Abstract

Excerpted From: Henry F. Fradella, The Imperative of Rejecting “Gender-Critical” Feminism in the Law, 30 William and Mary Journal of Race, Gender, and Social Justice 269 (Winter, 2024) (182 Footnotes) (Full Document)

In 2020, Christen Price published an article in the Marquette Law Review entitled “Women's Spaces, Women's Rights: Feminism and the Transgender Rights Movement.” It purported to “examine[] the implications of the transgender rights movement for women's rights, specifically as to law.” But it failed in this aim, because it relied on outdated biological essentialist arguments that ignore the contemporary scientific literature from related fields, such as medicine, biology, neuroscience, psychology, and criminology. This Article--written primarily for judges, law clerks, lawyers, and legal scholars--responds to some of Price's questionable assertions and calls for the law to reject interpretations that contribute to both anti-trans discrimination and violence against transgender people.

[. . .]

My colleagues and I ended our 2021 article in Critical Criminology advocating for trans-inclusive feminism in law and criminology by saying that we had endeavored to critique three distinct lines of reasoning that had been advanced by Burt in her opposition to the U.S. Equality Act, including faulty legal interpretations; misunderstandings about the science of sex; and flawed assumptions about victimization, offending, and threats to safety. In this Article, I have omitted any discussion of the U.S. Equality Act largely because I, and others, have already addressed Burt's errors of statutory interpretation, case law analysis, and legal history. Moreover, because this Article is written for a law journal that primarily reaches legal audiences, I do not believe it is necessary to rehash those points relevant to the law.

On the other hand, the arguments about the science of sex, victimization, offending, and threats to safety bear reiteration for a legal audience--and not just because lawyers and legal scholars might be unfamiliar with the natural and social scientific findings that undercut the gender-critical perspective. Indeed, the impetus for my writing the present Article was the fact that the Marquette Law Review published Price's severely flawed manuscript and a discriminatory organization had then relied on that work to advance legal arguments in federal court that are harmful to transgender, non-binary, and gender-diverse people.

In 2020, the editors of Nature Genetics published an editorial in which they acknowledged that they had “been complicit in maintaining inequitable systems and that allowing these systems to go unchanged contributes to deeper injustice.” They pledged that they would reexamine their editorial practices and take “concrete actions” such as inviting submissions about experiences of racism in science, diversifying their referee pools, using social media to amplify the voices of scholars of color, and working “to change the prevailing assumptions about who gets to be considered an expert.” I hope that the editorial teams of all academic journals will reflect on how they might similarly adopt practices designed to counter prejudice in all its forms, rather than perpetuate it. Scholarly publications should advance equality and justice, not undermine them.

Finally, I urge the members of the judiciary and their law clerks to look beyond arguments in appellate briefs that rely on faulty premises and erroneous understandings of natural and social science. With regard to transgender rights, it is my hope that this Article provides the information court actors need to understand why they should not rely on the work of Price, Burt, and other gender-critical feminists that are philosophically motivated, rather than being grounded in medicine, biology, neuroscience, psychology, and criminology. The consequences of legal actors not understanding the natural science about sex or the social science about transgender victimization and anti-trans discrimination are profound. Trans people experience anxiety, depression, self-deliberate harm, and suicidal ideations at rates far in excess of cisgender people. And they are at least four times more likely than cisgender people to experience violent victimization, including aggravated, simple, and sexual assaults. The law should be helping to combat these outcomes.

Of course, neither legislation nor judicial decisions can, by themselves, force the social acceptance of any minority group.

[But] the law can provide new opportunities for members of minority groups to expand their lives into areas from which they were once excluded. This enables their fellow citizens for the first time to have the chance to know them as individuals and to discover in them their special talents as well as the common humanity we all share. Through this direct social experience, prejudices are overturned.

Professor, Arizona State University's School of Criminology and Criminal Justice, and Affiliate Professor of Law, Arizona State University's Sandra Day O'Connor College of Law