This week’s post is brought to you by Everett Johns, a current 1L at University of Montana law school. Everett received his bachelors in Community Health from MSU Bozeman, and previously worked at Goetz, Baldwin, & Geddes. He serves as the president of OUTLaws and is also the 1L Rep for ACLU and Parents, Allies, & Caregivers (PAC), respectively. Everett is a transgender man.
When a baby is born, a healthcare professional typically takes a quick look between its legs, checks a box—‘M’ for male or ‘F’ for female—and that’s it. Such a seemingly trivial task has ripple effects on every aspect of the child’s life from that day on. One letter defines so much of our identity, whether we want it to or not. This is gender assigned at birth. Babies who appear to have a phallus are AMAB: Assigned Male at Birth; those who do not are AFAB: Assigned Female at Birth. If one’s gender aligns with that assignment, i.e. they are AMAB and a man, they are cisgender. If one’s gender does not align with that assignment, i.e. they are AFAB and a man, they are transgender. Trans is an acceptable shorthand for the word transgender.
Prior to white European colonization, Two-Spirit people were a celebrated part of North American Indigenous culture. Colonialism persecuted Two-Spirit people, as discussed in last week’s post. Western colonial culture enforces a strict gender binary. This binary ostracizes any identity beyond cisgender. Western colonial culture attaches different sets of traits to AFAB and AMAB people, and this is inherently harmful. AFAB people are expected to be polite and friendly, while AMAB people are supposed to be confident and direct. AFAB people may be vilified for being ambitious or assertive, while AMAB people face attacks for sharing their feelings or seeking emotional support. The gender binary harms people, both cisgender or transgender, in too many ways to consider in any one post.
Transgender people span the breadth of human diversity; the story of transgender people is the story of the human race. We have always been here. Though present in every race, culture, age group, profession, and sexual orientation, transgender people are persecuted in every community. This persecution is particularly profound at the intersection of multiple oppressed identities. According to the Human Rights Campaign and the Harvard Civil Rights Civil Liberties Law Review, Black trans women face disproportionate violence due to “the intersections of racism, transphobia, sexism, biphobia and homophobia”.
This violence against transgender people, especially Black trans women, is rooted in the United States legal system. Consider the employment sector: until Bostock in 2020, there were no federal antidiscrimination protections for transgender people. Yet even the limited progress from the ruling in Bostock does not reach far enough, since at-will employment laws allow employers to fire trans workers for “any reason”—a policy which activists say permits outright discrimination against LGBT people.
While the incarceral system in the United States locks up BIPOC people at alarming rates, the statistics of how Black trans people are affected is no less shocking. According to Lambda Legal, one in two Black transgender people have been to prison. Even worse, transgender women are often incarcerated in men’s prisons because the law refuses to recognize them as women. Imagine the fear and pain of a prison sentence, now compound it with the legal system knowingly incorrectly and inappropriately imprisoning in violation of gender identity. Due to rampant transphobia, legally permissible discrimination, and institutional violence, transgender people are 13 times more likely to experience sexual assault in prison.
There are numerous things the government could do to halt the violence against transgender people, and Black trans women specifically. Clear federal protections for transgender people is a great place to start; 31 states lack explicit protections for trans people. There is no place transgender people are safe. 75% of transgender students feel unsafe at school. School policies that force children to use an incorrect bathroom are one way transgender students are harmed. Students are beginning to see legal relief affirming the right to use bathrooms at school which align with their gender identities. Yet for many trans youth, this is too little, too late. More than half of transgender and nonbinary youth have seriously considered suicide.
The military, an institution many members of oppressed groups are drawn to as a “last resort,” has long been a uniquely dangerous place for transgender servicemembers. When President Trump took office, there were nearly 15,000 transgender troops. Many of these servicemembers faced new challenges as former President Trump sought to ban transgender people from serving openly, a ban which President Biden recently repealed. Hailed as a progressive step forward, while the repeal may help current servicemembers who are transgender, it raises an important question. Is it progress to give transgender people a right to die for a country that, at best, ignores us, and at worst, sanctions our abuse?
There is something legal professionals at Alexander Blewett the III School of Law and in the state of Montana can do to start to aid transgender people. Make us part of the conversation. Welcome us into the legal community, so we may work to liberate ourselves and others. Give us a seat at the table and invite our perspective in discussion. Speaking accurately about gender, sex, and transgender people is radical harm reduction. Embrace that all women face oppression; this oppression is not always rooted in organs that can be made into cutesy hats. If you mean to speak only about the experiences of women with vaginas, say cisgender women. If you mean to speak about the experiences of all people with vaginas, be clear that this category includes men, too. Challenge your understanding of what it means to be a man or a woman. Recognize that you may not know whether someone is transgender on sight.
There are many ways, big and small, transgender identity intersects with issues of racial injustice, resulting in extreme harm to historically oppressed people. While all Black people, all women, and all transgender people face unique oppressions, this is magnified when these identities intersect, as for Black trans women. While there are many ways legal professionals can help transgender people, the first step is to invite us to be part of the conversation.
– E. A. Johns
Additional Sources
Criminal Injustice System 