By Willow (willowashmaple.sbs, formerly of willowashmaple.xyz)
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.
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