Protections for transgender rights have increased in recent years, largely through executive action and litigation. Unsurprisingly, these advancements come into conflict with the sincerely held religious beliefs of some people. Ultimately, the clashes of rights are resolved in the judicial arena.
Basis of Religious Objections
Few religious traditions have clearly stated positions on the place of transgender people either in their institutions or society at large, and most of those have been crafted in the past few decades. This is not surprising, because although transgender people have existed throughout time, access to viable medical treatments to modify the human body to conform anatomy and physiology to a person’s gender identity only developed over the past century or so. Direct guidance from holy texts does not exist.
The core basis for many of the faith-based objections to transgender and nonbinary acceptance comes from deeply ingrained theologically grounded worldviews. Certain people see humanity as having been created by a divine being who specifically created humans as male and as female. This serves a reproductive purpose, and, for many, also differentiates the roles that people are expected to play in the world. To them, biological sex is divinely ordained and assigned to each person according to divine will.
It is therefore unsurprising that some people of faith will treat others according to their assigned sex at birth and will consider requiring them to acknowledge another’s gender identity to either be untruthful and/or unfaithful. They will not accept a person’s stated gender identity, and they will not accept the possibility that there are any nonbinary people.
This is spelled out with great clarity in the recent decision in Meriwether v. Hartop et al. No. 20-3289, 2021 WL 1149377, 2021 U.S. App. Lexis 8876 (6th Cir. Mar. 26, 2021). Nicholas Meriwether, a professor at Shawnee State University, challenged his university’s policy that required faculty to use students’ preferred pronouns. As the opinion notes, “Meriwether believes that ‘God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.’ Id. He also believes that he cannot ‘affirm as true ideas and concepts that are not true.’ Id.” [References are to appellant’s brief.]
The district court rejected Meriwether’s free speech and free exercise First Amendment claims, and the Sixth Circuit reversed on those issues and remanded for trial. This was a significant victory for religious objections, and it is doubtful that this is the last time such issues will be litigated.
Restrictions on Transgender Protections
Restrictions on transgender protections currently tend to come in two varieties: exclusion from sex-segregated locations and activities and refusal to accommodate transgender people’s desire for access to medical treatment. These matters are being addressed on both the federal and state levels, and litigation has been based on both federal legislation and constitutional theories.
There are a variety of conflicts in such litigation, testing the scope of protection and the legality of exceptions based on religious conviction. These cases largely involve federal executive action expanding access for transgender people and state-based legislative action restricting such access.
Sex-Segregated Activities
Most disputes involving sex-segregated activities relate to either access to restrooms or sports and sports facilities. Dozens of bills were introduced into state legislatures in 2021 restricting such access for transgender people, especially transgender youth. While not explicitly based on religious reasons, the view announced by Professor Meriwether underpins much of the unspoken rationale and is obvious from statements made by authors and proponents.
This is especially true for legislation regarding transgender youth because many parents are concerned about raising their children in an environment that supports their own religious values. Many of these actions are a response to transgender positive guidance from the U.S. Department of Education promulgated during the Obama administration, which led local school districts to increase access for trans youth to facilities and programs that are sex-segregated, such as restrooms, locker rooms, and sports activities, including competitive sports teams.
Access to Medical Care
Medical Care for Transgender Youth
Consideration of transition-related medical care is a particularly sensitive issue regarding transgender youth. Typical treatment includes the administration of “puberty blockers”—pharmaceuticals that prevent the development of secondary sexual characteristics. Coupled with other hormonal treatments, this can help transgender youth avoid the dysmorphic aspects of developing a body at odds with one’s gender identity and can assist in societal integration in conformance with that gender identity. Unfortunately, although theoretically reversible, these physical developments have potentially long-term impacts.
The dilemma of delaying treatment of transgender youth is that by the time the person is an adult, the benefits of early intervention are lost, and much of the ensuing medical treatment will go to undoing the effects that could have been avoided had intervention been earlier. (For example, undergoing laser hair removal, facial and other reconstructive surgery, etc.) In essence, the decision of whether to undergo such treatment can only be made while the person is a minor. Withholding such treatment is effectively denying the opportunity to forego a great deal of future emotional and physical trauma. Of course, granting such treatment to someone who is confused about their gender identity and later regrets the decision creates its own concerns, an argument that is often relied on by those who seek to restrict access for youth.
Not surprisingly, this has become a topic of both litigation and legislation.