On the recent escalation of anti-trans politics in the United States
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Aug. 31, 2024

A decade ago, the transgender advocacy movement appeared to have
won. The generation between 2000 and 2015, an increasing number of
state and local legislative bodies have enacted anti-discrimination
laws protecting transgender individuals from discrimination. By
2015, nearly all U.S. states allowed the changes of gender markers
on identification documents and many also on vital statistical
records. The mainstream media proclaimed a "transgender tipping
point." 2015 was also when the Supreme Court of the United States
ruled in Obergefell, legalizing same-sex marriages nationwide.

A lot has changed since then. Between 2020 and 2024, state
legislatures have introduced hundreds of bills aimed at enshrining
discrimination against trans people, and even to prohibit any legal
recognition of them. Conservatives have stolen the talking points
from fringe radical feminists (who were almost universally
marginalized and were never taken seriously just a decade ago) and
successfully coopted both their messages and their public figures
to advance the "Christian" nationalist agenda that would ultimately
destroy both gay rights and feminist gains of the last 60 years.

Among others, one of their favorite go-to talking points is an
appeal to "science" or "biological reality." While actual
scientists may have a lot to say about this, the far-right simply
likes to use "science" as a shorthand for a simplistic and
thought-terminating slogan such as "XY = men, XX = women."

After getting lots of pushback from scientists as well as from
LGBTQ+ advocates, the Republican legislators slightly shifted their
strategy: In nearly all anti-trans bills passed between 2021 and
2024, "male" and "female" are defined by potential reproductive
capacity at birth (which leads to an ironic situation in which they
dishonestly call female Olympic athletes with Swyer syndrome -- the
XY gonadal dysgenesis -- "men" even though by their own legal
definitions, these athletes are clearly females).

The far-right wants to appeal to "science" to advance the idea that
our laws and public policy should reflect what they think is a
"biological reality," and that any recognition of transgenderism is
a form of "lie" enforced by the state.

This is quite interesting coming from the same people who think
corporations are people and therefore have the same rights as
individuals.

Corporations, too, are legal fictions created by governments.
"Juridical persons," as they are called by legal scholars, exist so
that assets and liabilities of businesses formed by an association
of individuals ("natural persons") possess a separate personality
in the eyes of the law. This allows business owners to protect
themselves financially in cases of business failures.

Adoptions are legal fiction as well. Adopted children are issued
birth certificates indicating as though their adoptive parents are
their true parents. Until recently, adoptees were not even given
the right to know who their biological parents were. Apparently,
the so-called "biological reality" never mattered there.

If the "Christian" nationalists and white supremacists take this to
its logical conclusion, giving Blacks and other people of color an
equal legal personality and voting rights would also be a "legal
fiction" detached from the "biological reality." Why even stop
there? Since they seem to believe that males and females are so
different giving women a right to vote and a right to own property
would also defy the biological, "God-given truth" that they seem to
venerate so much.

For that matter, a lot of things we take for granted in society are
legal fiction, including and up to our governments themselves. We
just agreed to play that game to maintain social stability and a
modicum of peace.

In fact, even the concept of citizenship and nationality in the
modern world is a legal fiction. The white nationalists who want to
deny nonbinary and trans people any legal and public recognition
because of "biological truth" are also likely to say that
naturalized U.S. citizens are not "real Americans," either.
Naturalization, indeed, is a legal fiction created by law and
government, on top of the more traditional understanding of
nationhood and nationality based on ethnic lineage or common
national heritage. I said "on top of," because naturalized citizens
never supplant or replace natural-born citizens, they just add to
the nation. It's just like trans people changing their birth
certificates won't supplant or replace existing (cisgender) women
or men.

Of course, in the end, the ultimate question is why won't we simply
end the concept of legal genders altogether? If men and women have
achieved complete equality in employment, marriage, family law
(such as inheritance and child custody), education, and all other
areas -- and when same-sex marriage has been legally recognized
since 2015 -- there aren't that many reasons left why our public
records and legal documents make "sex" such an important construct.
There was a time when the U.S. passports recorded the race of
bearers. The State Department ended that practice in 1978, a full
15 years after the Civil Rights Act.