders – from upgraded shower curtains to segregation of trans-identified males into their own wing or an injunction against PREA’s transgender housing regulations.

The judge ruled out the possibility of damages for Fleming early in the litigation.

In this Courthouse We Believe Gender Identity Is Real

When Strong moved for summary judgment, her brief included a passage about Fleming’s terfiness (typos corrected):

“Reviewing the evidence, [Fleming] squarely believes that ‘transgender individuals have inappropriately chosen a contrary gender identity’ to their natal sex. See Doe, 2024 WL 2947123, at * 3 (emphasis in original); [ECF No. 133-1, p. 10:8-10 (‘Q: So what would -- what would you call a biological male living as a female? A: A man.’)]. Indeed, she refuses to even recognize the term ‘transgender’ exists. [Id. at 10:22-23 (‘My statement is transgenders do not exist, so there’s no definition.’)].”

I left in the citations so you could see the first one: Strong isn’t quoting Fleming there. She’s quoting a case called Doe v. Ladapo and asserting that Fleming’s views match one that it disparages. 

Ladapo is a 2024 ruling from the same court, Northern District of Florida, in which Judge Robert Hinkle found that the state’s ban on pediatric gender medicine was unconstitutional. (I wrote about his decision in June.) Here’s the passage that Strong quoted from above:

“The elephant in the room should be noted at the outset. Gender identity is real. … 

“[T]here are those who believe that cisgender individuals properly adhere to their natal sex and that transgender individuals have inappropriately chosen a contrary gender identity, male or female, just as one might choose whether to read Shakespeare or Grisham. Many people with this view tend to disapprove all things transgender and so oppose medical care that supports a person’s transgender existence. …”

I don’t see the legal relevance of Fleming’s views on gender identity. The question in her case, remember, turns on whether “filthy” curtains stretch fully from one end of the shower stall to the other.

I wonder if Strong is quoting Fleming’s deposition because the judge in her case, Mark Walker, clerked for Hinkle. This often means a mentor-mentee relationship. Strong may be hoping to turn Walker against Fleming based on her beliefs. If I’m right, that’s chilling. Strong and her DOJ lawyers are, of course, government actors.

To be fair, Strong states: “[Fleming] is free to maintain this belief.” She implies that the belief is relevant because it suggests Fleming has an anti-trans motive for bringing the suit – but motive isn’t an element of the bodily privacy claim.

Who Wants to Represent Fleming Next?

The gender industry’s victims are legion: female prisoners like Fleming, trans-identified patients abused by doctors and therapists, parents of children who want to use gender drugs, small businesses accused of anti-trans discrimination, workers fired for wrongthink. Many of these people aren’t able to fight for their rights because they can’t find lawyers willing and able to take their case, or they can’t afford a lawyer.

Only a few nonprofits serve these clients. Biglaw won’t represent them pro bono. Many smaller firms won’t take them for pay. Why? Even in Tallahassee, which is considered part of the Bible Belt, at least one influential federal judge believes “gender identity is real” and appears to feel some dudgeon about it. This can deter local law firms from championing a truth-bomber like Fleming.

Bristol represents the near-term future of sex-realist litigation: freethinking lawyers who aren’t chained to a cautious bureaucracy and wear Hawaiian shirts in their law firm website pics.

They’re great. We just need more of them.

1. Why Therapists Trans Away the Gay

2. Ken Zucker and the Invention of Childhood Gender Identity Disorder

3. The Assessment Sham

4. Christian Counselor Asks Supreme Court to Legalize Gay Conversion Therapy for Kids

5. Re-educating “Diverse” Families (white woman wants to pressure black parents to trans their kids who are likely gay)

6. Don’t Say Gay at the LGBTQ Rights Trial (psychiatrists mislead the court about studies on gays to support argument for transing kids)