Heron Greenesmith, Esq.
+ Your AuthorsArchive @herong Snr. Research Analyst @PRAeyesright Adj. Prof @BU_Law Analyses in @teenvogue, @bitchmedia, @rewire_news... Fiction in @thecollapsar, @entropymag... (they) Jan. 21, 2021 4 min read

TERFs and transohobes are out in force today (and as of this tweet it's only 8am on the east coast).

Before you get seduced into debating justice for trans people on their (the TERFs') terms, let me remind us all that their terms are fundamentally wrong.

(Also, follow and RT actual trans people, as well as cis people who support justice and thriving for trans people. Drown the bigots' voices in the voices of those with lived experience.)

Let's talk a little, today, about a fundamental legal misinformation that TERFs peddle to try to justify their bigotry:

That in the United States, "women" derive their rights from nondiscrimination protections.

I say "women" because TERFs and transphobes have a decreasingly narrow definition of who gets to be a woman nowadays.

The legal disinformation here in the US is centered around our judicial system's understanding of "sex."

Here in the US, the Constitution grants us what are called "negative rights," or the right to live freely from government interference in our life and liberty.

In the context of discrimination, we in the US have interpreted our right to be free from invasions into our privacy and free from having our life, liberty, and property removed, as including "on the basis of your skin color, your race, your sex, your disability," etc

So in the US, we have established a few circumstances in which it is not ok for the government to make decisions based on sex.

(Nb to our legal understanding of sex catching up to our biological understanding that sex is infinite and largely unknowable.)

Title VII of our Civil Rights Act says, among many other things, that we have a right to be free from interference in our employment based on our sex.

People who are women have this right, AND SO DO PEOPLE WHO ARE MEN.

Title VII doesn't force employers to hire women. That would be a positive right, a RIGHT to a job.

We don't have that here in the US (although I'm very open to conversations about expanding positive rights in the US).

When a negative right is updated (in this case, to explicitly understand that impacting someone's employment because they're trans is sex discrimination) NO ONE'S RIGHTS ARE BEING "TAKEN AWAY" CAUSE THERE ISN'T ANYTHING TO BE TAKEN AWAY!!!!!!!

There isn't. anything. to. take. away.

Regardless of what ANYONE SAYS, here in the United States, we do not protect Black people against discrimination, we prohibit discrimination on the basis of race.

We do not protect women against discrimination, we prohibit discrimination on the basis of sex.

We do not protect Jewish, Muslim, or Sikh against discrimination, we prohibit discrimination on the basis of religion.




The system is fucked.

But what our fucked system does NOT DO is grant "women" any rights that can be taken away by updating our understanding that prohibiting discrimination based on sex includes discrimination based on transgender status.

To repeat:

The system is flawed. But there isn't anything to take away.

So when a TERF or a transphobe says "they're taking our rights," walk away. Or, look a little closer.

In the case of sports, Title IX established that our negative right to be free from discrimination on the basis of sex in education meant that schools had to provide similar opportunities for all students.

In 1972, that included giving "girls" access to sports.


It is a paltry quasi-solution to centuries of engrained sexism in education, and is failing TO THIS DAY to protect students from discrimination and sexual violence.

TERFs and transphobes will tell you that women have a "right" to education here in the US, and a "right" to play sports.

And that trans people are "erasing" or "taking away" or "diluting" that right.



The US Women's Soccer team called. They'd like to know where their right to play soccer is.

Or does that right not extend to equal pay, equal faculties, and equal sponsorship deals?

Oh yeeaahhh, it's cause THERE IS NO RIGHT TO PLAY SPORTS IN THE U.S.

Like many bigots, TERFs and transphobes are constructing a false situation far different than reality, both legally and socially, then arguing that trans people are changing that false situation.

The reality for women in sports is:

- rampant sexual violence
- no pay
- no spon con
- horrible facilities

Trans people playing sports impacts exactly none of that.

Just to finish on a more philosophical note, the patriarchy and other systems of oppression have a vested interest in establishing a system of negative rights.

Which would repair the harms of sexism faster:

1) A system that says "show us you've faced discrimination and we'll get right on that!"

2) A system that establishes a right to play sports.

Still here! Say hi!

What's up?

Need some help responding to TERFs in your networks?

Follow @JuliaSerano asap

You can follow @herong.


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