The Washington PostDemocracy Dies in Darkness

The new wave of anti-trans legislation is based on very old arguments and ideas

Trans Americans have taken to the courts for decades to fight against the notion that they are a threat

Trans rights activists protest in Seattle last year. (Lindsey Wasson for The Washington Post)
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Florida Gov. Ron DeSantis (R) recently signed a bill that would prevent transgender girls from playing on public school sports teams. LGBTQ groups are expected to sue to stop implementation of the law, which is grounded in harmful and unfounded assumptions that cast transgender people as a threat and that deny that trans women are women.

Fighting this legislation and other bills like it is an urgent task. Indeed, for decades, transgender activists have used the courts to fight for their right to play sports, seek and keep employment and simply exist. Today’s LGBTQ organizations and groups can glean critical lessons from this history.

Perhaps the best-known example is that of tennis player Renee Richards, who in 1977 successfully sued the United States Tennis Organization and was allowed to compete in the U.S. Open, making her the first openly trans athlete in the United States.

But she wasn’t the only one. Throughout the 1970s and 1980s, at least 25 trans plaintiffs fought in court to challenge their employers’ argument that out trans workers posed a threat to customers, co-workers, children and industry. The vast majority of these plaintiffs were White, had means and worked hard to be recognized as “respectable” — that is, heterosexual and gender-normative. Access to gender-affirming transition and medical care was highly stratified by class between the 1950s and 1980s, leaving poorer trans people, trans people of color and gender- or sexually transgressive trans folks much more precariously situated and less positioned to raise employment discrimination claims in court.

In 1971, 52-year-old New Jersey music teacher Paula Grossman transitioned from male to female. A tenured teacher, characterized by contemporary reporters as being “well-liked by students,” Grossman thought she would have no problem returning to the classroom as a woman. Her school, however, soon dismissed her because officials worried that an out transgender teacher might inflict lasting psychological harm on her students.

For the next eight years, Grossman fought her employer in state and federal court. While she never regained her job, she did eventually win back pay and a disability pension.

Grossman was far from the only out transgender worker caught in a web of transphobia that kept transgender women and men from exercising their freedoms. In 1975, administrators at the Ralph K. Davies Medical Center near San Francisco justified their dismissal of hemodialysis technician Carol Lynn Voyles by arguing her very presence in the ward as a trans woman further harmed sick patients. In 1980, Eastern Airlines argued in court that because pilot Karen Ulane was transgender, she might prove to be as dangerous to passengers as an alcoholic pilot.

As this suggests, it was quite common for employers to justify these dismissals by arguing that the presence of transgender employees was effectively bad for business. Initially, the courts upheld this reasoning. In 1978, Florida hairdresser Raegan Kelly Kirkpatrick was fired for wearing women’s clothing at work, despite a note from her doctor attesting she was trans. A federal judge upheld her dismissal, writing that one should “dress and act as persons of their biological sex” because “allowing employees to do otherwise may disturb the customers and cause them to take their business elsewhere.”

Then as now, there was zero evidence that transgender people posed any kind of threat to others or to businesses. Nevertheless, the baseless claims of employers proved a convincing rhetorical scare tactic that helped to legally justify workplace anti-trans discrimination.

Appeals to biology also played a role. Courts rarely sided with transgender plaintiffs, in part because judges hesitated — often in degrading or humiliating ways — to affirm plaintiffs’ claims to womanhood or manhood. In discussing Kirkpatrick’s case, for example, a federal judge categorically stated: “No finding is made that plaintiff is female or would be female after completion of the reassignment procedures.” Similarly, the pilot Ulane’s body was rigorously scrutinized in court, with her organs, hormone counts and sex chromosomes weighed heavily in judges’ determination of her biological sex.

Transgender activists challenged this legal reasoning and the rigid ideas about gender they upheld. Plaintiffs like Ramona Holloway urged the courts to expand the definition of “sex” in Title VII of the Civil Rights Act to include “persons not readily classifiable as male or female.” Other plaintiffs, including Grossman, framed their trans identity as an “unusual, but nonetheless perfectly legitimate medical problem” and urged employers not to react reflexively to medical conditions they did not understand. Appealing to the news media, Grossman’s attorney asked, “[a]re we to cast out transsexuals as lepers were once cast out?”

Decades of activism has pierced powerful holes in these anti-trans arguments. In 1973 and 1975, gay and trans activists helped pass a Washington, D.C., city ordinance that explicitly prohibited discrimination in housing and employment based on sexual orientation and sex change, respectively. This ordinance allowed trans police officer Bonnie Davenport to keep her job while transitioning from male to female between 1977 and 1979. Davenport was eventually partnered with a gay police officer whose job was also protected by the ordinance, and while the two reportedly faced “cold stares and harassment” from their co-workers, they were able to keep their jobs and eventually won “praise from their supervisors and even grudging acceptance from their peers.”

Since then, increasing numbers of out transgender workers have provided mounting evidence against the notion that trans people could pose a particular threat to workers, customers, children or industry. And in 2020, the Supreme Court ruling in Bostock v. Clayton County, Georgia, officially extended trans workplace protections across the country.

Despite these critical gains, anti-trans arguments have found their way back to our politics, laws and courts, now five decades after Grossman was terminated from her job.

To be sure, today’s anti-trans efforts are couched in more careful language than they were in the 1970s and 1980s. Florida state Sen. Kelli Stargel (R) ignored transgender athletes altogether when she hailed the recent bill for ensuring “women can safely compete, have opportunities and physically be able to excel in a sport that they trained for, prepared for and work for.” By shifting the focus from the transgender athletes this bill discriminates against, Stargel framed the issue in terms of women’s equality, adopting the language of nondiscrimination.

But contemporary anti-trans messaging is still based on the same underlying assumptions that employers long used to justify firing transgender workers: that trans people are threatening and that trans women aren’t women. These assumptions have always been unfounded, harmful and false. Justifications for anti-trans bills often depend on vague appeals to biology, pointing to nonexistent effects that the presence of trans athletes might or could have on sports.

By contrast, there is mounting evidence that these bills do serious harm to transgender youths, adding to stigma and contributing to their notably high rates of death by suicide. As many as 40 percent of trans youths seriously considered attempting suicide last year, according to the Trevor Project’s National Survey on LGBTQ Youth Mental Health, and the mounting attacks may exacerbate their vulnerability.

History shows us that these arguments are rooted in fear, not fact, and advance discrimination, not equality. Let’s learn from it this time.