Deja Vu All over Again: The Recourse to Biology by Opponents of Transgender Equality
![handle is hein.journals/nclr95 and id is 1189 raw text is:
DEJA VU ALL OVER AGAIN:
THE RECOURSE TO BIOLOGY BY OPPONENTS
OF TRANSGENDER EQUALITY*
SHANNON PRICE MINTER*
This Article explores striking parallels between the current battle to
secure equality for transgender people and the prior battle to win
marriage equality for same-sex couples. In both instances, the
success of the marriage and transgender equality movements came
only after years of judicial losses and depended heavily on two
profound changes: increasing judicial and legislative acceptance of
gender equality; as well as increasing social acceptance of lesbian,
gay, bisexual, and, more recently, transgender people. As a result of
those changes, defenders ofstate marriage bans were unable to rely
on gender stereotypes or arguments about the pathology or
immorality of gay people, since those arguments lacked credibility
in most courts. Instead, they turned to biology, seeking to justify the
restriction of marriage to different-sex couples as merely a neutral,
nondiscriminatory reflection of the biological differences involved
in procreation. While those arguments enjoyed some initial success,
most courts-including the U.S. Supreme Court-ultimately
rejected them as circular, concluding that the marriage bans were
discriminatory and not simply the reflection of natural facts.
Today, opponents of transgender equality are reviving that failed
strategy. Rather than seeking to justify differential treatment of
transgender people, they are once again invoking biology to argue
that laws excluding transgender persons from shared restrooms
merely reflect neutral biological differences between men and
women, not a deliberate intention to discriminate. This Article
predicts that just as biology-based arguments failed to shield
marriage bans from meaningful judicial review in the past, the
courts will again recognize that these renewed appeals to biology
are circular and do not supply a principled basis for excluding
transgender persons from full and equal participation in the public
sphere-including access to the same restrooms used by others.
* @ 2017 Shannon Price Minter. The quotation in the title has been attributed to Yogi
Berra. See Yogisms, YOGI BERRA MUSEUM & LEARNING CTR., https://yogiberramuseum.org
/just-for-fun/yogisms/ [https://perma.cc/T3GL-SANB].
** Legal Director, National Center for Lesbian Rights.](ViewImageLocal?handle=hein.journals/nclr95&div=31&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Deja Vu All over Again: The Recourse to Biology by Opponents of Transgender Equality
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most