The "Dyke" Lawyer Who Attacked the Sex Binary in 1979

Does this mean feminism is bad?

“And in the dream world

There is never too much loving between women, 

There is never too much loving between men, 

…

Lesbians, gay men, forgive, comprehend, hug back

And the cynics learn to swim

In tears of joy.”

–Mary C. Dunlap, Untitled (1984)

Shrinks made up the concept of “gender identity” – a totally subjective “sense of belonging to a particular sex” – in 1964. Gender doctors immediately adopted it.

Thirty years later gender identity suddenly became a legal concept. In 1994, trans activists in San Francisco and New York demanded it be enshrined into civil rights law as a protected characteristic. They were defining the term exactly as the doctors and psychologists did. Today gender identity pervades American law.

How did gender identity leap from the medical office to the law books? In this post I examine a clue: a 1979 essay by the feminist lawyer Mary Dunlap. She argued that the state shouldn’t classify people as male or female. Instead, everyone should choose their own legal sex. After her death in 2003, her former student fawningly described this vision as “utopian.” It had become popular with trans activists.

After putting Dunlap in context, I’ll use her story to explore whether her generation of feminists is culpable for today’s teen mastectomies.

Big Collar Feminism

Mary Dunlap earned her law degree from the University of California, Berkeley in 1971, when fewer than 10% of law students nationwide were female. In the footnote of a law review article in 1989, she described herself:

“I am the ‘lesbian’ of Sapphic poetry, whether or not I am fortunate enough to act out one of the poems. … My sexual orientation is … chosen; it goes much deeper than my sexual longings or experiences, to an essential part of myself which is woman-centered and woman-oriented in a way that I elect to call and permit others to call ‘lesbian’ or ‘dyke.’”

The lawyers of Equal Rights Advocates in the 1970s

With a grant from the Carnegie Foundation, Dunlap and two classmates founded Equal Rights Advocates in San Francisco in 1974 – a feminist legal nonprofit that still stands today. Her friend and colleague Wendy Webster Williams described Dunlap’s achievements in 2003:

“She developed a sexual orientation class that she taught at several Bay Area law schools. She represented an air traffic controller discharged from the military because of her sexual orientation; a pregnant school teacher who was sent home on mandatory maternity leave … a [UC Berkeley] professor in her sex discrimination case for denial of tenure; women seeking to be firefighters in the San Francisco Fire Department; and the Gay Olympic Games in its fight to keep the word ‘Olympics’ in its name. She continued to write – law review articles, poetry, a memoir.”

Beware of litigators with a creative side.

Fems in Disarray

Women of Dunlap’s generation weren’t monolithic when it came to trans issues. 

In 1977, the editors of DYKE Magazine ran a feature:

“Can Men Be Women? Some Lesbians Think So!”

The DYKE editors were horrified by male transsexuals claiming to be lesbians – and by lesbians taking the men’s side. They interviewed a female psychologist and presented research to help their readers fight back:

“We need to develop more than just a gut reaction. We need information about transsexuals which, until now, in the women’s movement, has been given to us by self-serving transsexuals and their all too sympathetic Lesbian supporters.”

In a transcribed conversation, editor Liza Cowan characterized her peers:

“There are lots of Lesbians who genuinely do not understand why this is a problem. The idea is, who cares? … So what, it does not hurt us.”

She got inside the mind of her trans-inclusive sisters:

“[T]he definition of a woman is someone who is oppressed. You understand each other through your oppression and that is the sum total of who you are, that you are oppressed. I think that this is very common in the Lesbian movement.”

The DYKEs were responding in part to the controversy over Olivia Records, a record label formed by lesbian separatists that billed itself as women-only. It had knowingly hired a trans-identified male sound engineer named Sandy Stone. Feminists and trans-identified men argued about his inclusion for years.

Another pro-trans lesbian of the 70s was the tennis star Billie Jean King. When MTF Renee Richards sued the US Tennis Association for banning males from women’s competitions, King swore an affidavit in support of him. After he won the lawsuit, she cashed in by partnering with him in women’s doubles.

(I’m mixing together 1970s feminists, lesbians, and female athletes. Well.)

Janice Raymond published her TERF classic The Transsexual Empire in 1979, when she was a young academic. Though the mainstream press was diligently promoting gender doctors’ claim that transvestic fetishists and transsexuals were separate species, Raymond (a feminist lesbian) made an astute observation:

“[W]hat they all have in common is that they wear women’s clothes. Further, they wear the kind of hyperfeminine women’s clothes that many women would never wear.”

Gloria Steinem cited Raymond approvingly in her 1977 essay Transsexualism – which she implied she only wrote because interviewers kept hounding her (and every other glam feminist) about the subject. Steinem saw transsexuals as tragic victims of a rigidly sexist culture that wouldn’t let them live as they wanted in their natural bodies. She concluded:

“Feminists are right to feel uncomfortable about the need for and the uses of transsexualism. Even while we protect the right of an informed individual to make that decision, and to be identified as he or she wishes, we have to make clear that this is not a long-term feminist goal. The point is to transform society so that a female can ‘go out for basketball’ and a male doesn’t have to be ‘the strong one.’ Better to turn anger outward toward changing the world than inward toward mutilating our bodies into conformity.”

In 1995 Steinem referenced this essay proudly but in 2013 she got in line: “what I wrote decades ago does not reflect what we know today as we move away from only the binary boxes of ‘masculine’ or ‘feminine’ and begin to live along the full human continuum of identity and expression.”

Trans Activism in 1979

Trans activists of this era did not try to enshrine the term or general idea of “gender identity” into law. 

In 1975 they scored a victory when the city of Minneapolis banned discrimination for “having or projecting a self-image not associated with one’s biological maleness or one’s biological femaleness.” This did not grant people the right to be treated as whatever sex they wanted, but rather the right to look however they wanted.

In California, legislators introduced a bill in 1983 that would ban discrimination against people “medically defined as transsexuals.” The ACLU of Southern California and the Gateway Gender Alliance (a transvestite club) campaigned for the bill, which never passed. The bill did not aim to let people choose their sex.

Court decisions of this era don’t reference “gender identity” but rather “gender” to describe transsexuals’ feelings.

When arrested for cross-dressing, defendants sometimes argued for a medical exemption to the law – including some in Chicago represented by the ACLU. In family court, trans people argued to be treated as the opposite sex because of the medical operations they’d endured – not because of their “gender identity” or how they felt.

Dunlap’s law review article didn’t use the word gender, argue for appearance-based protections, or treat transsexualism as a medical condition. Though she explicitly advocated for the rights of transsexuals, she wasn’t building on the trans legal theories of her day.

The Constitutional Rights of Sexual Minorities: A Crisis of the Male/Female Dichotomy (1979)

Dunlap’s article on “sexual minorities” was published by the Hastings Law Journal, which was based at the UC Hastings College of the Law in San Francisco. Like most law reviews, it was student-run.

Dunlap’s essay argues that the state shouldn’t designate people as male or female based on their “genital anatomy”:

“[T]he presumption that two, and only two, distinct and immutable sexes exist amounts to a questionable premise, if not to an ignorant prejudice.”

Dunlap doesn’t back up this point. She just drops footnotes to the anthropologist Margaret Mead, the philosopher Simone de Beauvoir, The Feminine Mystique, a psych article, and a French text. None of these works are about biology.

In other words, Dunlap never argues that the state’s understanding of sex is wrong. She just doesn’t like “the effect” its recognition of biology has “on the academic, emotional, occupational, and social options available to the individual … and on the privacy and due process rights of sexual minorities.” 

Defining that term in a footnote:

“The term sexual minorities encompasses generally homosexuals, transsexuals (persons genetically of one sex who have a strong psychological identification with and urge to belong to the other sex), and other persons of nontraditional sexual identifications … [and] may include women, single parents, and others who are rendered sexual minorities by legal and societal treatment.” 

Dunlap doesn’t argue that “the two-sex presumption” should be abolished, but that “a vigorous and expansive reexamination of [it] is urgently needed[.]” She suggests a system of “individualized sex identification” would be superior, using cross-dressing convictions as an example:

“Quite a different result would occur … if the two-sex presumption in law were replaced by a principle that one’s sex could be determined by that person, that the choice of sex were not limited to male or female, and that the person could make different determinations as to sex identification for various purposes, such as education, marriage, living arrangements, or personal physical appearance.”

This would require immense bureaucracy. Why doesn’t she just say sex designations should be abolished? Or cross-dressing laws should be abolished? Because law review articles have to concoct a razzle-dazzle theory, and too many people by 1979 had already suggested abolishing cross-dressing laws.

Throughout the piece, Dunlap cites evil laws that are enabled by the two-sex presumption:

1. Public schools may divide students by sex for contact sports like boxing, wrestling, rugby, and basketball.

2. Employers may discriminate by sex where sex is “a bona fide occupational qualification reasonably necessary to the normal occupation of that particular business …” such as for guards in a maximum-security male prison.

3. “Personal physical appearance” – I think this refers to workplace dress codes.

4. The state may ban same-sex sex.

5. The state may limit marriage to opposite-sex couples.

6. The state may ban people from using public restrooms designated for the opposite sex.

7. Men may be drafted but not women.

8. The state may ban cross-dressing.

9. The state may fire employees for being gay if there is a nexus between their sexuality and the job.

10. The state may “force persons of a particular genital makeup to … bear unwanted offspring[.]”

Several of these laws have since fallen (4, 5, 8, 9) or been narrowed (2, 3). The two least controversial ones are now on the ropes due to trans activism (1, 6). The last item grossly misstates federal law, which at the time protected the right to an abortion as a constitutional right. It was nature that discriminated against women on that score, not the state.

Dunlap forgets to discuss prison bunk assignments.

Dunlap argues that the state inevitably invades sexual minorities’ privacy in the course of enforcing its two-sex presumptuous laws. She relies heavily on the cross-dressing example.

Dunlap concludes (footnotes omitted, emphasis added):

“[U]nder a system that permits individualized sex identification, the past exercises of the legal power to enforce a male/female order might be discovered to have played a primary role in retarding the progress of creativity and diversity … [P]erhaps tomorrow’s journeys into extraterrestrial space, or earth creatures’ own ventures into the technology of cloning and test-tube productions of new life forms, or even today’s silent mutations, will rapidly and vividly bring the nascent potentials of individual sex definition, free of the present paradigm of two sexes, into focus in the constitutional galaxy.”

A footnote explains how aliens will help us understand sex isn’t binary:

“From the standpoints of both science and art, the probability that extraterrestrial life forms are genitally distinct ‘male’ and ‘female’ seems about as likely as that those forms will speak Earth languages and eat Earth foods.”

Sexually trimorphic martians trust The Cut to tell their story

What Was Dunlap Thinking?

Second wave feminists like Dunlap beat back the idea that biology condemned women to helplessness and stupidity. It was vital work; I wouldn’t want to live in a world where they hadn’t done it. But sometimes they swung the bat against biological determinism a little too hard. For example, when Dunlap called her sexual orientation a choice she was echoing the radicalesbians, whose view of attraction would one day be refuted by science. 

The legal scholar Doriane Coleman, in her new book on trans issues, characterizes that era’s paradigm as “sex skepticism.” She fears the trans activists are driving us into a world of “sex blindness.” That term that might also apply to Dunlap’s essay.

I don’t read Dunlap as a trans activist so much as a bog standard 1970s feminist who felt skeptical of all distinctions based on sex because of their nasty pedigree — and then wrote a fanciful essay that took the concept too far.

The DYKE Magazine editors had more nuanced views of sex differences. Cowan:

“What galls me so much is that we are just beginning to understand what it means to be a woman, really just beginning to be able to understand that there is something different that we are not fully conscious of yet about what what it means to be a woman, and these men say that they are women, meaning that they know what it means to be a woman, and they are it. And now they want to participate in defining and creating women’s culture.”

Cowan was speaking of women’s social lives and psyches, but the same could be said about biology. Because men’s bodies had been studied more, in the 1970s we were still defining and creating women’s healthcare. In fact we still don’t know enough about women’s anatomy, and we haven’t worked out how much of the difference between sexes (e.g., in terms of career choices) are due to nature vs. nurture. Just as trans-identified men trounced all over women’s culture in the 1970s, today trans censorship may be obstructing study of women’s health and sex differences.

Anyway, I quote Cowan to show 1970s feminists did not all think that men and women were exactly the same. In fact, Dunlap probably didn’t believe that either – she just thought it might be in women’s interests to pretend otherwise.

Gender Identity Evolves

The trans legal juggernaut that we know today jolted to life in the early 1990s, as male fetishists rapidly networked and organized (stay tuned). In 1993, the new International Conference on Transgender Law and Employment Policy met in Houston, Texas, and adopted the International Bill of Gender Rights (IBGR).

Right #1 was “The Right to Define Gender Identity”:

“All human beings carry within themselves an ever-unfolding idea of who they are and what they are capable of achieving. The individual’s sense of self is not determined by chromosomal sex, genitalia, assigned birth sex, or initial gender role. Thus, the individual’s identity and capabilities cannot be circumscribed by what society deems to be masculine or feminine behavior. 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.

“Therefore, all human beings have the right to define their own gender identity regardless of chromosomal sex, genitalia, assigned birth sex, or initial gender role.”

The next year, activists started fighting to make “gender identity” a protected characteristic in anti-discrimination law.

Today gender identity is all over the law books. Blue states protect people based on gender identity alongside traits like race and sex; they also ban therapists from seeking to change “gender identity.” Several federal laws also protect people based on their gender identity, including the Hate Crimes Act and Violence Against Women Act. Lately the Biden administration has crowbarred “gender identity” into regulations involving girls’ sports, healthcare, and workplace discrimination. 

The gender identity laws are widely understood to mean that everyone is entitled to be treated like whatever sex they feel like. This is what Mary Dunlap called for.

Blame Feminists?

Conservatives and misogynists often take to X to spout off – or slyly insinuate – that feminism is the root of all trans. That’s because some of the most iconic campaigners for women’s rights, the second wavers who came up in the 1970s, minimized sex differences.

Mary Dunlap was an influential second waver who proposed that the law ignore biology. Later trans activists cited her idea. But her story doesn’t show that feminists caused the rise of trans. It actually illustrates how irrelevant feminism was to 20th century trans activists.

The men who drafted the IBGR didn’t cite Dunlap. They were probably inspired by the gender doctors who preceded her.

In 1997, Hastings Law Journal – the same forum that published Dunlap’s grand vision – printed an article by the FTM political scientist Paisley Currah, “Defending Genders: Sex and Gender Non-Conformity in the Civil Rights Strategies of Sexual Minorities.” Currah cited Dunlap’s Sexual Minorities reverentially to support her own argument that gay people should abandon any advocacy that didn’t center trans interests.

In Currah’s words: 

“[If] the rights claims of lesbian and gay people rely on the deployment of arguments, either implicit or explicit, that reinforce hegemonic United States gender norms – including the notion that there is a predictable, normative relationship between visible genitals, gender identity, and gender expression – any ensuing victory might turn out to be something of a pyrrhic one, not only for transgendered and gender-variant people but also for those lesbian, bisexual, and gay individuals who are not transgendered or gender-variant.”

Currah was wrong, of course; gay people ultimately won their rights without queer theory. The intellectual thuggery on display here was typical of the crew Currah rolled with, lesbian FTMs who disdained other lesbians.

Trans activists didn’t learn from 1970s feminists. They used these idealistic women, pouncing on their philosophical missteps, citing their work to launder their own twisted ideas, and exploiting their sympathy. 

The Olivia Records lesbians, Billie Jean King, and Mary Dunlap helped neutralize arguments that the trans project was sexist. They should be judged for that. But I don’t think they made a difference.

As I’ve written before, the media of the 20th century was friendly toward transsexuals and gender doctors.

In 1995, Esquire published a feature on transsexualism by John Taylor called The Third Sex. Taylor documented the “courage” of MTFs who wanted nothing more than to be accepted as lesbians. In his portrait, feminists were irrationally hostile. He analyzed the women who objected to an MTF attending MichFest, a women-only festival where attendees sometimes hung out naked:

“Among [their position’s] more obvious ironies was that, while feminism was founded on the notion that ‘biology is not destiny,’ many feminists will insist, at least when it comes to transsexuals, that biology is destiny; a man can never really become a woman. But that contradicts another central tenet of feminism: that gender is socially constructed.”

Taylor apparently didn’t ask any feminists to resolve the “ironies” he perceived. Nor did he mention the feminists of his day who supported the MTFs (e.g., members of the “Lesbian Avengers” like Sarah Schulman) or took a nuanced position (Steinem). The piece included no interviews with women.

Taylor identified the real victims of sexism:

“Women are applauded for taking on traditional male roles, for crossing boundaries to attend the Citadel or compete in the America’s Cup. But men who aspire to the feminine are seen as perverted and repulsive.”

It appears Taylor was ignorant of transvestic fetishism:

“I began to ask [two MTFs] about the various explanations for transsexuality, but, I was surprised to learn, neither Yvonne nor Merissa was much interested in discussing them.” 

Later: 

“[A] central feature of human experience is the attempt to explain human experience. Transsexuality should be no more exempt from this enterprise than masculinity, so I was mystified by Martine [Rothblatt’s] refusal to admit that a cause might exist for it.”

Taylor could have found the answer in the DSM-IV. But somehow he retained his innocence even as one of his subjects, MTF Phyllis Frye, explained why (in his opinion) Texan men partied in cowboy get-ups:

“They feel sexier when they do it. They’re acting out their fantasy of themselves. Some do it occasionally, some do it all the time. When you ask them about it, they say they’re expressing their personality. But it’s as fetishistic as any cross-dressing. We call them transwestites.”

Second wave feminists like Dunlap got some things wrong. It didn’t matter. Transsexuals had allies in the media and they heard what they wanted to hear.