Analysis LGBTQ

How Conservatives’ Legal Strategy to Misgender Trans Plaintiffs Could Backfire

Sam Dylan Finch

In the court of public opinion, deliberate misgendering of transgender plaintiffs—and transgender people in general—taps into the raw emotions of a country that exists in turmoil.

For any progressive, Liberty Counsel’s track record is something out of a nightmare. If there ever exists an evangelical Christian with a persecution complex requiring legal backing, rest assured that Liberty Counsel will be there, briefcase in one hand and holy Bible in the other. The organization—which has been dubbed a hate group by the Southern Poverty Law Center—has kept its track record consistent with its legal filings against Gavin Grimm, a transgender teen from Virginia.

Grimm has been at the center of a national legal controversy as he took on Gloucester County School Board for refusing to allow him to access the men’s restroom while he was a student at his now-former high school. In one recent amicus brief, Liberty Counsel consistently misgendered Grimm, scare-quoted the word “transgender,” and continuously made other attempts to undermine his identity and existence.

Liberty Counsel is one of countless conservative legal organizations that has purposefully misgendered Grimm throughout their briefings. While transphobic rhetoric like this is personally offensive, I believe that there are larger cultural, political, and legal implications as well. In many ways, however violent and offensive, the misgendering of Gavin Grimm and other trans plaintiffs is in itself tactical—employed to discredit the validity of both their identities and the legal arguments surrounding his case.

In the court of public opinion, deliberate misgendering of transgender plaintiffs—and transgender people in general—taps into the raw emotions of a country that exists in turmoil. Broadly speaking, misgendering is a tactic used to reinforce the existing panic, fear, and disbelief around transgender identities. Conservative organizations have framed the “bathroom debate”—like bills filed in Arizona, Maryland, Kentucky, Florida, and multiple other states—as fundamentally about a cisgender individual’s right to privacy and protection. And of course, under the Trump administration, officials have steadily tried to chip away at trans people’s ability to join the military or have steady employment.

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When transgender people are misgendered in this context (suggesting, for example, that transgender women are really just men masquerading as women to access women’s-only spaces), it reinforces this narrative. Many cis people are able to forget that transgender people need protection at all. The situation is misconstrued by opponents as an absurd request that violates the safety of cis people; they depict trans people as predatory impostors rather than those most often victimized in these spaces. This appears to be a pretty effective tactic—almost 40 percent of people surveyed in March oppose trans access to bathrooms that correspond with their gender identity. It makes sense, then, that opponents seeking out public sympathy and backing take this approach.

But it attempts to muddy an issue that, really, couldn’t be clearer. There are zero reported cases of trans people attacking cis people in bathrooms.  In contrast, according to one May survey featured by NPR, 70 percent of trans folks surveyed reported being denied access to restrooms, being subject to harassment, or even being physically assaulted while using the restroom. It’s apparent who is being victimized and endures the greater risk. I can say personally that I never once felt unsafe in a bathroom when I still identified as cisgender; I am constantly in fear now that I have transitioned, a common narrative in the trans community.

Even so, it makes sense that conservative legal organizations would seek to harness this vitriol by aligning themselves with transphobic rhetoric to attain some kind of public backing. Liberty Counsel, for example, described Grimm’s identity as “injecting … confusion and conflict … into the educational environment,” which would “assault and reshape the plasticity of undeveloped young brains.”

This language, implying that trans people breed confusion—a confusion that will risk damaging vulnerable youths’ brains—is a convenient argument for conservatives, who can deny the existence of trans people altogether by suggesting that it is a collectively held and dangerous delusion, one that cisgender youth must be protected from.

Culturally speaking, opponents of the transgender community might find arguments like this to be compelling; if you deny the existence of an entire community, their experiences of oppression and violence become the fault of the victim’s personal choices and even pathology. If the issue lies with the individual, it is no longer the collective responsibility of a society that systematically fails transgender people. In their minds, then, there’s no legal grounds for protecting transgender people. There’s no legal need or justification to protect an identity or a community that doesn’t exist.

The court of public opinion, however, is not the court of law. Conservative efforts to confuse the issue before the court have been largely unsuccessful. The U.S. Supreme Court even chastised Liberty Counsel for misgendering Gavin Grimm in its amicus brief, pointing to its lack of compliance with the established language around Grimm and his case as unacceptable.

Liberty Counsel, then, finds itself grappling with a bit of a Catch-22. As legal experts told Rewire, it can’t acknowledge that transgender people are categorically real and valid; otherwise it would be forced to acknowledge that they are a marginalized group and thus subject to discrimination. But if they continue to misgender Grimm before the courts, they seem deliberately disrespectful at best and biased on moral grounds at worst, which undermines their case by revealing an existing bias.

Sasha Buchert, former staff attorney and policy counsel at the Transgender Law Center, noted in an interview with Rewire, “If [Liberty Counsel] concede[s] that transgender girls are girls and transgender boys are boys—which they are—then they must concede that when transgender people are discriminated against, they are discriminated against based on their sex.”

Josh Block, staff attorney at the ACLU’s LGBT Project and lead counsel for Gavin Grimm v. Gloucester County School Board, told Rewire that “as a legal strategy,” misgendering “is probably counterproductive. It usually does not help your case to be gratuitously rude and disrespectful,” he said. “And in the context of discrimination against transgender people, intentionally misgendering the plaintiff in legal filings is usually a sign that the defendant is motivated by animus or moral disapproval.”

Transphobic rhetoric, if it is indeed strategic on the part of conservative organizations, might hold cultural sway. But in the legal arena, it is a tactical failure. As Buchert put it, “Their transphobic rhetoric clearly demonstrates for the court how much animus there is towards transgender people that lurks behind their legal arguments.”

To be sure, this does not guarantee legal victory for trans clients. In March, the Supreme Court sent Gavin’s case back to the Fourth Circuit Court of Appeals, and his school district’s anti-trans policy will remain in place as his case proceeds through the lower courts. This came after the Department of Justice and Department of Education rescinded the Title IX guidance that protected many transgender students, one of many blows to transgender justice under the new administration.

Nonetheless, misgendering as a tactic has backed Liberty Counsel and similar organizations into a corner. They must either acknowledge the existence of their bias or the existence of Grimm’s discrimination—and neither bodes well for the defense.

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