Two Truths in Tension: When Law Meets the Transgender Experience
The Supreme Court is scheduled to hear arguments this term in Stitt v. Fowler, a case concerning the putative right of transgender individuals to accurately identify themselves on important documents. Source: Alliance Defending Freedom
Factual background
I. The increasing visibility of transgender individuals
In recent years, the visibility of transgender individuals has increased in society. As the erroneous equation of sex—the classification of one as male or female—and gender—the roles society imposes on individuals one one sex—has gradually been dismantled by advancing medical knowledge, transgender individuals—those whose sense of gender did not align with the sex-based gender imposed on them by society—have begun living more openly and authentically.
However, American society has been slow to accept the increasing visibility of transgender individuals. A number of factors influence this hesitancy. In heavily Christian states, many reject the idea of being transgender as being incompatible with the Biblical notion of a binary sex/gender system. Outside of a religious context, many believe the idea of being transgender is “unnatural” and therefore a “sickness” to be cured. As a result, many states have enacted legislation to reject what they deem to be “gender ideology” and reinforce the traditional understandings of sex and gender; one of these states is Oklahoma.
II. Oklahoma’s Executive Order and present litigation
Prior to 2021, Oklahoma allowed its State Department of Health (OSDH) to amend an individual’s sex designation on their birth certificates to reflect their gender identity. Reacting to the wave of anti-transgender sentiment sweeping across the nation, Governor Kevin Stitt issued an Executive Order prohibiting the OSDH from making such amendments. Respondents, recently-transitioned transgender individuals prohibited from amending their sex marker to reflect their gender identity, brought suit against the Governor on the grounds that the Executive Order violated the Equal Protection Clause of the Fourteenth Amendment. The trial court upheld the Executive Order, dismissing Respondents’ Equal Protection claim, but the Tenth Circuit reversed. Petitioners now appeal to this Court, seeking reversal of the Tenth Circuit’s judgment.
III. The historical conflation of sex and gender
Every society has a range of roles and responsibilities expected of its members. In Western societies, this range of roles and responsibilities was traditionally divided into two sets. Each set would be assigned to one group, and each group’s adherence to their assigned roles was strictly enforced.
The set of roles associated with nurturing the society (cooking, child-rearing, etc.) was assigned to the group observed to have child-bearing reproductive organs. The set of roles associated with producing for the society (hunting, gathering, etc.) was assigned to the group observed to have child-begetting reproductive organs. Each group was then assigned a name. The group with child-bearing reproductive organs was called “female,” and the group with the child-begetting reproductive organs was called “male.”
Because it was generally discouraged for members of one group to perform the roles assigned to the other group, each set of roles and expectations was given the same name as the groups to which they were assigned. When individuals identified as “male” or “female,” they were usually referring to the set of roles assigned to them, and only incidentally to the reproductive organs they were observed to possess at birth. In other words, individuals referred to their gender, their socially assigned role set, which happened also to refer to their biological sex. This conflation made it seem like an individual belonged to one group, while in a strictly logical sense, the individual belonged to two groups: the group of individuals who shared their socially assigned roles and the group of individuals who shared their reproductive anatomy. When making rules, Western societies would draw distinctions between the two biological groups because they had “enduring physical differences” that would make uniform regulation across all individuals impractical.
IV. The harmful effects of conflating sex and gender
However, the Western system of sex-based role classification failed to account for the existence of transgender individuals—individuals whose internal sense of identity did not align with the roles assigned to them at birth. These individuals were labeled as mentally ill, their experience formally classified as a medical diagnosis known as “gender dysphoria.” As the medical consensus increasingly recognized that a misalignment of one’s sense of gender with the sex-based gender imposed on them by society could be a normal variation in the human experience, questions arose about how to categorize transgender individuals within a legal and social framework built on the assumption of a binary and biologically determined system.
One of these questions is at the heart of the issue in the present case. Although sex and gender are distinct concepts, governments historically documented only sex, because in a society where sex was presumed to determine gender identity, there was no perceived need to separately record gender. How, then, should a legal system that documents only sex account for individuals whose gender identity does not align with their sex? Respondents propose having “sex” record gender identity. However, this would conflate sex with gender, precisely the understanding that the medical consensus has rejected. This is harmful, as Oklahoma—and any government for that matter— has an important interest in maintaining sex as a distinct category.
As stated earlier, when an individual identifies as “male” or “female,” they usually refer to their gender. For cisgender individuals—those who are comfortable with the sex-based gender roles assigned to them—they typically experience no discomfort with their sex being recorded on official documents. For transgender individuals, however, the documentation of their anatomical sex can be a painful reminder of an unwanted gender role that society has sought to impose on them. Consider a transgender man whose sex is documented as female. Although this designation is correct from a definitional standpoint, he may nonetheless perceive it as a limitation on his ability to accurately and authentically identify himself; the “female” designation ties him to a gender role he does not want.
In theory, this discomfort should not arise. As established previously, individuals belong to two groups: those who have the same gender roles and those who have the same reproductive anatomy. In this theoretical world, our transgender man would recognize that his sex being recorded as female does not deny his membership in the male gender group, but simply observes his membership in the female sex group. However, the conflation of sex and gender has made this theoretical distinction impossible. Because sex and gender are still largely seen as synonymous (even by transgender individuals, who have had the binary, sex-based gender classification system ingrained in them), our transgender man may experience the accurate documentation of his biological sex as a denial of his gender identity. This negative experience is at the heart of Respondents’ Equal Protection Claim. We can sympathize with their desire for the sex marker to reflect their gender identity because sex, for now, is still perceived to record gender identity. However, the government still has an important interest in distinguishing individuals on the basis of sex.
Summary of Argument
Petitioner, in issuing an Executive Order prohibiting individuals from having their sex changed on their birth certificates, did not violate the Equal Protection Clause of the Fourteenth Amendment. First, the Executive Order concerns only the documentation of anatomical sex at birth, not the separate concept of gender identity on which Respondents base their sex discrimination claim. While we acknowledge that gender identity discrimination can be a form of sex discrimination under Bostock, we also believe the Court must take care not to adopt an overly expansive reading of this reasoning to effectively erase the distinction between sex and gender. Respondents’ argument does precisely that by attempting to cram gender identity under the definition of sex. Second, the Executive Order serves an important government interest. When a transgender individual affirms their gender identity, it does not mean the physical characteristics associated with their biological sex disappear. Because accurate documentation of physical sex is essential to promoting fairness, the government has an important interest in ensuring the accurate documentation of one’s sex.
Argument
I. Respondents fail to establish discrimination
Respondents argue that Bostock v. Clayton County should control. While we do not dispute the logic of Bostock, we do not believe Respondents’ arguments reach its logic. First, Bostock presupposes that an instance of discrimination has occurred. Respondents, by failing to show that the benefit they were denied was a common one (or even a benefit at all, for that matter), do not state a valid discrimination claim. In fact, an examination of the real common benefit shows that Respondents enjoy that benefit as equally as their cisgender counterparts. Second, any discriminatory effect the Executive Order has should not be combatted using awkward redefinitions. Instead, the legislative realm is the more appropriate setting to do so. Deferring to the democratic process would ensure a more robust and protection of the rights Respondents seek to assert.
A. Bostock extends to gender identity-based discrimination, but requires proof of discrimination in the first place
In Bostock v. Clayton County, the Supreme Court considered the case of Gerald Lynn Bostock, a gay man who had sued his former employer, the county of Clayton, Georgia, for firing him after discovering his sexual orientation. Bostock alleged that his firing ran afoul of Title VII of the Civil Rights Act of 1964, which made it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” In raising his Title VII claim, Bostock acknowledged the absence of a “sexual orientation” category in the statute. However, he contended that Title VII’s prohibition against sex discrimination still protected him from being fired on the basis of his sexual orientation.
Justice Gorsuch, writing for the majority, agreed with Bostock. To reach this conclusion, he centered his reading of Title VII around the phrase “because of.” In ordinary public discourse, Justice Gorsuch observed, “because of” incorporates but-for causation. That is, in ordinary usage, one common way we understand an outcome to occur “because of” a cause is when the outcome would not have occurred “but for” that cause. To determine whether something is a but-for cause of an outcome, Justice Gorsuch instructs us to “change one thing at a time and see if the outcome changes.” If it does, that cause is a but-for cause. Applying this logic to Bostock’s case, Justice Gorsuch reasoned that Bostock’s sex was a but-for cause of Clayton County’s decision to fire him.
“Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”
Bostock 590 U.S. at 656-57
We now turn to the present case. We do not dispute Respondents’ contention that Bostock’s logic can be extended to gender identity-based discrimination (which Bostock indeed does). Gender identity-based discrimination, like sexuality-based discrimination, is at its essence, sex discrimination, because it has sex as a but-for cause. Take two work colleagues who both identify as female. One of those colleagues is fired for no reason other than the fact that she was assigned male at birth, while the other continues at the workplace because she was assigned female at birth. We can confidently say that the first colleague would not have been fired “but for” her sex, and that her firing would constitute unlawful sex discrimination under Title VII. Where we take issue with Respondents’ application of Bostock to the present case is that they overlook a critical threshold requirement. Bostock discusses the reasons for discrimination, but a discussion of the reasons for discrimination presupposes that an instance of discrimination has occurred. Respondents have failed to establish this presupposition.
B. Respondents fail to identify the denial of a common benefit.
Discrimination occurs when a benefit meant to be equally available to all is granted to one group and denied to another. In the present case, the “benefit” at issue is the accurate documentation of one’s sex—one’s classification as male or female based on the reproductive organs they were observed to possess at birth. Respondents allege the discriminatory denial of a completely different benefit, the accurate documentation of one’s gender identity—one’s classification as male, female, or other based on how they perceive their role in society. Discrimination, however, requires the denial of a common benefit, not different benefits for different individuals. We cannot say that person A, who is denied benefit A, has been discriminated against relative to person B, who receives benefit B—especially where person B might equally be denied benefit A.
C. Respondents’ “disparate impact” theory of discrimination still fails the “common benefit” requirement of discrimination
Let us now examine more closely how Respondents’ theory of discrimination fails under the definition of discrimination. Respondents’ argument rests on the “disparate impact” theory. This theory states that a facially neutral regulation may nonetheless be discriminatory because it has the effect of disproportionately favoring one group over others. A commonly used example is a police department that imposes a six-feet height requirement for all recruits. While both men and women are technically subject to the requirement, it has the effect of discriminating against women because there are few women who are six feet or taller. Drawing from this logic, Respondents argue that because only transgender individuals would wish to change the sex on their birth certificate, the Executive Order is discriminatory, notwithstanding its facial neutrality.
However, Respondents misapply the disparate impact theory to a classification the Executive Order does not reach. At its core, this is once again a failure to demonstrate denial of a common benefit—or indeed, any benefit at all. Respondents argue that they are denied a putative right to accurate documentation of gender identity that cisgender individuals otherwise have. The problem is, Oklahoma’s birth certificates do not record gender identity in the first place, meaning there is no right to have one’s birth certificate reflect their gender identity at all. The fact that the sex marker on a cisgender person’s birth certificate happens to reflect their gender identity is merely a fortunate coincidence, not evidence of a substantive right to accurate documentation of their gender identity. This means that the accurate documentation of gender identity is not only not a common benefit, but a benefit that does not exist at all.
Instead, the actual “common benefit” is the general right to accurate documentation. The Executive Order does not deny transgender individuals this common benefit. Consider a transgender man who was observed to have female genitalia at birth. Requiring the OSDH to document his sex as female does not deny him the right to accurate documentation. This designation is accurate because it comports with the medically accepted definition of sex, which classifies individuals based on the reproductive anatomy observed at birth. Assuming all other identifiers on his birth certificate (name, place of birth, time of birth, etc.) are accurate, his documentation is equally as accurate as that of his cisgender counterpart, because his sex marker reflects the undeniable truth that he was observed to have female genitalia at birth.
One might argue that the Executive Order is discriminatory because it is motivated by anti-trans animus; the Governor, knowing that there is nothing on Oklahoma’s birth certificates to record gender, sought to enforce the definition of sex to signal to transgender individuals that their gender is not recognized. However, the Order does just that—enforce. By requiring the OSDH to document individuals’ sex in accordance with the definition of sex, the Governor maintains the same standard of accuracy for transgender and cisgender individuals alike. If the Court grants Respondents the relief they seek, Oklahoma’s documents would effectively conflate sex with gender identity, an understanding that is contrary to accepted medical consensus and that may ultimately be harmful for individuals like Respondents.
D. In seeking relief from the Court, Respondents should pay heed to the distinction between sex and gender identity
If, however, Oklahoma’s birth certificates had a separate gender identity marker, and Respondents were denied the opportunity to amend that marker, we would wholeheartedly raise an Equal Protection Claim on their behalf. In this case, there is a common benefit that is denied to transgender individuals and granted to cisgender individuals. At this point, Bostock would kick in; the denial of the right to have one’s documentation accurately reflect their gender identity would necessarily hinge on an examination of the individual’s sex. An official determined to discriminate against a transgender individual would have to examine that person’s sex to determine it is inconsistent with their gender identity and deny them the right to accurate documentation.
We acknowledge it is unfortunate that Oklahoma’s birth certificates are not yet equipped to reflect our evolving understanding of sex and gender identity. We sympathize with individuals like Respondents who wish to have their documents reflect their gender identity. As Respondents allege in their complaint, the inability to “accurately present [their] identity to those with whom they come into contact” “erects a barrier to the full recognition, participation, and inclusion of transgender people in society.” (Complaint at 2) Nevertheless, we do not believe it is prudent to break this barrier by claustrophobically interpreting sex to include gender identity. As sex and gender are increasingly recognized as distinct concepts, this interpretation of sex is shaky at best. If the Court adopts this weak reasoning to issue a ruling in favor of Respondents, we fear that a slightly more scrupulous Court in the future may exploit this weakness to overturn Respondents’ desired ruling.
To achieve the equal treatment that Respondents desire, we believe the democratic process is the more appropriate means. Oklahomans like Respondents can engage in public discourse to turn the tide of public opinion. They can run for office to participate in decision making that directly affects them. They can lobby their legislators to pass legislation that amends Oklahoma’s vital records to better reflect our evolving understanding of sex and gender. If and when such efforts succeed, the resulting changes will carry the force of law and enjoy the legitimacy that comes with public support—far more than any decision imposed by judicial fiat.
II. The accurate documentation of one’s anatomical sex serves an important government interest
We recognize that in light of the absence of a separate gender identity marker (a reform that will likely take considerable time to implement), Respondents may feel that redefining the sex marker to record gender identity is the only way to achieve fairness, notwithstanding the risks of conflating sex and gender. However, the conflation of sex and gender would lead to the ultimate erasure of sex as a meaningful descriptor, and also trample on fairness interests. The Court has recognized that there exist “enduring physical differences” between the two sexes and that acknowledging these differences is sometimes necessary to achieve fairness. When a transgender individual affirms their gender identity, some or all of their sex-based physical characteristics still endure; in other words, after transition, their sex still remains the same. Improperly recording their gender identity in place of their sex could obscure their physical differences with members of the other sex, and lead to unfair treatment where sex is a crucial factor.
A. The Government may draw distinctions based on enduring physical differences between the sexes
In United States v. Virginia, 518 U.S. 515 (1996), the Court considered the case of a group of female applicants who had challenged the all-male admissions policy of the prestigious Virginia Military Institute (VMI), arguing that the policy constituted impermissible sex discrimination under the Equal Protection Clause. In a 7-1 decision written by Justice Ruth Bader Ginsburg, a renowned advocate of gender equality, the Court ruled in favor of the applicants. The Court first established a test for evaluating policies that discriminated on the basis of sex. Such policies could only survive Equal Protection scrutiny if they were backed by an “exceedingly persuasive justification.” Virginia 518 U.S. at 531. Turning to VMI’s policy, the Court held that VMI’s justifications for its policy were not “exceedingly persuasive,” as they were based on “overbroad generalizations” about the physical and mental fitness of women to endure the demands of military training. Id. at 533.
However, the Court also did not foreclose the possibility of using any generalizations to justify policies that differentiated on the basis of sex. The Court recognized that there existed “enduring physical differences” that could justify a policy’s differential treatment of the two sexes. This acknowledgement laid the groundwork for later cases considering the constitutional validity of laws that drew distinctions between men and women based on biological realities rather than stereotypes.
In Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001), the Court applied this reasoning to uphold, on Equal Protection grounds, a citizenship law that imposed different requirements on American fathers and mothers seeking to transmit citizenship to the children they had abroad, and out of wedlock, with non-American partners. The law had sought to ensure the integrity of birthright citizenship by requiring Americans to establish that they had a biological connection to their children. According to the law, American mothers could transmit citizenship to their children automatically, while American fathers had to fulfill a stringent set of paternity requirements to transmit citizenship to their children. Nguyen 533 U.S. at 59. When Petitioner Tuan Anh Nguyen, a Vietnamese-born legal permanent resident, plead guilty to sexual assault (which made him subject to deportation), his American father attempted to establish paternity to transmit his own citizenship onto his son. However, the Immigration and Naturalization Service, responsible for implementing the citizenship law, rejected the evidence he had provided because he had failed to provide the evidence before his son’s 18th birthday, as required by the law. Nguyen then sued the INS on Equal Protection grounds, arguing that the law impermissibly discriminated on the basis of sex.
In rejecting Nguyen’s Equal Protection Claim, the Court reasoned that an enduring physical difference—the unique ability of women to bear and birth children—made determining paternity much more difficult than determining maternity. That is, a woman’s biological connection to her child is conclusively demonstrated through the exercise of that unique ability (an event that is easily observable) whereas a man has no comparable, observable means of establishing his paternity. Nguyen 533 U.S. at 62. Because the Court ruled that the law served a government interest deemed to be important (the interest in establishing a biological connection between an American and their child), it could withstand Equal Protection scrutiny, notwithstanding its discriminatory effect.
B. Enduring physical differences still persist after gender transition, necessitating accurate documentation of sex
Virginia and Nguyen highlight the importance of maintaining biological sex as a category. If the Government cannot make distinctions with regard to the “enduring physical differences” between the two sexes, it cannot accomplish its important objectives. Let us discuss this in the context of the present case. When a transgender individual affirms their gender identity, they usually take one of two courses of action: 1) changing how they present to the world or 2) changing both their presentation and their anatomy. In each case, the conflation of sex and gender can produce unfair outcomes.
Let us consider the first course of action. A transgender man begins dressing, grooming, speaking, etc. in a way society traditionally associates with being male, but does not make any modifications to his biology. Physically, he is still very much a member of the female sex group, retaining the biological capacities of that group—menstruation, childbirth, lactation, etc. In this case, it is unquestionable he retains all the “enduring physical differences” recognized in Virginia. Because these differences can inform how the Government draws sex-based distinctions in service of its important interests, as shown in Nguyen, the Government has an corresponding interest in accurately recording his anatomical sex.
Take, for example, a tampon distribution program. Such a program could serve an important government interest—advancing public health by promoting safe menstruation. Because menstruation is an “enduring physical difference” unique to members of the female sex group, accurate recording of anatomical sex is necessary to ensure that individuals who menstruate—regardless of their gender identity—can access the program’s benefits. Under Respondents’ theory, where sex would be redefined to record gender identity, individuals like our transgender man could not benefit from such a program, despite his biological need for it.
C. Even when a transgender individual makes physical changes to their body, there still exist crucial physical differences that necessitate the accurate documentation of sex.
The other course of action not only involves changing one’s presentation, but also taking steps to bring one’s body in alignment with their gender identity, a process known as gender-affirming care. Our transgender man may undergo procedures like breast reduction surgery and voice deepening surgery, changes that make him not only outwardly more similar to males in appearance, but also biologically more similar in certain respects. Even so, important physical differences still endure. Despite the advancements of modern medicine, it still remains impossible to fully transform the anatomy of one sex into that of the other. Consider the example of pulmonary anatomical structure. Important physical differences exist between those assigned female at birth (AFAB) and those assigned male at birth (AMAB), particularly with respect to 1) the luminal area of central conducting airways (the size of the main air passages, such as the trachea and bronchi) 2) lung size or total lung capacity (TLC) and 3) the shape of the chest wall and lungs. The confluence of these differences means that AFAB individuals generally possess a lower functional aerobic capacity (the ability of the heart and lungs to deliver oxygen during exercise) than AMAB individuals.
Even when transgender individuals opt to make physical changes to reaffirm their gender identity, such as through gender-affirming hormone therapy (GAHT), the physical differences in the three constituent structures still persist, and so does the corresponding difference in FAC. In a study conducted by Cortes-Puentes et al., when transgender women were grouped with cisgender women, their FAC was significantly higher than similarly situated cisgender women (and even slightly higher than that of cisgender men), suggesting that GAHT did little to bring down the FAC of a trans woman to the level of a cisgender, AFAB woman. Similarly, when transgender men were grouped with cisgender men, their FAC was significantly lower than that of similarly situated cisgender men (and even slightly lower than that of cisgender women), suggesting that GAHT did little to raise the FAC of a trans man to the level of a cisgender, AMAB man.
The results of the study outline precisely the harms that may arise when sex is conflated with gender. The study, after all, had analyzed the persistence of certain physical differences through the lens of such conflation (grouping transgender women with cisgender women and transgender men with cisgender men). Consider a policy such as military fitness testing. Because of the enduring difference in pulmonary anatomical structures between the two sexes (and the resulting difference in FAC), it is necessary for the military to have accurate information about the anatomical sex of its recruits. Without it, the military risks producing two unfair outcomes: for AFAB recruits, it may inadvertently impose on them a physical requirement they cannot reach not by virtue of being physically unfit, but by virtue of the natural limitations of their sex-dependent biology. For AMAB recruits, it may inadvertently impose on them a physical requirement that they pass not by virtue of being physically fit, but by virtue of sex-based anatomical advantages.
This hypothetical is clearly demonstrated by the study. When AMAB transgender women were grouped with cisgender women, they demonstrated higher-than-usual FAC than cisgender women, suggesting that in a military training situation, their FAC, rather than their true physical fitness, would become a greater determinant of success in a test designed for AFAB recruits. Conversely, when AFAB transgender men were grouped with cisgender men, they demonstrated lower-than-usual FAC then cisgender men, suggesting that their sex-determined FAC, rather than an actual lack of physical fitness, would be a greater controlling determinant of failure in a test designed for AMAB recruits.
Conclusion
Transgender individuals like Respondents deserve a place in our society. They deserve the right to present themselves fully and authentically, and to be treated with dignity and respect. However, the relief Respondents seek is not the appropriate way to achieve these objectives. A conflation of sex and gender would not only impair the government’s ability to draw distinctions necessary to ensure fairness, but also undermine the public’s understanding of the transgender experience. A proper understanding of what it means to be transgender depends on recognizing that sex and gender are distinct concepts. A transgender individual experiences a clash between two identities, their sex and their gender, and not a desire to change a singular identity. While we recognize that transgender individuals should not be asked to wait indefinitely for recognition, we must take care to ensure that changes to legal frameworks do not unintentionally perpetuate discrimination in the long term.
For the foregoing reasons, the judgment of the United States Court of Appeals for the Tenth Circuit should be reversed.
Respectfully submitted,
Counsel for Petitioner