By Robert Katz

The treatment of transgender people is one of the most active fronts in our never-ending culture wars. Any nuance gets lost on both sides of the debate. At the risk of being caught in the crossfire, this post attempts to formulate a sensible framework for understanding this issue.
 
My starting point is the affirmation of two principles. First, people should be able to express their gender identity as they wish, not in conformity with other people’s ideas. That principle is rooted in the fundamental right to express oneself linked to the First Amendment protection of freedom of speech.
 
Second, gender dysphoria, the strong sense of belonging to a gender other than the biological gender into which one was born, is real. The causes of gender dysphoria are not well understood, but seems to have a physiological basis, at least in some cases. From this emerges the principle that people experiencing gender dysphoria should be given “reasonable accommodation,” a term that comes from the law of disability discrimination. Discrimination on the basis of disability cannot be addressed by treating disabled people the same as the so-called able-bodied. Schools, workplaces, and other public spaces must reasonably adapt to their needs in order to give them an opportunity to participate in society and reach their full potential. So it is with transgender people: we are obliged to reasonably accommodate them so they can live in alignment with their gender identity and still be fully functioning members of society, countering a tendency to marginalize them due to their unusual physical circumstances.
 
The recent spate of legislative proposals in Republican states are rooted in denial of these principles. Their animating idea, genuinely believed in or professed out of political opportunism, is that the law should define people’s gender according to their biological sex “without regard to an individual’s psychological, chosen or subjective experience of gender,” as a recent South Carolina Republican resolution reads. According to an article in the New York Times, in addition to bathroom and sports bills, a new wave of over 150 anti-trans bills proposed in at least 25 states include bans on transition care into young adulthood, on drag shows, and on teachers using names or pronouns not matching students’ biological sex. As with other issues, like climate change, structural racism, and who won the 2020 presidential election, some Republican politicians hope to parlay evidence-free bias into a winning political strategy.
 
Nonetheless, the affirmation of the two principles above don’t resolve all transgender issues. Inasmuch as the transgender agenda asks not merely for freedom of expression, but for societal accommodation and medical intervention, it raises a number of issues that can’t be dismissed as simply transphobic. For one, how do we know when medical intervention is appropriate, and what kind of intervention? Our answer to these questions may depend on how we interpret transgender demographic trends. According to one study of the U.S. population, 1.4 percent of 13- to 17-year-olds and 1.3 percent of 18- to 24-year-olds identify as transgender, compared with about 0.5 percent of adults. To what extent is this difference accounted for by the fact that trans-inclined adults have been inhibited by social pressure from living as their authentic selves, and to what extent is the difference an artifact of social influences to which people under 24 are exposed? If the later, then perhaps stricter protocols for medical intervention, particularly for minors, is called for.
 
Then there are questions around which accommodations are “reasonable.” For example, while the issue of transgender competition in women’s sports has been amplified by right-wing hysteria, there are plausible arguments for placing some constraints on that competition. The ardently feminist Women’s Sports Policy Working Group, for example, although in favor of some transgender women’s participation in recreational sports, have raised concerns about the advantages that transgender women’s athletes who have gone through puberty as males may retain, and have proposed some limitations on their participation in girls’ and women’s sports at the competitive level. You may disagree with their position, but it isn’t reasonable to simply dismiss it as the product of bigotry.
 
Questions about reasonable accommodation extend into areas of language. Using a person’s preferred gender pronoun seems to me unproblematic. But do we need to socially ostracize anyone who doesn’t use “pregnant people” and “people who menstruate” to refer to biological women? Do we all need to fall in line with the decision in some quarters of academia and the media to use “Latinx,” a term favored by only 4 percent of the people in the country who identify as Hispanic?
 
The Republican wager that anti-trans legislation will have political benefits may pay off, at least in the short term. According to a 2022 Pew Research Poll, although 64% of respondents were opposed to discriminating against trans people in employment and housing compared to 10% in favor, they believed, 58% to 17%, that trans athletes should compete on teams that match their sex at birth, 46% to 31% that health care professionals should be prohibited from assisting people under 18 to transition, 41% to 31% that trans people should use the bathroom of the sex assigned at birth, and were evenly split on whether parents who help their children transition should be investigated for child abuse. And this gets to a reality not often acknowledged in liberal circles — that to many people, transgender is a strange phenomenon because it is far outside their personal experience. Prejudice stands ready to supply the answers where experience can’t.
 
There is a tendency among some militant advocates to dismiss any questions and concerns about the accommodation of transgender people as simply transphobic. Transgender advocates may succeed in making certain spaces like universities safe for trans folk, and may intimidate some who express heretical opinions. But as the above survey indicates, they may not be able to translate their dominance in some corners of society into actual political power. And not only is the transgender project placed in jeopardy, but Republicans are using its unpopularity to thwart a progressive agenda that would address climate change, racial justice, and economic inequality. Persuasion on transgender issues will not be possible until advocates realize that at least some questions about the accommodation of transgender people are legitimate and should be addressed, even if they passionately believe that they have the right answers to those questions.

As we mark the 50th anniversary of Roe v. Wade, I note that the supporters of Dobbs v. Jackson Women’s Health Organization, the decision revoking the constitutional right to an abortion, have sought to draw celebratory parallels between that decision and Brown v. Board of Education. This was the case that recognized the principle that “separate but equal” treatment of Blacks and Whites in segregated schools was incompatible with the Equal Protection Clause of the Fourteenth Amendment. Like Brown, Dobbs overturned a foundational precedent that had been in force for decades, and according to anti-abortion proponents, established an important right — the right to fetal life — denied by the discredited precedent. The Dobbs opinion itself referenced Brown a number of times, and Mitch McConnell said of the Dobbs decision: “The Court has corrected a terrible legal and moral error, like when Brown v. Board overruled Plessy v. Ferguson.”

But the differences between Brown and Dobbs far overshadow their similarities. There is the much-discussed issue of how these decisions used history. The Brown court refused to be bound by the views of those who ratified the Fourteenth Amendment in 1868. The vast majority of those legislators almost certainly would have approved of racially segregated schools. In contrast, the Dobbs court found the fact that abortion was widely criminalized in 1868 to be decisive. Had Brown followed the Dobbs court’s method of constitutional reasoning, it would have upheld Jim Crow schools.

However, I would like to focus on another critical difference — the conditions under which the precedent was overturned. In Brown, the court was undoubtedly influenced by the changing attitudes toward race in the US. Having just fought a war against an enemy whose core ideology was extreme racism, and in which Black Americans served valiantly, the post-war period saw a reevaluation of racial attitudes. According to polls undertaken by the National Opinion Research Center, in 1942, only 42 percent of people believed that Blacks were the intellectual equal of Whites. By 1956 that number had risen to 78 percent. In 1942, 30 per cent believed that schools should be integrated; the percentage rose to just under 50 in 1956, and to over 60 per cent by the 1960s. The Brown court was not only influenced by changing attitudes toward race, but as these statistics suggest, helped to further catalyze that change by putting its imprimatur on the doctrine of racial equality. Reality has a way of intruding, however belatedly, on myth, and the myth of Black inferiority gradually gave way to the reality of Black equality.
 
By contrast, views on abortion remained fairly constant in the 30 years prior to the Dobbs decision. According to the Pew Research Center, 61% of those polled in 2022 believed that abortion should be legal in all or most cases, about the same percentage as those polled in 1995, with some fluctuation. Unlike racial attitudes, there was no corresponding shift in attitude away from abortion rights. The differences between a 15-week-old fetus and a newborn infant are significant, physiologically and neurologically. One can argue about the moral significance of those differences, but nothing we have learned about the science of fetal development since the abortion right was recognized in Roe has been cause to reevaluate one’s position on abortion.​

What made Dobbs possible was not shifting societal attitudes on abortion but a decades-long campaign on the part of right-wing politicians and their attorney counterparts to appoint antiabortion judges to the United States Supreme Court. As has been much discussed, the Federalist Society, since its inception in 1982, has played a preeminent role in choosing federal judges. After their initial disappointments in the appointments of moderate Sandra Day O’Connor, sometimes moderate Anthony Kennedy and the downright liberal David Souter, the Society developed a sure-fire vetting process, generally recruiting from among their own ranks. Since the appointment of Clarence Thomas by George H.W. Bush in 1991, no Republican president has appointed anyone not affiliated with and/or blessed by the Federalist Society.
 
When it came to the Trump presidency, the predominance of the Federalist Society in choosing judges was on full view. In exchange for social and religious conservatives overlooking Trump’s many personal failings, he outsourced the vetting and selection of judicial candidates to the Society. Aided by Mitch McConnell’s infamous constitutional hardball, Trump got an appointment that should have been President Obama’s, then a second appointment with Justice Kennedy’s strategic resignation, and a third with Ruth Bader Ginsburg’s passing on the eve of the 2020 election to cement the Dobbs majority. So, the success in overturning Roe, unlike the success of Brown, is not a story of society’s evolution on the abortion issue, but of consummate political engineering to change the high court’s personnel.
 
It is said that the process of judicial decision making is fundamentally different from politics — that judges must at least appear to be interpreting rather than making law. But it is clear that the overturning of Roe did not really occur in the judicial chambers of the Supreme Court, but upstream, in the precincts of the Federalist Society and the decisions of Republican presidents and senators. And unlike Brown, a decision that is now almost universally accepted and praised, it is most unlikely that Dobbs, a decision that never even acknowledged the enormous burden that abortion bans place on women’s liberty, will ever enjoy such widespread acceptance. Its legacy instead is likely to be the further politicization of the High Court and degradation of its reputation.
 
Given the right-wing playbook of exerting political power to appoint ideological judges, there likely will come a time when the Democrats will be in a position to answer politics with politics in the form of increasing the number of members on the High Court or requiring that Supreme Court justices are rotated out of the court after a term of years. Whatever form it takes, Democrats will follow the path laid out by Republicans that the key to success in the Supreme Court is to choose, by whatever means are expedient, the right Supreme Court justices.

In our time, and all times, there have primarily been two types of leaders.
 
Early in the human story, according to most anthropologists, members of small tribes participated in decisions about the rules they would follow and who would lead. Survival depended on leaders considering the best views of tribe members as they forged a path forward.

​As tribes grew into nations, a central leader or ruling family emerged. This provided an enhanced chance of survival because large social units guarantee greater protection and security. But the needs and priorities of people were sublimated to the whole. They were forced to give up individual freedoms and lost the ability to provide input on the rules that would govern them. Most autocratic nations have a history of attempted — and often failed — rebellion because of the impulse toward freedom and recognition within every human being.

On December 5 we had a special presentation by Claude Fischer, sociology professor at UC Berkeley, about his book Made in America (2010, University of Chicago Press).
 
The intent of the book is to chronicle the reality of America’s past based on the actual lives of its people, rather than in broad historical generalities. This was done by examining records that were written by or about those who dwelled in what now is the United States going back to colonial times. 
 
A quote from Page 5 summarizes the intent of the book:

The question the author aims to answer is: “How has American society changed or not?” since its founding. Some myths that exist in our time may not be accurate, such as the ideas that we have turned from religion over the years, or we have become more violent, or that we are less caring toward each other than we once were.
 
He states that what has made the US unique — and still does — is the shared idea that we are individuals who participate voluntarily in community and that individuals succeed through a voluntary — not forced — commitment where each does his or her share to advance the whole.
 
Early in our history most Americans were dependent on others as indentured servants, women, or children. Only white, property holding, men had “competency,” or autonomy and independence as others depended on them for sustenance. Over time, more Americans were able to participate as productive members of society. In earlier times, life was more of a struggle for the average person than it is today. People had many children, and the childhood death rate was high. Over time, with improved hygiene and general prosperity, people lived longer, which freed them to pursue improvements in their lifestyles.
 
Average Americans also experienced more security over time with the gradual introduction of more government intervention to protect working class individuals. Anti-trust and labor laws were enacted around the time that the 19th turned into the 20th century. After the Great Depression resulted from broad market over-speculation, more government programs were put into place to prevent people from spiraling into intense poverty, such as work programs, and to protect workers in retirement, such as Social Security. Banks were more regulated to prevent them from speculating with the funds of their customers. Persistent poverty then was attacked by legislation such as Medicare and Medicaid in the 1960s, which also saw the enactment of the Clean Air and Civil Rights Acts.
 
Over time, with greater mass buying power, more goods became available that people eventually took for granted. In Colonial times, clothes for most were handmade and worn until they became threadbare; beds, tables and chairs were considered luxury items. By the 20th century, electric lights, cars, and telephones were considered necessities even by those considered to be at the poverty level, as were computers and cell phones in the 21st century.
 
Toward the end of the 20th century, Americans lived less in the public sphere and retreated more into private life as they gathered around their TV sets with their families. Self-improvement, once the realm of only the wealthy and literate, became the vogue for average Americans, as many became familiar with the views of Freud and Benjamin Spock.
 
Thus, based on research into the lives of Americans over the first two-and-one-half centuries a few trends become clear:
 

1. We have become more secure and able to plan for the future. 
2. Since the 1970s, however, economic security, and inequality have increased.
3. Persistent in our history — and perhaps increasing — is the view that Americans should be independent, and not dependent on their society. But even when Americans are dependent on society, such as is the case with many on Social Security, some act and vote as if that is not the reality, which then affects our political system. This false belief in independence often has had negative results, resulting, for example, in the US having the highest Covid death rate of any Western nation.
4. There has been a consistent decline of White patriarchy over our history, which has threatened the perceived status of many Americans who fear being “replaced” by minorities who will take their jobs and force them into poverty.

 
One more important aspect of studying and surveying our culture is the issue of whether greater general prosperity over time has led to greater happiness. Results show almost universally that “average American happiness … stayed flat. … Beyond a basic level … more money does not make people happier.” Of course, this is not only an American phenomenon, but if accumulating greater wealth and possessions is not the key to happiness, with the US being the richest country on Earth (according to the World Bank), one must wonder what is the key. Perhaps that realm lies in another area of study.

​But the Supreme Court, as it has for most of our history, maintained a more regressive view. It ruled in Lochner v New York (1905) and other cases that the Fourteenth Amendment, which guaranteed that all citizens would not be deprived of liberty without due process of law, incorporated the principle of “liberty of contract” that restricted the government’s ability to regulate the conditions of employment, ignoring that workers often had little ability to bargain with their employers. These rulings meant that states were, in many cases, prohibited from legislating limits on working hours and other conditions of employment.
 
FDR was concerned that The Wagner Act (1935), which created the National Relations Labor Board to enforce employee rights to collective bargaining, also would be overturned. But public opinion, reflected in FDR’s landslide re-election in 1936, may have persuaded the Court to uphold this landmark legislation.
 
During the McCarthy era of the 1950s, anyone proposing legislation that was seriously pro-worker or favored redistribution of income was in danger of being labeled a communist. This moved economic rights for workers a step backwards.
 
The Civil Rights Act of 1964, signed into law by President Lyndon Johnson, prohibited discrimination in public places, provided for the integration of schools and other public facilities, and made employment discrimination illegal. The Voting Rights Act of 1965 outlawed discriminatory voting practices, including literacy tests, as a prerequisite to voting. However, the Johnson administration failed to address trends such as automation that were leading to a decline in the good-paying working-class jobs that were the basis of post-war prosperity and could help raise the economic fortunes of Blacks and other minorities that had suffered from discrimination.
 
Starting in the 1970s, and particularly in the Reagan years, there was a steep decline in union power and membership with Democrats unwilling to defend union rights. An increasingly conservative Supreme Court promoted corporate power. The movement toward “limiting government” protected the rich and undermined efforts to include those previously excluded from equal economic consideration. The authors suggest that the political left now must counter with its own constitutional economic program, that would include a wealth tax, greater enforcement of antitrust laws, and reinvigorating labor law to empower unions.
 
Next month’s topic: We will discuss The Nature of Conspiracy Theories by Michael Butter.

Everyone can review the Mandate on our Web site and sign it, or suggest changes and then choose to sign or not. They can remove their signatures if they believe that ongoing changes no longer reflect the true function of democracy as they see it.
 
Most often the energy and comments of those who want to reform democracy are focused on what is wrong, but rarely has a statement included the direction that democracy should take. Criticism is easy — we all do it — but finding common ground for a direction forward is much harder. That is why we are so polarized — we know what we don’t want and who to blame but rarely focus on the clarifying the direction in which we want our democracy to go. The Mandate is a forward-looking document that describes the essential vision of democracy and how we can move toward enacting that vision.
 
How does the process work?
 
Please review the Mandate for Democracy at thefutureofdemocracy.net/mandate.html. Using the form at the bottom of that page, state that you would like to support it and/or suggest changes that you would like to see which more clearly express your idea about how democracy should function. Our committee, which consists of long-standing members of our group, will consider your changes and let you know if they are accepted. If you want to sign, indicate your name, where you live, and your vocation.
 
What is our intent in creating the Mandate for Democracy?
 
When people who live in democracies express their views of how their governments and citizens should combine efforts toward a common vision — rather than only stating what they see as wrong — the more likely that democracy will move in the direction of being “government of the people, by the people, for the people,” as expressed by Lincoln in his Gettysburg Address. As more people back this idea it can begin to end the polarization we see all around us that threatens the continuation of democracy as we know it.
 
Another purpose of the Mandate is to provide clear principles to guide us as we consider which candidates and propositions we are going to support.
 
If you believe in democracy — a word coined by the ancient Athenians for “rule by the people” — then join our effort to clarify its direction. After you have done that, let others know that you support the Mandate and why.

Our Mandate for Democracy is available for your review here.

Ballot-box photo by Element5 Digital via Unsplash.com.

Our discussion focused on what we can do to keep democracy viable in light of strong elements in our society that seem to be moving us closer to autocracy.
 
We discussed the idea of a Mandate for Democracy to be designed by members of the group and signed by people who back it. We considered a number of essential principles for which we might advocate.
 
Participants discussed the essential role of dialogue to identify areas upon which we agree and then build toward a consensus on broader issues. There is a need to reach agreement on actions based on common principles and to follow through on those agreements.