For the past few years, I have not believed that feminists associating with right wing organizations or individuals was a Bad Thing. It wasn’t something I personally wanted to participate in, but I didn’t have strong feelings about other women doing it. Besides, I didn’t think it was sisterly for some women to tell other women how they should spend their political time and energy. It was none of my business!
I had also read or participated in many conversations about feminists fraternizing with agents of the religious right. I had considered various concerns about the resulting harm, but the cause and effect relationship always seemed murky. I only wanted to assess actual damages as opposed to speculation, concern trolling, and hand wringing. So I went over and over the various ways that feminists, as individuals or as groups, might be harmed by deliberate association or cooperation with right wing individuals or groups. In terms of Bad Things that might happen, I came up with very little. Nothing sufficient to strenuously object, anyway. For example:
- Q: Would the right wing operatives take feminists’ money? A: No, feminists don’t have any money to take!
- Q: Would publishing an article in a right wing media source require feminists to believe everything else published there? A: No, what an absurd suggestion! No author or journalist is made responsible for the views of all the other authors in any given publication. Definitely not fair.
- Q: Would talking at a right wing conference or participating on one of their panels magically transform feminist minds into right wing mush? A: No, magic isn’t real! And anyway, it would be extremely disrespectful to assume that the women involved do not know their own minds and cannot control their own political opinions.
- Q: Would the right wing operatives force feminists to participate in anti-feminist activities like opposing same sex marriage or outlawing abortion? A: No, they don’t have the power to force feminists to do anything!
- Q: Would the right wing operatives attach political strings to funding they might offer? A: Maybe, but the details of such an arrangement are critical to understand. It would be a decision made on a case-by-case basis by the people with the information to do so (not me)!
- Q: Would doing anything in association with right wing operatives look bad for feminists? Would it be bad press (assuming such a thing exists)? A: Maybe. Q: Would it create the opportunity for critics to claim that some feminists are actually right wing operatives, not Actual Feminists? A: Yes, probably. But feminists cannot control how other people react and no one should make important decisions based on what their haters might think or do in response!
After working over these scenarios in my mind at various intervals since late 2016, I went about my business as a casual observer to most feminist conversations and busied myself with lots of work, family, and some life changing yoga.
In August 2019, I learned that the Women’s Liberation Front (WoLF) had filed another amicus brief with the Supreme Court of the United States (SCOTUS).[i] It was yet another case involving a transgender plaintiff. I knew the basics of the legal challenge but didn’t think it was a particularly significant question of law. Plus, I had read some of WoLF’s other amicus briefs, so I didn’t pay it much mind. I assumed they were, as their official spokespersons are known to say, just getting “radical feminist arguments” on the legal record. Ok, cool.
Then SCOTUS’ oral argument season came upon us in October. I watched the Breitbart video of Natasha Chart speaking at a right wing rally with some representatives from Concerned Women for America.[ii] It sounded like alarmist cultural rhetoric divorced from the legal issues the Supreme Court was reviewing, but it wasn’t my circus and there was plenty of outrage to go around.
However, around this same time, conversations about the law in closed gender critical feminist groups on Facebook had taken on an apocalyptic tone: women were seriously upset! Many women were insisting that this case, the Harris Funeral Homes v. EEOC and Aimee Stephens case, would be the end of women’s “sex-based rights.” They were adamant that this case was the watershed case; The One. The Case that would legally define “woman” once and for all! And if The Case was decided in favor of Stephens, a transgender person, then women would be completely, irrevocably, legally erased! Disaster!
I was perplexed. I know a little bit about the law, right? I studied it formally, full time, for three years. I even have a license to practice law in the state of Massachusetts. More importantly, I’ve been following developments around sex and gender (identity) in American law for almost 10 years. Why didn’t I realize what was happening?? Had I really been sleeping that deeply??
I started reading. I read primary sources and secondary sources. I listened to the oral arguments before SCOTUS. I read WoLF’s amicus brief. And what WoLF was saying made no sense. If their claims made any sense, they could only be understood as extremely diffuse socio-political or perhaps philosophical arguments.
The legal definition of woman was not at issue.[iii] The legal definition of sex was not even at issue! No sex-based rights will be erased or compromised by this decision. The case is about transgender identified people’s compliance with dress codes, for goodness sake!* Dress codes aren’t a sex based “right.” They’re a burden, especially to women! Ask Darlene Jespersen![iv] What in the world was WoLF talking about? And how could they possibly argue in good feminist faith that upholding the sex stereotyping precedent of Price Waterhouse meant the court had to find that firing the transgender person was legally permissible? No, it made no sense at all.
That’s when the pieces started falling into place: religious right wing organizations like the Family Policy Alliance and Alliance Defending Freedom (ADF), among others, have been advising WoLF for years about the meaning of sex and gender identity in the law. ADF was even representing the employer in this case. Conservative reasoning about public policy issues is notoriously alarmist and intolerant, leveraging slippery slope arguments and scare tactics to control the uninformed. WoLF had clearly taken on these groups’ preferred legal narrative, whether it was accurate or not! And to be clear, the WoLF brief about the Harris case is, in my personal opinion, not an accurate assessment of either the legal questions implicated in this case (redefining sex[v], erasing “women” from the law[vi]) or the reasonably foreseeable consequences[vii] of a decision that is unfavorable to ADF’s client Harris Funeral Homes. I wrote my own analysis for Women’s Place UK, if the reader is interested.[viii]
As it turns out, one Bad Thing that could happen when feminists associate very closely with right wing organizations and individuals is that the feminists come to hold out bad legal analysis echoing right wing hyperbole as their own. They might even put a plea into the permanent public record for a nationally binding judicial decision that permits employers to fire transgender people merely for expressing the intent to transition. They might come to insist that such a ruling is not only just, but the most just, legal outcome.
A second Bad Thing that could happen is that this misinformed legal analysis and its exaggerated predictions of complete legal erasure of women’s rights functions to scare a lot of women and provoke unnecessary anxiety in their lives. Indeed, many women reported feeling angry, depressed, powerless, defeated, and otherwise in despair as they absorbed WoLF’s apocalyptic assessment of the Harris case’s imminent doom.
And yet another Bad Thing that could flow from archconservative legal analysis masquerading as radical feminist concerns is that gender critical feminists become confused about the American legal landscape and the specific sites of conflict between the concepts “sex” and “gender identity.” Instead of becoming more familiar with the legal nuances of sex-based protections, women become miseducated about them. That’s Long Term Bad, even counterproductive to establishing an informed support base. Further, it doesn’t make for effective argumentation. When discussing the Harris case and its potential impact, gender critical feminists parroting WoLF’s alarmist prophecies come off as hysterical and misinformed to anyone but the converted. This is very obviously a Very Bad Thing if you’re trying to win hearts and minds and promote female solidarity.
The moral of this story is that Bad Things actually can seed themselves when feminists hang out with and take advice from right wing theorists and political operatives, like, every day. The seeds might take a while to grow and we might not recognize their maturity for some time, especially if we don’t want to see such ugly changes or we have chosen at some earlier point in time to shut our eyes to the possibility. Or perhaps it’s simply like watching hair grow and you don’t realize how long it’s gotten until someone else says something.
So I’m saying something: this unholy ideological alliance and the political creep it has caused must be given light. In doing so, I hope that some of us might begin to beat back the Bad Things it has reaped upon feminist consciousness and political organizing in this small corner of the world.
*March 2022 note/update: the Supreme Court’s final decision, known as Bostock v. Clayton County (slip opinion), did not create a rule of law about dress codes or anything related to same-sex categorization! Legal surprises all around!
[i] See https://www.supremecourt.gov/DocketPDF/18/18-107/112909/20190820130044873_WoLF%20Amicus%20Harris%20v%20EEOC%20as%20filed.pdf (January 31, 2020), hereinafter referred to as WoLF brief.
[iii] The word “woman” is not used in the Title VII statute. See also WoLF brief, page 35: “As this Court rightly stated in Barnett, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”53 This Court should adhere to that same principle today, and refuse to compel the R.G. and G.R. Harris Funeral Homes, or anyone else, to believe that men can be women.”
[iv] Jespersen v. Harrah’s Operating Co., 392 F.3d 1076 (9th Cir. Apr. 14, 2006).
[v] WoLF brief, page 16: “If the word “sex” is redefined in a circular manner; if the words “women” and “girls” have no clear meaning; if women and girls have not been discriminated against, harassed, assaulted, and murdered be-cause of their sex; if women are not a discrete legally-protectable category, then one might rightly wonder what women been fighting for all this time.” In fact, Title VII’s purpose is not to define women or girls as a class of people.
[vi] WoLF brief, page 3: “If allowed to stand, it will mark a truly fundamental shift in American law and policy that strips women of their right to privacy, threatens their physical safety, undercuts the means by which women can achieve professional and educational equality, and ultimately works to erase women and girls under the law.”
[vii] WoLF brief, page 29: “If “sex” is ambiguous in Title VII, then there is no logical reason why “sex” or “female” or “woman” or “girl” is any less ambiguous when used in any other law designed to remedy centuries of discrimination against women.” This slippery slope argument forms the primary basis of WoLF’s brief, yet fails to articulate legal causation between Title VII and any/all other federal laws or protections.
[viii] See Sex and Gender: the law in the USA at https://womansplaceuk.org/2019/10/19/sex-and-gender-the-law-in-the-usa/ (January 31, 2020).