March is Women’s History Month, which means I’m often asked to name the most pressing issue facing women in America. Answers spring to mind, sometimes faster than I can form the words. The fall of Roe and the Black maternal mortality crisis. The persistence of the gender wage gap and on-the-job sexual harassment, more than five years after #MeToo. Barriers to safe, affordable housing. Policing of Black and Brown mothers, leading to needless family separation. The lack of universal paid family leave coupled with the skyrocketing cost of childcare. The list goes on.
None of these ills, however, is the subject of so-called “Women’s Bill of Rights” laws being introduced in a growing list of states including Kansas, Arizona, South Carolina, Oklahoma, and Montana. Instead, this legislation would create a legal definition of womanhood based on the capacity to produce ova, or human eggs. This definition of “woman,” which is gerrymandered to exclude trans women and girls, would then apply throughout state law — and could make it impossible for trans people to live openly at work, at school, or anywhere in the states they call home.
Limiting freedom for trans people worsens conditions for all women by re-entrenching the very gender stereotypes that have underpinned centuries of women’s oppression.
That should set off alarm bells for all of us, not just those engaged directly in the struggle for LGBTQ rights. The “Women’s Bill of Rights” is only a sliver of the cruel campaign to deny basic rights to trans people currently underway across the country. And despite its misleading label, it shares a through-line with a long and ugly history of gender-based subjugation in the name of “biology.” For centuries, laws and policies premised on women’s biological capacities and “delicate” nature were used to shut women out of educational, economic, and civic opportunities. On these grounds, the U.S. Supreme Court upheld laws barring women from becoming attorneys — or bartenders. Similar “biological” arguments were used to exclude Black women from “the fairer sex” in order to justify extraction of Black women’s labor under the institution of slavery and beyond.
As feminists, we reject efforts to appropriate the rhetoric of “women’s rights” to inflict life-threatening harm on trans people, men or women. Attacking trans people does nothing to address the real problems women face. To the contrary, limiting freedom for trans people worsens conditions for all women by re-entrenching the very gender stereotypes that have underpinned centuries of women’s oppression and that the ACLU Women’s Rights Project has worked for more than half a century to dismantle. After all, the very notion that a person should identify with the sex they were assigned at birth for their entire life is a stereotype, as the more than 1.5 million trans people living in the United States attest to every day.
Formed in 1972, the Women’s Rights Project’s earliest cases focused on establishing rigorous judicial review of laws that classified people on gender lines, often based on long-held stereotypes about men’s and women’s capacities and without regard to individual abilities, needs, and wants. That work, led by Ruth Bader Ginsburg for the ACLU, included challenging a probate rule that preferred men to women based on the stereotype that any man is more capable of settling an estate than every woman; a housing allowance offered to servicemen, but not servicewomen, based on the stereotype that men should be primary breadwinners; and an income tax deduction available to women, but not men, based on the stereotype that only women should be caregivers.
The plaintiffs in these cases included men as well as women. What they had in common was that each defied gender stereotypes, out of desire or necessity. And all fought to live fully and authentically, without laws and policies that constrained them based on gender or their ability to bear children. To live openly as transgender is to seek that same freedom.
Not only is there no conflict between demanding rights for women and for all transgender people, advances in trans rights hold a specific promise for women’s liberation. By tearing down laws and policies based on gender stereotypes, we can create the opportunity for each of us to determine our own life story. That’s why the Women’s Rights Project strives to represent people of all genders, transgender, nonbinary, and cisgender, who face barriers based on their sex.
Today’s avalanche of attacks on trans people, with over 400 anti-LGBTQ bills introduced in state legislatures in 2023 so far, makes plain that the gender discrimination of the past is all too present today. Defending trans people is not only a moral duty for the feminist movement; it is central to it.
