The Republicans Who Support Trans Rights (Part 2)

Parents’ rights, moderation, and other obscure Pride floats

We don’t often see Democrats triangulate on trans issues. They either splash out, promising to grant veto power over the Secretary of Education to a trans 9-year old, or they lie (“it’s not happening!”) or evade the question (Kamala Harris: “What is it to you?”). 

Republicans are a different story. While many of them stiff-arm gender identity theory, some go in for a one-shoulder hug. As I wrote in Part 1 of this essay, that seems to have been what Supreme Court Justice Neil Gorsuch was up to when he wrote in Bostock that employers couldn’t fire workers for “being transgender” but avoided defining the term or mentioning gender identity.

In this post I’ll tell the stories of Republican politicians and bureaucrats who support trans rights. They can help us figure out what Gorsuch and other key Supreme Court justices are thinking as they gear up for a term that will include at least one gender blockbuster.

“One of Many Sexual Sins”

To understand where today’s compromising Republicans are coming from, first look at the history of conservatives’ attitudes toward trans. In short, there’s no rich intellectual tradition for them to draw on.

When Johns Hopkins University opened America’s first genital surgery clinic in 1966, the Catholic Archdiocese of Baltimore announced it did not object. Early critiques of gender ideology came from feminists like Janice Raymond and psychiatrists like Jon Meyer and Thomas Szasz – not conservative or religious leaders. 

The Christian Right eventually started denouncing transsexuality, but not in a very philosophical way. They just lumped gender patients with all the other people they didn’t like.

In 1990 Jesse Helms, the notorious Republican senator from North Carolina, inserted language into the Americans with Disabilities Act bill to exclude trans-identified people from protection: 

“[T]he term ‘disability’ shall not include … transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders[.]”

Transsexualism’s neighbors in that sentence give you a sense of how Republicans viewed it. 

In 1996, a director at the Family Research Council referred to transgenderism as “yet another social pathology.” He continued:

''This is deviant behavior that seeks legitimization in the social, legal and political realms. It is part of a larger cultural movement to confuse the sexual roles and to usher in a relativistic mindset concerning sexuality itself.''

In 2009, Focus on the Family objected to regulations protecting trans-identified workers because transitioning was “one of many sexual sins that is outside God’s created intent and desire for us.”

In 2014, the president of the National Catholic Bioethics Center told public radio in Boston that the church opposed pediatric gender medicine:

"If [minors] are surgically mutilated, that clearly would violate their best interests and it probably would not be in the best emotional health to be dressing up as the opposite gender and acting out in that way."

So conservatives saw trans identity as similar to – and similarly evil as – homosexuality and gender nonconformity. They did not notice that this particular sin was yielding profits for the healthcare industry. Until doctors (publicly) came for minors, conservatives did not speak of the “mutilated” as victims.

The conservative reporter Brandon Showalter acknowledged his side’s dereliction in a 2024 review of the latest book by feminist lawyer Kara Dansky. He wrote in the Christian Post:

“[L]efty women blazed the trail when few understood what was occurring. Some sacrificed their careers, friends, social networks, and so much more to tell the truth and they have not received nearly enough credit. Although I disagree profoundly with them on several issues philosophically, we owe them a debt of gratitude.”

The Bureaucrats’ Inertia

Republicans wrote men into women’s prisons in 2012 and passed on the chance to pull them out from 2017 to 2021.

Congress passed the Prison Rape Elimination Act (PREA) in 2003. (My deep dive is here.) It was a vaguely-worded law that left the details to a commission of experts, most of whom were appointed by President George W. Bush or other Republican officials. PREA did not mention trans issues.

The regulations these commissioners drafted protected trans-identified men, including by encouraging prisons (federal and state) to house them with women – even if they had not medically transitioned. The commission evinced no concern for the women forced to live with these men. The regulations went into effect in 2012.

The next time Republicans took over the executive branch was January 2017. Donald Trump’s appointees at the Department of Justice could have issued new PREA regulations. But they didn’t. On the contrary, they backed the “gender identity” policy by subjecting prison staff to trainings by lawyers who lectured them about trans inmates’ vulnerability. The Trump DOJ did update a manual, but those changes were minor and easily reversed when Biden came into office.

Republicans traditionally are not the party of women’s rights. They’ve recently shown callousness toward pregnant women with dangerous pregnancies and hostility toward women who don’t have kids. Just the slightest feminist backbone was necessary to stand up to trans activists who submitted comments to the PREA Commission in 2005. They didn’t have it.

Doctors’ Rights Are Parents’ Rights

As lawsuits against pediatric gender medicine (PGM) bans proceed in over a dozen states, a curious amicus brief keeps appearing on their dockets. The filers call themselves “conservative legislators, former legislators, and activists.” I’ll quote the version they filed in Arkansas’ appeal to the Eighth Circuit on December 13, 2023 and refer to them as amici.

Amici argue that the court should strike down Arkansas’ PGM ban because it violates parents’ constitutional right to make medical decisions about their children. They believe parents “know what is best for their children far better than the government does.”

When it comes to medical decisions, parents know what doctors tell them. But amici ignore the role of doctors in medical decision-making, as though parents approach the issue the same way they think about whether to send their kids to baseball camp.

Amici are right that the US Constitution guarantees parents the right to direct the upbringing of their children. The teams of plaintiffs that bring anti-ban lawsuits typically include at least one parent of a trans-identified kid who is asserting his or her “parental rights.” I’ve treated this argument like a sideshow in my PGM coverage because no judge will find that kids don’t have a constitutional right to receive PGM, but parents have a right to seek PGM for their kids. Judges will either fall for the idea that PGM is real medicine or they won’t.

Who are amici, specifically?

The Arkansas brief is signed by eight Republicans, each from a different state. Ileana Ros-Lehtinan is a former congresswoman from Miami. The rest all serve, or used to serve, in elected positions at the state or local level. Only one is from a blue state: Jordan Willow Evans, a trans-identified man who has served as Town Constable and school committee member in Charlton, Massachusetts.

Their attorneys work in the Boston, DC, and San Francisco offices of the biglaw firm Goodwin Procter.

It’s unclear how these disparate characters found each other and retained Goodwin. I’m guessing that the ACLU orchestrated the whole affair, tapping its local networks in red states for legislators who crossed the aisle to support gay rights in the early 2010s. (Ros-Lehtinan is known as the first Republican in Congress to come out in favor of gay marriage.) In other words, they were probably brought together by their confusion over “LGBT,” and they were handed the “parental rights” flag to wave because it fit a Republican color scheme.

Governors Split the Baby

At least six Republican governors have yielded for trans rights since 2021.

In 2021, Arkansas’ Asa Hutchinson vetoed a bill to ban PGM (the legislature overrode him). He told NPR at the time:

“I wanted to say to my Republican friends and colleagues that we've got to rethink our engagement in every aspect of the cultural wars. … I think this is too extreme for me to sign.”

Governors Doug Burgum (North Dakota), Eric Holcomb (Indiana), and Spencer Cox (Utah) vetoed bills to ban boys from girls’ sports in 2021-22. New York Times:

“Mr. Cox’s veto of the bill reflected varied political and personal equations in a state still receptive to a moderate brand of Republicanism exemplified by Senator Mitt Romney, local political figures and analysts said.

“Those factors included a fear that anti-transgender legislation is bad for luring and retaining businesses, Mr. Cox’s own history of being sensitive to L.G.B.T.Q. ...”

The business-lure line is referring to a “bathroom bill” that North Carolina enacted in 2016, then repealed in 2017 following activist-led boycotts.

The Indiana and North Dakota governors resorted to “it’s not happening” logic. All three states have since enacted bans on boys in girls’ sports.

In late 2023, Republican governor Mike DeWine (Ohio) vetoed a bill to ban PGM and boys in girls’ sports. The legislature eventually overrode him, but in the meantime he came out with an elaborate attempt to regulate PGM – requiring counseling and data-gathering, for example, and banning surgery. DeWine: 

"I believe the parents, not the government, should be making these crucial decisions for their children.”

More precisely: parents should decide about hormones, the government should decide about surgery.

(The Ohio ban just survived a legal challenge by the ACLU.)

In July, New Hampshire governor Chris Sununu signed bills banning pediatric gender surgery and boys in girls’ sports, but vetoed one that would have allowed private and public entities to segregate changing areas, sports, and other facilities by sex. It seems he was drawing a line between adults and kids. 

Sununu’s stated objection to the adults bill:

“[I]t seeks to solve problems that have not presented themselves in New Hampshire, and in doing so, invites unnecessary discord.”

That bill applied to prisons. New Hampshire decides where to place trans-identified male inmates on a case by case basis, and may or may not be housing a male pedophile in a women’s prison. It’s unclear whether Sununu interviewed female inmates before declaring that mixed-sex prisons were no problem.

Why are Republican governors more likely to support trans rights than Republican legislators in their own states? A Utah political scientist told the Times in 2022:

“I think the [Utah] governor and a lot of other Republican legislators, they don’t want to get attention from the national news media on some culture-war issue.”

But state legislators don’t get national news media attention. Only governors do.

How to Seduce a Republican

While Republicans on the whole are much better than Democrats on gender identity, I hesitate to ascribe that to any wisdom inherent in Burkean conservatism or evangelical Christianity. If that were the case then the right would have developed a cogent critique of gender identity decades earlier. Rather, I think the Democrats are hypnotized and drooling into cups and the Republicans are sweeping up all the votes they drop on the ground. It’s janitorial work, not truth-seeking.

As I’ve said when explaining lesbian support for trans inclusion, the people who fall for the scam are the people who are targeted by the scam. Trans activists have targeted liberals for decades while treating religious conservatives like a lost cause. They also targeted the PREA Commission, pro-gay Republicans, and vain governors. 

They’re now trying to target Neil Gorsuch and his fellow conservative justices.

Courting the Court

Republican appointees hold six of the nine seats on the US Supreme Court. Five of those are Catholic (the sixth, Gorsuch, was raised Catholic). In the next year they’ll hear arguments on PGM and perhaps schools’ rights to segregate sports and locker rooms by sex. All the usual suspects will try to influence them by filing amicus briefs.

I’m more curious how the trans scammers will target conservative justices outside formal procedures. Will they place an op-ed in the Wall Street Journal by religious parents of a tomboy, or a gay former Gorsuch clerk warning about extremism? Will a Notre Dame theologian pontificate about the indignity of barring trans-identified boys from the girls’ bathroom? Maybe trans activists will plant a CNBC story about how an adverse ruling on PGM would tank AbbVie stock.

Hey, Republicans call themselves pro-business, I didn’t make that up.

Conservative justices don’t care what the New York Times says about them. Unfortunately, no one who writes for the Times has the humility to face that. So we’ll see pompous lectures from the Editorial Board like the one it gave before Bostock was decided:

“[T]he Supreme Court would be wise to keep the current progress of the law in place — and not undermine its own prior cases that helped make the American workplace more welcoming and inclusive to all.”

After Bostock came down, the same board intoned: “The vote was 6 to 3. It should have been unanimous.” Yeah, how dare anyone dissent from an opinion about gender identity that scrupulously avoids the term gender identity.

Anyway, I’m hopeful that at least five of the six conservative justices will ride out the trans activists’ flood of tears. Some may feel nervous about taking a side in the Culture War over children’s health. But they don’t have the same weasel options that other political actors do.

Supreme Court justices have to justify their gender decisions methodically, using logic, in rulings that lawyers, judges, reporters, and scholars will parse for the rest of American history.

They can’t just say, “I think this is too extreme.”

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