This week’s Senate Judiciary Committee hearings for Supreme Court nominee Ketanji Brown Jackson have been at times informative, inspirational, and ignominious. There have been shameful, disrespectful, and unfounded attacks on the judge, and there’s been a lot of politicking. One line of questioning Republican senators have circled back to more than once has to do with gender.
First, there was Sen. Marsha Blackburn (R-TN) asking Judge Jackson to define the word “woman.” “I can’t —” Jackson responded, continuing with an answer that caught the attention of far-right conservatives and Twitter. “Not in this context. I’m not a biologist.”
Blackburn also asked the judge about teaching children about gender identity in schools and brought up Lia Thomas, who is transgender and a swimmer on the University of Pennsylvania’s women’s team. She recently became the NCAA 500-yard freestyle champion. Blackburn asked Jackson “what message do you think this sends to girls" if they see a "biological man [compete against] and beat a biological woman." (Thomas has not responded to a request for comment sent through the University of Pennsylvania press office.)
The next day, Sen. Ted Cruz (R-TX) questioned Judge Jackson about these same topics, interrupting her answers along the way. “Under the modern leftist sensibilities, if I decide right now that I’m a woman, then apparently I’m a woman,” Cruz said. “If I can change my gender…. tell me does that same principle apply to other protected characteristics? For example, I’m a Hispanic man, could I decide I was an Asian Man?” (Senators Cruz and Blackburn haven’t responded to Refinery29’s request for comment.)
Judge Jackson said she couldn’t answer this problematic question because Sen. Cruz was relying on hypotheticals. Not to mention, during confirmation hearings, judges avoid giving any sort of opinion on topics they may need to rule on once confirmed. “Judges have to be careful whenever they make public statements — particularly during the confirmation process — to not opine on something that could come before the Court,” says Susan Hazeldean, a professor at Brooklyn Law School and director of its LGBT Advocacy Clinic.
Then again, the questions from both Senators Blackburn and Cruz had little to do with Judge Jackson’s record or future role as a judge — but they did seem to say a lot about the agenda of farther-right Republicans when it comes to enacting anti-trans policies.
Instead of asking questions about the law and a lifetime appointment to the judiciary, these senators have essentially been grandstanding for political purposes — using the national stage and media attention to speak to their base ahead of the November midterm elections, says Sasha Buchert, the director of the Nonbinary and Transgender Rights Project at Lambda Legal. “I’m not shocked, but I’m very disheartened to see how often the conversation on that side of the aisle has pivoted towards transgender people and athletes,” she says. “Transgender youth specifically experience such high rates of discrimination and harassment, and that they’d feed into those vicious attacks on a federal level?” It’s upsetting to say the least, and will make “a dangerous situation even worse,” she says, adding that trans people of color are most vulnerable to discrimination.
“Many conservative politicians have decided that attacking trans people is politically advantageous for them, and that the Republican voters respond well to those kinds of attacks,” adds Hazeldean. “The confirmation hearings are a reflection of this, and it’s a big stage where people can showcase their policy preferences and communicate to supporters what they’re about.”
Alexis McGill Johnson, president of Planned Parenthood Action Fund, summed up the impacts of the senator's questions in a statement to Refinery29: “What should not get lost is how this grandstanding does real harm to people’s lives,” she said. “Experts agree: trans care is life-affirming and life-saving healthcare, and that is not up for debate.”
It’s no coincidence that these questions are being asked during the worst legislative year yet for anti-trans bills. Although earlier this week the Republican Governor of Utah vetoed a bill that would have barred transgender athletes from competing in girls’ sports, similar measures are gaining ground in other states such as Oklahoma and Arizona.
Meanwhile, the Idaho Senate is considering a bill that would make it illegal to provide trans-affirming healthcare to minors, punishing those who do so with up to a life sentence in prison. It also wouldn’t allow families of trans children to travel elsewhere to get care. And in Texas, Gov. Greg Abbott asked the Department of Family and Protective Services in a February letter to open up child abuse cases against parents who help their trans kids get the gender-affirming healthcare they need.
Such legislation and anti-trans policy pushed forward by Senators at the confirmation hearings can make an already dire situation even worse. “It’s an incredibly dark and difficult time for trans people and trans children and their parents,” Hazeldean says. “All politicians should be taking seriously the impact of their actions on very vulnerable young people.” In fact, lives are at stake.
The marginalization and mistreatment of transgender people in America have serious implications: About 40% of transgender people reported attempting suicide at some point in their lifetime, according to the 2015 U.S. Transgender Survey, the largest survey of trans people in America. This is nearly nine times the rate of the national average.
Jill Jacobson, MD, is a pediatric endocrinologist who works with trans children and is the medical director of the GUIDE Clinic for Children with Differences of Sexual Development at Children’s Mercy Kansas City. She’s seen firsthand how gender-affirming care can make a difference in kids’ lives. A study published in Clinical Practice in Pediatric Psychology backs her up on this. When asked about anti-trans policy and statements from lawmakers, Dr. Jacobson added that trans healthcare shouldn’t be a partisan issue, adding: “Compassion should not be divided among party lines.”
She pointed to Utah Governor Spencer Cox’s statement when vetoing the anti-trans bill this week as an example. “Rarely has so much fear and anger been directed at so few,” Gov. Cox said in a statement commended by the Human Rights Campaign. “I don’t understand what they are going through or why they feel the way they do. But I want them to live.” But other politicians, Gov. Abbott as a prime example, haven’t taken such an approach, and are creating a harmful environment, says Bhavik Kumar, MD, medical director of primary and trans care, Planned Parenthood Gulf Coast in Texas.
“As a provider of both abortion and gender care, I’ve seen firsthand how political interference irreparably harms my patients who deserve to be in full control of their bodies, lives, and futures,” Dr. Kumar says. “There is palpable fear and concern among my patients and their support systems… The goal of these politicians is clear: to dehumanize people and cause chaos as already marginalized communities attempt to access the healthcare they need and deserve. Attacking this care — or calling it anything other than care — is stigmatizing and deeply harmful to people and their families.” This sort of othering can have impacts on trans people’s mental health and ability to feel safe in the world.
“Society often has an unhealthy obsession with trying to force people into narrow boxes, especially in terms of gender,” Casey Pick, a senior fellow for advocacy and government affairs at The Trevor Project, said in a statement to Refinery29. “But the reality is that gender is a spectrum and 'woman' is one category. It's regrettable that some elected officials do not acknowledge the mere existence of transgender and non-binary people and choose to act in bad faith. Transgender women and girls are valid, and our elected officials should be sending them messages of support, not using them as political pawns."
If you are a trans person thinking about suicide or experiencing a crisis, please call the Trans Lifeline at 1-877-565-8860 for confidential support from other trans individuals.