95 N.C. L. Rev. 1161 (2016-2017)
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.

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