The ACLU's Original Sin
In 2007, the ACLU said it could prove gender identity had "biological influences"
The ACLU filed Schroer v. Library of Congress in 2005, in Washington, DC, on behalf of a man who alleged the federal government had denied him a job because he was trans.
In the lawsuit, the ACLU claimed Diane (David) Schroer was a woman, full stop, no qualifiers, even before genital surgery, because of his gender identity. This was revolutionary. A few years into the litigation, the ACLU started making a more insidious false claim: that gender identity had a basis in biology.
The ACLU also argued that gender identity was an “aspect” of sex.
In this post I’ll situate us in 2005 by explaining what ideas and incentives were at play. Then I’ll introduce you to Schroer’s expert witness and the liberal judge who was eager to learn from him. The face-off with the government culminated in a dramatic trial. Afterward, the ACLU walked away with a new blueprint for pursuing “trans rights.”
All-Powerful Gender Essences Weren’t New
The idea that some people have an inner gender at odds with their body dates back almost to the beginning of gender medicine in the US, when Harry Benjamin and John Money put it front and center. The “classic transsexual” of the 1960s-70s needed to change his body because his gender or gender identity was implacable. Back then the term was wielded by medical doctors who insisted it was a “medical” concept.
By the late 1980s, a new gender vanguard was taking a more realist view. Up-and-comers like Ray Blanchard and Kenneth Zucker (both psychologists in Toronto) saw the desire to change sex as a mental problem.
Schroer was filed as the pendulum swung back. Gender doctors would soon evangelize for the idea of “trans children” born in the wrong body.
Obfuscating Sex: Also Not New
Benjamin, an endocrinologist, knew sex was binary and immutable. “No actual change of sex is ever possible,” he wrote in his 1966 manifesto, The Transsexual Phenomenon. But in the same volume he wrote, “the thought clearly emerges that what we call ‘sex’ is of a very dubious nature and has no accurate scientific meaning.” He told a colleague that he’d testified to a small town court that “there were all kinds of interpretations of sex.”
A psychologist testified to something like this in MT v. JT (New Jersey, 1976). In the court’s words:
“He demonstrated through slides the various methods by which scientists define whether a person is male or female.”
In 1983, the gender psychiatrist Richard Green persuaded a federal judge in Chicago that, in the judge’s words, “there is no settled definition in the medical community as to what we mean by sex.” The case was Ulane v. Eastern Airlines – more on that in a minute.
I don’t think these gendercrats argued that sex didn’t exist, or that humans weren’t sexually dimorphic. They were saying the word “sex” could be defined in various ways – because they and their gender brethren defined it in various ways.
Big Money: New
Schroer was filed by the ACLU. Big civil rights orgs had only adopted “transgender rights” about ten years earlier, and they started filing lawsuits on trans people’s behalf around 2000. I think Schroer was the first trans rights lawsuit initiated by the ACLU’s national office, and that it marked the debut of a radical “trans women are women” framing.1
“Transgender”: New
For decades the byword was transsexual. Arguments for transsexual people’s rights tended to hinge on their altered genitals, or else their intention to undergo genital surgery.
By contrast, the transgender movement that rose in the 1990s fought for people who …led funky gender lives. Many of them did not want genital surgery. So their lawyers had to argue gender identity mattered more than genitals.
Schroer had been discriminated against before surgery. This might have been a plus for the ACLU as it shopped for its first plaintiff; they didn’t want to argue, as lawyers did in the 1970s, that their client should be treated as a woman because of the hole in his pelvis. To win a ruling that might influence future cases about transgender people, they wanted to argue his gender identity was all that mattered.
So the building blocks of a hardcore lies-based legal strategy were around prior to 2005, but that year was when lawyers had the means and motive to put them together.
Schroer v. Library of Congress (Washington, DC, 2009)
The Facts
Colonel David John Schroer boasted a number of stereotypically masculine achievements – suffice it to say that his gender trajectory was in the Renee Richards mold. One day in middle age, David decided to become Diane.
The ACLU asserted in its complaint that “gender dysphoria establishes itself very early” while skirting around the age at which Schroer decided he was a woman. “Over time … [Schroer] and the medical professionals working with her determined that the gender designation assigned to her at birth does not conform with her gender identity.”
Mid-transition Schroer interviewed for a counter-terrorism job with the Library of Congress. He still looked like a normal army guy, but after they made an offer he said he was about to start pretending to be a woman. The LOC revoked his job offer. In 2005, Schroer sued for employment discrimination.
The LOC didn’t dispute that it had discriminated against Schroer for being “transgender”; it just argued that was legal.
The Spin
The ACLU never conceded that its client was male or had ever been male. In its 2005 complaint, it asserted he “was classified as male” at birth. In fact, the ACLU wouldn’t even admit that he looked male before his transition:
“Upon information and belief, the members of the interview committee believed that Plaintiff was a man because, inter alia, the name on her application was ‘David J. Schroer’ and because she was dressed in traditionally masculine attire during her interview.”
Deep into the document, while laying out the laws it claimed LOC violated, the ACLU pulled the trigger:
“Plaintiff is a woman, although Defendant perceived Plaintiff to be a man”
In this Courtroom We Believe in Science
Title VII bans discrimination on the basis of sex and doesn’t say anything about transsexuality, gender, etc. The Supreme Court had ruled in 1989 that Title VII’s ban on sex discrimination implied a ban on sex stereotyping. Schroer argued that LOC had dinged him for failing to conform to stereotypes: “it perceived [him] to be a man who did not conform with gender stereotypes associated with men in our society or because it perceived [him] to be a woman who did not conform with gender stereotypes associated with women in our society.”
Those “stereotypes” about women would include “not having a male body.”
Early on in the litigation, in 2006, the judge telegraphed that he was skeptical of the stereotype argument, but he’d rule for Schroer on different grounds if Schroer could show gender identity (referred to as “sexual identity”) had a biological basis. The judge seemed hopeful:
“If, as some believe, sexual identity is produced in significant part by hormonal influences on the developing brain in utero, this would place transsexuals on a continuum with other intersex conditions … in which the various components that produce sexual identity and anatomical sex do not align.”
And intersex people were protected from discrimination “on the basis of sex” under Title VII.
The judge repeatedly cited Ulane v. Eastern Airlines – but not the 1985 appellate decision by that name which had resolved the case by rejecting the transsexual’s argument. Rather, he cited the 1983 lower court ruling in favor of the transsexual that had later been overturned. Citing an overturned decision is very weird.
The Schroer judge wrote that perhaps in the intervening years “scientific observation” had “confirmed” the overturned-Ulane view that sex was “‘not a cut-and-dried matter of chromosomes.’” He seemed to assume gender science had advanced since 1983, and that it had advanced in the direction of the ACLU’s position. I wonder if he was inspired by the gay marriage movement, which at the time (legitimately) pointed to recent studies showing homosexuality was inborn.
Up to that point, the ACLU’s filings had referred to gender identity disorder as “medical,” but had not claimed it was rooted in biology. This echoed the 1970s cases, where gender doctors asserted transsexuality was “medical” but didn’t dwell on the exact etiology.
The judge – a Clinton appointee in his 60s – suggested the parties retain expert witnesses to opine on “the scientific basis of sexual identity in general, and gender dysphoria in particular.” If Schroer could connect gender identity with hormone imbalances, or perhaps with any biological reality at all, he’d be home-free.
Walter Bockting, Not a Doctor
Schroer retained Walter Bockting, a Minnesota psychologist who’d trained in Amsterdam in the 1980s, to testify as an expert on gender identity disorder. He held a PhD and no medical degree.
In a 2007 ruling the judge incorrectly referred to Bockting as a “physician.” In his 2009 decision the judge described Bockting as “a tenured associate professor at the University of Minnesota Medical School who specializes in gender identity disorders.” This was less wrong, but still omitted his discipline: psychology.
The judge might have drawn this description of Bockting’s job from the ACLU’s brief, which didn’t disclose what Bockting was a professor of.
In its filings, the ACLU constantly used the term “medical.” I imagine that if it could have retained a medical doctor to vouch for its claims about gender identity, it would have.
In 2006, Bockting submitted a report claiming that “sexual identity” had four components, of which “gender identity” was “the most important and deciding factor in sex assignment.” It was “a person’s basic sense of belonging to one sex or the other[.]” He cited his own work, as well as the work of gender daddies like John Money.
The also-ran sexual identity components were “natal sex,” “social sex role,” and “sexual orientation.” Bockting defined transsexuality as a subtype of transgenderism, with other subtypes being “transgenderists” and “crossdressers/transvestites.” He never stated whether trans-identified people actually were the opposite sex, and didn’t refer to Schroer at all.
As to the biological basis of gender identity:
“What causes gender identity disorder remains unknown. Biological factors (hormonal, genetic, brain structure) and psychosocial factors (culture, upbringing) most likely interact, but research is still in its infancy and findings to date are inconclusive.”
The research was not in its infancy. Gender doctors doggedly pursued the biological basis for desiring sex change starting in the 1950s; they were supported by world-class universities like UCLA, Johns Hopkins, and Stanford.2 The judge had referred to the prenatal-hormone hypothesis, which was proposed at least as early as 1973. One of the studies finding no support for it had been published in 1999, and it referred to studies reporting the same result throughout the ages.
Nevertheless, Bockting’s report went on to list theories about how biology might cause gender identity disorder, including (without citation) via prenatal hormones.
A few months after his first report, Bockting submitted a second. This one claimed “sex” had nine “aspects,” citing Money again. Those aspects were chromosomes, gonads, prenatal hormones, internal genitals, external genitals, “sex of the brain,” “sex of assignment and rearing,” “pubertal sex,” and gender identity.
It was a Mr. Potato Head model of anatomy, in which body parts appeared all over the place subject to no organizing principle. (In humans, the organizing principle is sex.)
Money’s reputation by this point was in tatters. In 1997 he was discredited by an academic study and a Rolling Stone article following revelations about his horrific experiment on David Reimer, a boy whose penis had been maimed in infancy. He’d also defended adult sex with children. So why did LOC let Bockting get away with citing Money?
Because its own expert witness also cited Money.
Chester W. Schmidt, Coworker of John Money
The LOC’s expert witness, Chester W. Schmidt, was a psychiatrist who’d held various research and clinical positions related to sex/gender at Johns Hopkins since 1971. He must have worked with Money.
Schmidt “identified the term ‘sex’ as a biologic reality which refers to the biologic status of a fetus or newborn with regard to their chromosomal configuration - ‘xx’ genes for females and ‘xy’ genes for males.” (I’m quoting from one of LOC’s briefs.)
The chromosomal model of sex, depending on how it’s explained, can sound like a variation on Mr. Potato Head: the parts don’t have anything to do with each other, but one part is the most important.
Schmidt cited Money, and the ACLU gloated about it:
“Bockting explained the bases for his opinion, which includes the pioneering work of Dr. John Money, whose stature in the field is recognized even by [the DOJ’s] expert, Dr. Chester Schmidt, and whose work forms the basis for many of the opinions offered by Dr. Schmidt.”
Do you guys have that science I asked for?
Recall that the judge was excited to learn about the biological basis of gender identity. Here’s the ACLU responding to that call in 2007:
“[A]t a hearing, Plaintiff would show that, as a matter of scientific fact, gender identity is in fact ‘biologically influenced.’ … Testimony at a hearing would show that the scientific consensus is that gender identity is a product, at least in part, of certain biological influences and developments such as hormonal exposure and brain differentiation.”
The ACLU got that hearing – a full trial in 2008. Afterward its post-trial brief addressed biological basis in a footnote:
“As Dr. Bockting explained, even though the specific mechanism(s) has/have not been isolated, the scientific community has concluded that gender identity is the product, at least in part, of biological influences and cannot be explained away as a purely social phenomenon.”
No mention of hormones or brains! What happened to the ACLU’s swagger?
The LOC’s post-trial brief gives us a taste of Bockting’s performance on the stand:
“Notwithstanding the representation made in his expert report [that scientists had never found a biological basis for gender identity], at trial on August 19, 2008 … Dr. Bockting repeatedly testified that there is a biological basis for gender identity. At trial on August 22, 2008 … Dr. Bockting changed his testimony again, admitting that a known biologic determinant for gender identity disorder (‘GID’) had not been established.”
The brief insinuated Bockting changed his testimony deliberately on August 22, as if to low-key retract his lies of August 19. This raises questions. It’s unlikely Bockting learned new things about his field of expertise in those three days. Did the ACLU attorneys advise him he’d crossed some ethical line they were trying to maintain? (Lawyers have a duty to correct the record if they know their witness falsely testified.) They probably wanted him to create the impression that a biological basis existed, without actually saying it.
Here’s how the judge handled the ACLU’s flop:
“The testimony of both experts – on the science of gender identity and the relationship between intersex conditions and transsexuality – was impressive. … [But] deciding whether Dr. Bokting [sic] or Dr. Schmidt is right turns out to be unnecessary.”
Crisis averted. The judge ruled in Schroer’s favor based on the “stereotyping” argument he’d previously cast shade on.
(When a study claims to have correlated gender identity with some aspect of biology, always ask [1] whether it controlled for sexual orientation and [2] whether the subjects had taken exogenous hormones.)
Still Waiting on that Science
It may be that the ACLU lawyers didn’t plan to argue for a biological basis when they filed Schroer. They just wanted to toss out some hocus pocus about how “gender identity” was the best part of sex, which didn’t really exist, or whatever. But when the judge implied biological-basis was a winning ticket, they couldn’t resist the temptation.
Bockting served as president of WPATH from 2009 to 2011. He now directs the Program for the Study of LGBT Health at Columbia University.
I don’t think Bockting believes there’s a biological basis for gender identity. Here he is in 2010:
“Transgender includes transgressing and transforming the gender binary and prevailing gender norms. There is no one way of being transgender, and people actualize their transgender identity within a particular sociocultural context. In other words, identity is an interactive social process giving meaning to what a given person’s experience is at a particular time in a particular social context.”
At least one of Schroer’s attorneys, James Esseks, is still with the ACLU. He leads its LGBTQ and HIV practice. The Schroer trial debacle suggests he and his colleagues knew there was no biological basis back in 2008; if not, they should have realized it then.
But Esseks keeps leading courts to believe biology plays a role in gender identity. For example, in a 2017 brief to the US Supreme Court in Grimm v. Gloucester County School Board, he and his colleagues asserted, citing a lobbying group and no particular study:
“[R]esearch indicates that gender identity has a biological component.”
In the 2021 Brandt v. Rutledge complaint, Esseks and his colleagues alleged:
“There is a general medical consensus that there is a significant biological component to gender identity.”
On the stand, the ACLU’s expert witnesses mumble something into their collar about the possibility that prenatal hormones play a role.
The ACLU continues to argue sex doesn’t have a clear, reliable definition. It now cites a 2017 guideline by the Endocrine Society, which is a lobbying association for endocrinologists (who profit off gender medicine). But its opponents finally got a clue. In 2023, Texas called an evolutionary biologist to testify about the sex binary in defense of the state’s ban on pediatric gender medicine. This is a major strategic step forward from relying on gender doctors.
The ACLU still spits the word “medical” over and over in trans cases. Today it seems not to have any trouble finding medical doctors to back up its claims.
Related
I wrote about the ACLU’s failure to persuade a sympathetic judge that gender identity had a biological basis in Brandt v. Rutledge (2023)
I wrote about the ACLU’s corruption under Anthony Romero and its attorneys’ messiah complexes
The ACLU’s National Prison Project represented a transsexual inmate in Farmer v. Brennan (1994), but only once it reached the Supreme Court. That case concerned the state’s duty to protect inmates from violence. The ACLU also filed amicus briefs in trans cases, and its local affiliates were involved in some trans litigation. None of their filings before Schroer, as far as I can tell, stated that trans-identified men were literally women.
Such an important and informative deep dive - couldn't have agreed more, thank you! XX
That 2010 comment from Bockting is a keeper!