Chase Strangio's Legal Narrative

Will her sleight of hand enchant the Supreme Court?

“[Chase Strangio] appears to find himself amusing, perhaps ridiculous at times.”

-Masha Gessen (2020)

“I don't know if I've reverse-engineered the truth of my experience, to be validated, or whether it was my experience.”

-Chase Strangio (2019)

The ACLU’s star litigator is Chase Strangio, a woman in her early 40s who identifies as nonbinary and male. In July she was promoted to become co-director of the org’s LGBT and HIV Project. An activist with roots in prison abolitionism, she talks like she’s trying to bait Nellie Bowles: “I am a civil rights and constitutional lawyer who fundamentally doesn’t believe in the Constitution and the legal system.” 

On December 4, Strangio will argue before the US Supreme Court that Tennessee’s ban on pediatric gender medicine (PGM) illegally discriminates by sex and by transgender status. The case is known as Skrmetti. The ACLU’s position rests on the ruse that its young female clients are somehow boys.

This post is about how the ACLU and Strangio trick judges. I’ll break down the illusion using what I learned from a 2017 Ted Talk by the magician Robert Strong. Then I’ll explore Strangio’s motive.

For a long time I dismissed Strangio. She seemed like a bogeyman to me – a showboat whom the ACLU hired in 2013 because it wanted a trans poster boi. Since the ACLU’s trans strategy was already hatched by then, I still believe she hasn’t had much influence. But now that she’s reached the pinnacle of the legal profession by taking on a Supreme Court oral argument, that could change. 

Step 1: Exploit the Judge’s Assumptions About Gender Identity

Exploiting the audience’s assumptions is the first step in creating an illusion. Strong:

“Your brain is very powerful and it’s constantly making assumptions about the world around you … You don’t have to test every step you take before you take the step to confirm that the ground’s going to hold your weight. … The brain is programmed to make sense out of nonsense, to make connections that aren’t necessarily there.”

Consider two definitions of the term “gender identity”:

1. Your gender identity is your sense of belonging to one sex or the other.

2. Your gender identity is your sense of your gender, which you might call male, female, or something else.

The first definition describes a way of thinking about your sex. Call #1 “Classic GI.”

The second definition contains a term, gender, that is undefined. If you’re a grizzled veteran of the gender wars then you know gender is a mischievous word — it could mean anything. Call #2 “Meaningless GI.” 

If you were a normal person, you wouldn’t catch that. You'd assume that gender means sex, male means “produces sperm,” and perhaps “something else” refers to people with disorders of sex development. You'd think you were dealing with Classic GI. 

Since 2005, the ACLU has routinely deployed Meaningless GI in trans lawsuits, including ones about PGM. Its expert medical witnesses back up this usage. The crux of every case is that the plaintiffs have a “gender identity” that is “incongruent” with their “sex assigned at birth” (SAAB). If gender identity has no meaning then the whole thing falls apart.

The ACLU is trying to exploit judges’ assumption that Meaningless GI has to do with sex, i.e., that it is Classic GI. It often works (Brandt, Grimm, Ladapo…).

Step 2: Hide Sex

In 1963 the psychiatrists Robert Stoller and Ralph Greenson collaboratively coined “gender identity,” according to the philosopher Alex Byrne. 

Stoller:

“Gender identity is the sense of knowing to which sex one belongs, that is, the awareness ‘I am a male’ or ‘I am a female[.]’”

Stoller believed sex was a function of various physical characteristics like “chromosomes” and “gonads.” As quoted by Joanne Meyerowitz, he wrote in 1968:

“One’s sex is determined by an algebraic sum of all these qualities, and … most people fall under one of two separate bell curves, the one of which is called ‘male,’ the other ‘female.’”

Algebra aside, Stoller is basically saying sex is a spectrum. Biologists since Darwin say it’s binary. As I’ve explained in more detail before, the difference between Spectrum Sex and binary sex is form vs. function. While the binary refers to reproductive role (sperm or egg), spectrumites define a person’s sex in terms of their “sex characteristics,” meaning, the tangible manifestations (hairiness, voice pitch) of their reproductive role. It’s superficial.

Stoller’s version of gender identity doesn’t have a sterling scientific pedigree. Still, it helpfully distinguishes between sex (physical) and gender (psychological). You may not like his definitions of sex and gender, but he is giving you something to work with. This is the world of Classic GI.

Thirty years later, trans-identified men including Martine Rothblatt, Susan Stryker, and Phyllis Frye launched an effort to write gender identity into law. They declared in a 1993 “International Bill of Gender Rights” (IBGR):

“It is fundamental that individuals have the right to define, and to redefine as their lives unfold, their own gender identities, without regard to chromosomal sex, genitalia, assigned birth sex, or initial gender role.”

The IBGR never define gender. This is Meaningless GI.

Meaningless GI’s proponents, like the IBGR men and the ACLU, use the word sex as part of the terms SAAB and “sex characteristics” – but they never define “sex” or even refer to it without those other words.

So Classic GI is accompanied by Spectrum Sex. Meaningless GI’s sidekick is Meaningless Sex.

With Spectrum Sex, you can explain (clumsily) how a sex characteristic is male. In Harry Benjamin’s words, “where there is sperm, there is maleness.” But in the realm of Meaningless Sex, maleness isn’t connected to sperm. Some males have testicles; others don’t; some females have testicles. How can surgery bring a girl’s body into alignment with a male gender identity if “male” is meaningless?

You can’t argue that changing sex characteristics helps someone embody maleness without the anchor of objectively-defined sex. So the ACLU talks about sex – real, biological, sperm-or-egg binary sex – using the substitute term SAAB. SAAB is sex.

Its rationale, from the 2023 Skrmetti complaint:

“The terms ‘sex designated at birth’ or ‘sex assigned at birth’ are more precise than the term ‘biological sex’ because all of the physiological aspects of a person’s sex are not always aligned with each other.”

What, exactly, does SAAB convey more precisely than biological sex? If SAAB is just a reductive label that doesn’t capture the full truth of a person’s sex then why talk about it at all? This sentence just doesn’t make sense. Precision appears to be a cover story for whacking the term “biological sex.”

Step 2 of creating an illusion, according to Strong, is “concealing the secret in plain sight.” The ACLU’s secret is sex. The ACLU hides sex in plain sight by tacking the words “assigned at birth” to it.

Step 3: Control the Judge’s Attention

Next, the magician must “control the audience’s attention away from the secret.”

Aimee Stephens was a man fired by his employer, a funeral home, after he announced he was a woman. The ACLU represented him in his employment discrimination claim, which the Supreme Court decided in 2020. The case is known as Bostock. His legal team included Strangio.

The ACLU’s 2019 brief contained a curious footnote:

“As a matter of accuracy and respect, Ms. Stephens is properly referred to as ‘she’ and ‘a woman.’”

The ACLU was making its most important argument — that its client is a woman — not in the body of its brief, but squished below it in small type next to the words “respect” and “properly.” These cues told the justices that they were receiving an etiquette lesson. The ploy worked. In a decision authored by Justice Neil Gorsuch, the Supreme Court referred to Stephens as female with no explanation.

In recent years the ACLU has gone beyond cuing judges away from sex. It actually tells them not to talk about it. From the Skrmetti complaint:

“[T]he Endocrine Society, an international medical organization representing over 18,000 endocrinology researchers and clinicians, warns practitioners that the terms ‘biological sex’ and ‘biological male or female’ are imprecise and should be avoided.”¹

An Obama appointee enjoys the show

Step 4: Reinforce the Judge’s False Assumption

Strong defines “reinforcement”: “Extra information that guides you away from the truth and towards that false story that was created in your brain.” The truth is that Meaningless GI doesn’t have to do with sex (recall step 1); the false story is that it does. This is step 4 of creating an illusion.

The ACLU typically reinforces the false story by listing male and female as examples of gender identities. It also presents sex stereotypes. In the Skrmetti complaint, the ACLU describes its female client who identifies as a boy:

“He cried when his parents tried to make him wear dresses, he did not want to play with dolls or dress-up like girls his age, and he wanted to wear the boys’ costumes in his dance recitals.”

By alluding to sex stereotypes, the ACLU is reinforcing the judge’s false assumption that gender identity is a person’s sense of their sex. (Even as its expert witnesses eventually testify that being trans is not about gender nonconformity.) Gender identity is a real psychological feeling about a real biological fact, the judge thinks. A girl can have a male one.

But wait – why is this razzle dazzle necessary? Why doesn’t the ACLU just use Classic GI and rely on some version of objectively-real sex, like Spectrum Sex? Let’s listen to some podcasts.

The Mind of a Magician

Chase Strangio started working at the ACLU in 2013. Since then she has shared many thoughts with the public.

Sex and Gender Identity

In 2019, Strangio sat for a philosophical, legal, and personal conversation about gender with the journalist Chris Hayes. In it, she did not use the term “gender identity.” Nor did Masha Gessen quote her saying “gender identity” in a 2020 profile. It didn’t come up in a lengthy 2021 Medium post, or a 2023 interview with Hayes…

But in 2020 Strangio explained her feelings about gender identity in an oral history for the University of Minnesota:

“I sort of regret the emergence of gender identity as this entire separate thing from sex, and wish that we [ACLU lawyers] had just sort of said, well, there's sex characteristics on the body, there's assumptions about sex and behavior, there's identification that we have. All of them are socially, culturally, and politically contingent, and take on meaning as we talk about them and interface with systems of power.”

Though she conceals “sex” in SAAB in court, she uses the term freely here:

"There is something that we can call sex or gender, just fucking pick one, and it is always going to be in flux and contingent upon context."

Strangio’s dismissiveness toward gender identity aligns with the cognoscenti, i.e., her fellow trans New Yorkers. MTF Andrea Long Chu, who won a Pulitzer after announcing “sissy porn did make me trans,” wrote in March:

“The left … has hung trans rights on the thin peg of gender identity, a concept clumsily adapted from psychiatry and strongly influenced by both gender studies and the born-this-way tactics of the campaign for marriage equality.”

Nonbinary Gessen mused in 2017 about her own decision to use T:

“True gender (whatever that means) didn’t have much to do with it, but choice did.”

Paisley Currah, a longtime FTM activist and political scientist, conceptualized sex without gender identity or material reality in 2022:

“I decided [for my book] I was going to … simply define sex as the result of a government decision. Whether you’re M or F, or more recently X, that’s an output of the government, not an input.”

Strangio v. Journalism

Strangio’s claim to fame is a string of 2020 tweets about Abigail Shrier’s book Irreversible Damage, which had just been published:

“Abigail Shrier’s book is a dangerous polemic with a goal of making people not trans … Stopping the circulation of this book and these ideas is 100% a hill I will die on.”

From Strangio’s 2023 interview with Hayes, after discussing drag bans:

“So much of what needs to happen is a disruption in the discourse. We absolutely need to change how we're talking about it because the media conversations, the conversations we're having in our schools, in our communities, are fueling this set of material and political consequences.”

The same year, GLAAD attacked the New York Times in an open letter for its “irresponsible, biased coverage of transgender people,” noting that “LGBTQ … youth … say debates about trans equality negatively impact their mental health, which is a contributing factor to the high suicide rates for LGBTQ youth.”

Strangio took to MSNBC to drive home the message (neither she nor the ACLU had signed). She said NYT’s coverage made it sound like gender medicine was a “conspiracy” where “children are being harmed,” which led to legislation against PGM.

In February Strangio lashed out on Instagram after NYT published a detransitioner piece by Pamela Paul:

“Within 4 days of publication Paul’s piece was cited by Idaho officials in federal court … in the state’s defense of their anti-trans law banning this medical treatment for minors.

“The distortions and the false debate are causing immediate and severe material harms that will be felt for generations.”

To Brief or Not to Brief?

Strangio started her career as a “scrappy” legal aid lawyer representing individual trans people and organizing them at Sylvia Rivera Law Project (SRLP) in NYC. She’s nostalgic for that work. From the 2020 oral history:

“At SRLP, being around all trans people, we talked about our like health care and hormones and surgery and our mental health care, and we shared prescriptions and we gave each other shots and – there was that. And that is definitely not at the ACLU [laughter] or at least wasn't my many first years there.”

But Strangio doesn’t idealize the legal work of SRLP:

“I believed, in law school and at that time, that SRLP was sort of the answer to how to do law in a way that minimizes the violence of the legal system. I will say I no longer believe that about SRLP.”

Strangio sometimes makes astute points about the inherent sell-out nature of being a lawyer. This next quote is about movements to abolish the police, but to make it more palatable to my readers I’ve replaced some nouns:

“If you think about something like a movement organized to abolish [gender medicine], you know, if you start to engage with the law, then you're immediately in reform land. Then you're starting to go to meetings with the [medical licensing board], you're starting to go to meetings with the [gender doctors], you're starting to sue the [gender doctors] and then have private settlement discussions that you can't share with the [detransitioners], putting you both at odds, and taking the power away from the people who have been building the power.”

Calling the legal system “violent” is a frequent refrain of Strangio’s. It’s hard to pin down what she means beyond expressing a general cynicism about organized society (“legal work enforces systems of power that often harm Black and Brown trans people the most”). I think this is a start:

“I see how these particular trade-offs end up hindering other things, like organizing, for example. Or base-building and power-building, because of the nature of creating a coherent legal narrative.”

Sometimes you say things to judges about a group of people that they might not say about themselves, choose plaintiffs who aren’t representative, or invent an entire fake “medical” concept like gender identity – I think that’s what Strangio means. Legal practice is violent toward truth. 

For example, the ACLU favors “binary” trans plaintiffs who want to be treated as the opposite sex rather than tear down sex categories, even though Strangio and perhaps her colleagues hold a nonbinary worldview. In the 2020 oral history, Strangio fretted about that choice:

“We can convince ourselves that, oh, once we get into those [sex-segregated] spaces, we start to break them down, but that's also what we said about marriage. ‘Oh, let queers in and we'll blow it up from the inside,’ and that did not happen.”

Nonetheless, Strangio thought ultimately the ACLU’s lawsuits were achieving something: 

“Even though the binary is existing in the work that we're doing and we're talking about, ‘oh, trans women are women,’ and thereby reifying the category of woman, we're also sort of destabilizing it at the same time by saying, well, what do we mean, when, and why?”

Strangio in 2020

Becoming

Strangio shared her origin story in the 2019 Hayes interview:

“I sort of was grasping for some sense that I existed in the world, but I could never see it reflected back to me. And then I think it was really in sort of my political organizing after college, as I became involved in prison abolition work, which there's so many queer and trans people in that work, that I started to meet actual trans people, and this was in Boston. Between 2005 and 2007 is when I really started to sort of come out as trans. But I wasn't a super binary person. I wasn't like, ‘I am a man, and I am finally realizing that.’ It was sort of a slow progression of, ‘I realize that I can have bodily formations that exist sort of in the liminal space between male and female.’”

In the 2020 oral history she described her state of mind during those early years:

“How am I gonna be loved? How am I gonna be safe?”

Trans identity gave Strangio a sense of community and purpose. It also gave her something else. Speaking to Chris Geidner last year:

“There's no universe in which my career would be what it was without this healthcare.”

She might be saying that gender medicine saved her mental health so that she was able to practice law. But it’s funny phrasing. The truth is that she lacked the elite credentials typical of ACLU hires; the org may have been desperate for a trans lawyer (or a lawyer who wouldn’t express ethical qualms about misstating a client’s sex in legal proceedings). If that’s the case, then gender medicine literally boosted Strangio’s career.

The Fight, a 2020 documentary about ACLU superheroes in the first year of the Trump administration, captures a conversation between Strangio and her colleague, Joshua Block. At this point Strangio has been at the ACLU for four years. Block suggests that Strangio handle oral argument about Trump’s attempt to expel trans troops from the military. Strangio begs off, confessing that she’s not confident in her courtroom skills. Block says he’s reluctant to speak for the trans community, as a cis man. Ultimately Block handles the argument.

Strangio’s X bio says her pronouns are “He/him or they/them.” In court she goes by Mr. Strangio.

The Agenda

Strangio shares her agenda in the 2020 oral history:

“When I litigate these cases ... my hope is that we can sort of destabilize the assumptions about our bodies and in turn sort of about the spaces that are supposed to be responsive to them. And I think we are starting to see some of that ... to see courts say things like, you know, this notion of biological sex is arbitrary."

I assume the ACLU shares Strangio’s sex-nihilist agenda. That would explain why it refuses to acknowledge sex, even Spectrum Sex – because it wants to abolish legal sex. This would also explain why the ACLU has elevated and promoted Strangio.

(It’s not accurate to say courts of 2020 and earlier were ruling that “biological sex is arbitrary” but it’s interesting that Strangio interpreted favorable decisions that way.)

As to PGM:

“I don't want states to pass laws criminalizing health care for trans youth. Because then how do we get a generation of trans youth to survive, to organize for liberation?”

Sounds like collective struggle. But Strangio’s idea of liberation looks inward. From the 2023 Hayes interview:

“I think it's beautiful and amazing and incredibly liberatory to say, you know what, the world is telling me all these things, my parents are telling me all these things, my school is telling me all these things, but I know something deeper about who I am and how I want to manifest that in my body.”

A little vague. For comparison, Strangio’s forefathers who drafted the International Bill of Gender Rights fought for liberation from the rule or expectation that they undergo penectomy in order to date lesbians and strip down in women’s changing rooms. No objective definition of sex granted penises entree into these spaces, even the dubious Spectrum Sex promoted by sexologists.

Mr. Strangio Goes to Washington

Asked recently how she felt about presenting her case before a conservative Supreme Court, Strangio invoked liberal Supreme Court Justice Sonia Sotomayor (I couldn't verify that Sotomayor said this):

“[Sotomayor] was asked about, well, what is your advice to advocates who are going up before a court in which they're going to lose? And I think part of her answer that resonated is, at the end of the day, as an advocate, your job is to show your client that you are fighting for them.”

That’s not an advocate’s job. How about securing a strong dissent that could become controlling in the future? Showing the justices that their preferred outcome will have unintended consequences, so they’ll write a narrow decision? Swinging for media coverage that galvanizes the public? 

Strangio is putting on her magic show not for judges but for her client, the LGBTQ community. She dreams of winning a court order abolishing the binary because that will be the “magic moment” (step 5 of the illusion) when she can say to her comrades: look, all that silly handkerchief-waving about gender identity was a trick. I was fighting for a world without sex.

On December 4, the justices of the US Supreme Court should demand that Chase Strangio explain what makes a beard male. If they do, the illusion will crumble. As Strangio told Chris Hayes in 2019 about her own gender:

“When you aren't believed, then the more you're challenged, the harder it is to explain.”

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1. The 2017 Endocrine Society guideline cited by the ACLU was drafted by a committee of less than a dozen people, all but one of whom were leaders in WPATH, and it was not reviewed beyond that group, according to Paul Hruz’s expert report in Skrmetti.