Reject Transgender Liberalism

The decades-old cornerstone of transgender legal and political strategy lies in tatters. Last month, the Supreme Court handed down its decision in U.S. v. Skrmetti, upholding Tennessee’s ban on the provision of medical transition to minors. In rejecting the plaintiffs’ arguments that transition is a medical necessity and that Tennessee’s law discriminates on the basis of sex and “transgender status,” the conservative supermajority has given a green light to accelerating efforts to undermine or eliminate transgender rights across the country.

The outcome lays bare the urgency of changing both legal and political course. It’s commonplace to point out that the Supreme Court’s supermajority openly mixes law and politics to secure outcomes for their conservative interests. Yet the transgender movement’s prevailing goal of designating trans people a new suspect class—a group that receives enhanced consideration from courts because of a history of discrimination—has occasioned little analysis outside of poorly reasoned journalism. In a recent article for The New York Times Magazine, Nicholas Confessore suggests there is an irreconcilable contradiction between a “doctrinaire” wing of the “L.G.B.T.Q. movement” “consumed by theories of sex and gender” and a moderate strategy reliant on scientific evidence. The irreconcilable conflict between those two camps, Confessore hypothesizes, may have doomed Skrmetti from the start.

But this is wrong, for there is no contradiction: the two positions are two sides of the same liberal coin.

The real antagonism concealed within the movement for transgender rights since the 1990s is class-based. The material struggle to transition has given way to the concerns of a small transgender professional class who have popularized their own interests and values as if they were universally emancipatory: self-actualization, cosmopolitanism in style and language, and personal declarations of being above or beyond the gender binary. Far from radical, let alone critical of liberalism, these values are conventionally American, deeply rooted in the culture of consumerist individualism. Since the early 1970s, stagnating wages, rising income inequality, the dismantling of the New Deal welfare state, and the ravages of deindustrialization have spurred the dramatic growth of personality expression, therapeutic culture, and the private individual as a sacred refuge from a crumbling public.

The transgender iteration of this political culture, which I’ve termed “transgender liberalism,” has over those decades erased the interests and worldview of working-class people. For most people, transition raises an immediate economic problem, rather than psychological or aesthetic questions; it triggers economic insecurity and downward mobility, and it takes significant private wealth to cushion the blow. The cost of medical care, finding and keeping a job in a gendered labor market, and the frequent loss of family support or other inherited resources combine to make changing sex both expensive and risky. The transgender position was, historically, invented by people who deliberately declined to transition so that they could conserve their jobs, marriages, private wealth, and social status.

In the 1990s, there was a pointed political confrontation between middle-class transgender politics and working-class transsexual politics. The strongest materialist critiques were often tendered by transsexual women who understood transition’s downward mobility, like scholar Viviane K. Namaste, whose 2000 book Invisible Lives offers a bracing account of the conflict. Though they were unpopular for it, transsexual women denounced transgender’s flight into the elitist idealism of college-educated radicalism. Transgender partisans, meanwhile, elevated a deliberate incongruence between physical sex and gendered personality as more sophisticated than transitioning from one sex to another and living unmolested for it. Over time, the position has stretched into several of the core transgender claims that conservative justices took advantage of in Skrmetti: that one need not experience dysphoria or even try to change sex to be transgender; that transgender identity involves endless and shifting personal identification, making it impossible to define; or that everyone might be, in fact, a bit transgender because anyone can adopt an androgynous style or challenge stereotypes about women and men.

The paragon of transgender liberalism is the rejection of transition as what distinguishes transgender people from the rest of the population. Instead of political liberation taking the form of redistributing the means of transitioning sex, liberation would now be from gender as such—a proposition so abstract that it appeals to people who don’t transition, are afraid to, or who try to cope with how difficult it is by recasting their suffering as noble. The blame thus heaped on the lawyers from the American Civil Liberties Union since Skrmetti was handed down is superficial and wrongheaded. This historical process formed neoliberal gender politics long before the ACLU took its first transgender case.

Skrmetti has made painfully clear two things I have long argued, albeit for very different reasons: First, that the legal protection of transition cannot successfully be derived from medical expertise. Nor can it derive from the political invention of “transgender status,” which is vulnerable to judicial critique not just from conservatives but for its flagrant class antagonisms. Instead of clinging to a losing strategy, we must find the courage to engage the law on its own terms. We should not keep pressing for liberal transgender rights; we should wield the historical foundation of what Andrea Long Chu wisely calls “the right to change sex.” Far from something new, transition is a practice older than the United States, and people who transitioned have not been marginal to or excluded from the country’s legal and political institutions. In fact, the practice of transitioning sex shaped the constitutional guarantee of equal protection at issue in Skrmetti and other transgender cases. Fittingly, history brings us back to Tennessee.

On May 1, 1866, violent riots rocked the largest black neighborhood in Memphis. For almost three days, a mob made up mostly of white policemen terrorized the city’s freedmen and freedwomen. Forty-six black residents were killed, and another seventy or eighty were injured. Rioters also wielded arson as a weapon, setting over ninety homes and cabins, four black churches, and twelve schools ablaze. Over one hundred black Memphians reported being robbed. Five freedwomen also reported being raped by white men—no doubt an undercount.

The riots gripped the nation at a pivotal moment, and it took the intervention of federal troops to restore order. Memphis had been occupied by the Union Army for most of the Civil War, which had ended just over a year earlier. The Thirteenth Amendment abolishing slavery had been ratified five months prior, and the political status of African Americans was far from certain. The Fourteenth Amendment, with guarantees of citizenship, equal protection, and due process, was still in active congressional debate, its passage not guaranteed. Reconstruction was facing powerful headwinds—including the intransigence of President Andrew Johnson—and the violence in Memphis was a powerful declaration from reactionary Southerners that while emancipation may have ended legal slavery, it was not to mean political, economic, or social equality.

Republicans dispatched a congressional committee to Memphis to investigate the riots. Their report, the product of almost two weeks of testimony from over 150 people, made national news. The harrowing story they reported also swayed the Congress to the cause of Reconstruction, which adopted the Fourteenth Amendment a few weeks later, in June of 1866. To check the brutal violation of black Memphians’ rights by agents of the state, the federal government would guarantee citizenship, equal protection, and due process. At the heart of this historic transformation of the Constitution lay the testimony of five women who told Congress of being raped by white men, asserting that they must be protected from such violence like any white woman would have been.

The report emphasized that the rapes were “the crowning acts of atrocity and diabolism committed during these terrible nights.” It highlighted the story of Frances Thompson, who testified that she had been raped by seven white men, two of whom were police officers. Thompson had once been enslaved, and she knew as well as anyone that her testifying under oath to white congressmen was unprecedented. In much of the country, black women could not legally be raped because the legal system developed during slavery did not consider them persons. But Thompson’s assertion of her rights carried even more significance, different from the other women who testified because many years earlier, she had transitioned sex. In fact, Thompson had transitioned while enslaved in Maryland, during her childhood—extremely unusual in the antebellum era. When the five freedwomen from Memphis testified to Congress in 1866, their claim to equal protection included a woman who had become one through transition.

Transition is also part of equal protection’s history because of how uniquely and viciously Thompson was pursued for her testimony, unlike the other women. As reactionary politics consolidated in the former Confederate states, new legal restrictions criminalized African Americans to disenfranchise them and recreate white political domination. Status offenses like vagrancy, disorderly conduct, and prostitution provided police with the means to exact political vengeance on black residents. The Memphis police, whose entire force had been fired after the riots, hounded Thompson for years, finally succeeding in arresting her in 1876 for crossdressing. She was sentenced to a male chain gang during a sweltering summer. Thompson, who had needed crutches since a childhood bout of foot cancer, was not only forced into a male prison uniform as humiliation, she was forced to do hard labor on the streets of Memphis in front of leering crowds.

The conservative press linked Thompson’s transition to their political vendetta against Reconstruction, making her one with the Republican Party. Conservative papers like the Memphis Public Ledger smeared Republicans as “the Frances Thompson party,” seizing on her arrest to advance their counterattack on Reconstruction’s constitutional revolution. “It will be remembered,” explained the Ledger, “that when the Congressional Committee investigated the Memphis Riots, Frances Thompson swore that she had been outraged” and that “this was used by the Radical party as part of the campaign thunder to excite the negroes and keep them in the ranks of Radicalism.” If Thompson were male despite having passed as a woman nearly all her life, they reasoned, then Reconstruction was likewise a facade, nothing more than a degenerate conspiracy against white Southern power.

Frances Thompson died shortly after completing her sentence, no doubt overcome by the cruelty of the chain gang. But she left a profound legacy. The political reaction against the constitutional amendment that her testimony helped bring about demands we recognize that transitioning sex contributed to the creation of the equal protection clause. The argument that equal protection applies to transition is not a new idea invented by lawyers—and the kind of discrimination for which conservative justices expressed skepticism in Skrmetti’s concurrences is not only old but foundational to the legal fight for equal protection. Even though this argument that any unequal treatment of transition is sex discrimination is similar to the argument made by the plaintiffs in Skrmetti, it stands on a historical foundation, or originalist grounds. The equal protection of transitioning women and men under the law does not require new legal inventions, like “transgender status” or medical and scientific certification. It can confront popular legal methodology on the federal bench on its own terms.

Just as importantly, Frances Thompson furnishes a political link between 1866 and 2025. It is no coincidence that the battle over “transgender rights” is being waged as a struggle over the meaning and force of the Fourteenth Amendment. Right-wing attacks on transition take advantage of its political unpopularity, and the unpopularity of aligning transgenderism with liberalism, to pursue the same goal as in the 1860s: attacking Reconstruction’s promise of multiracial democracy. The legal strategy of transgender rights since the 1990s has failed, in part, because it has only strengthened the association of neoliberalism and transgenderism, missing the fact that right-wing politics today are not only illiberal but anti-neoliberal. Whether in tariffs or the dismantling of the administrative state, the MAGA movement seeks to dismantle the political-economic order of the past fifty years and replace it with permanent minority rule by corporate interests, Christian nationalists, and party loyalists. The coordinated attacks on birthright citizenship, voting rights, DEI, and transition all combine to undermine the type of liberty the Reconstruction Amendments lay out.

This is why the fight for medical transition—a working-class issue of economic redistribution at its heart—can be portrayed as the elitist imposition of a corrupt ruling class ideology. The ease with which conservative justices took advantage of transgender liberal concepts and platitudes in the majority opinion and concurrences makes as much clear. Justice Roberts cleverly adopts the liberal definition of “transgender” as describing people for whom “their gender identity does not align with their sex,” and relies on the liberal truism that only “some transgender individuals suffer from gender dysphoria” to uphold Tennessee’s right to restrict medical care without it technically discriminating against all transgender people. Justice Barrett’s concurrence goes even further, citing the extremely broad “umbrella” definitions of being transgender used by the World Professional Association for Transgender Health and the American Psychological Association as evidence that transgender people are not discrete enough to be a suspect class that has faced discrimination. These adoptions of liberal definitions, which stress the sovereignty of personal identity over social reality, and which the court pins on expert organizations, made the plaintiffs’ case vulnerable. They are emblems of what conservative thinkers decry as neoliberal corruptions: the exalting of anti-social individualism over tradition and the coercive exercise of bureaucratic expertise over private life.

This is not to say that the plaintiffs in Skrmetti would have prevailed if they had made originalist arguments. There is no way to know. But Frances Thompson left us an unflinching challenge to the false pretense that transition is a recent invention, that it requires modern medical legitimacy for its legality, and that transgender rights can only be an elite interest. Indeed, it was not lost on me, the coauthor of an amicus brief to the court submitted by U.S. historians, that our findings were entirely ignored, both in oral arguments and written opinions. Our brief detailed the long and uncontroversial history of transitioning sex through surgery and hormones is in this country and worldwide, refuting the Sixth Circuit Court of Appeals’s core holding that they are “novel” and “experimental.” There is no doubt that the majority opinion and conservative concurrences would have had a difficult time confronting the facts of history. Skrmetti, like so many declarations about transgender youth, falsely asserts that minors were not medically transitioning until 1990, when they were in fact doing so at least three decades earlier, as our brief demonstrated. Yet the plaintiffs, and the liberal justices who dissented, ignored that fact too.

Transgender rights, as poorly conceived as they have been since the 1990s, are unlikely to prevail—whether in the Supreme Court, in legislatures, or in political organizing within the working-class majority to which most transitioners belong. But more importantly, they are unnecessary. People who transition sex must not be deprived of equal protection under the law because transitioning sex has been part of the tradition of the Fourteenth Amendment since its adoption in 1866. This history has gone underappreciated not because it is obscure but because research by professional historians on transition is in its infancy. The field of academic transgender studies has, unfortunately, been overwhelmingly devoted to the middle-class values of the professoriate. Like the transgender liberalism out of which it emerged in the 1990s, the field’s class bias has tilted against transitioning sex, vainly championing the ostensible superiority of androgyny, or, today, a kind of immaterial, nonbinary idealism. Unsurprisingly, scholars have not been much of a source of actionable political analysis during the rising tide of anti-transgender legislation. That must change. We must study history and strategize accordingly.