A federal lawsuit filed against President Donald Trump’s executive order defining sex by biology could threaten women’s status as a protected class.
Alongside left-wing litigator Democracy Forward, the American Civil Liberties Union lodged a class action complaint last month on behalf of lead plaintiff LeAnne Withrow, a transgender member of the Illinois National Guard, and all other federal workers who identify as transgender or intersex.
Their Nov. 20 lawsuit takes aim at Trump’s presidential mandate on gender, which requires the federal government to recognize that men and women are biologically distinct sexes. Trump ordered the administrative policies of all federal agencies to reflect these biological distinctions, including by maintaining practices that separated bathrooms by sex.
Withrow, a biological man who identifies as a woman, is claiming that he is being discriminated against by Trump’s so-called bathroom ban forbidding men in the federal workforce from accessing female-only facilities.
As a transgender civilian employee, Withrow contends that he is unable to use the restroom while at work due to Trump’s edict, allegedly in violation of Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination on the basis of sex. Using the men’s bathroom would make Withrow “feel unsafe, humiliated, and degraded,” the lawsuit says.
Women’s rights advocates are warning that Withrow’s case could subvert the sex class, which provides civil rights protections for women under anti-discrimination law, by muddying the definitions of male and female to give deference to self-asserted gender identity.
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Gender-critical feminists say that if Withrow successfully challenges sex-based classifications, the biological category of sex, an immutable characteristic, will be “swallowed” by the ideology behind gender identity, which provides a subjective sense of self, effectively erasing the sex class. This would then allow men to identify as women and accordingly be recognized as female in the eyes of the law, regardless of biological reality.
“Women’s rights to be a class of people separate from men are at stake,” Elspeth Cypher, secretary of the Women’s Liberation Front (WoLF), told the Washington Examiner. “Women are vulnerable because of our bodies. We cannot choose to ‘identify’ as a man and avoid rape or harassment.”
Cypher, a retired Massachusetts Supreme Court judge, explained that the 58-page complaint filed in Withrow v. United States is written in a way that would spell the end of single-sex spaces in America.
The lawsuit centers on biologically incoherent definitions of gender that obscure the boundary between male and female. Should the plaintiff prevail in establishing that he has a right to self-identify as a woman and therefore access the women’s restroom, Cypher said, all other areas of civil society — in which women are at risk of sexual assault, stalking, voyeurism, and indecent exposure — would eventually become less safe for women.
This would especially hold true if the court were to adopt the complaint’s verbiage on gender. As a former justice, Cypher said she is shocked to see so many judicial opinions in transgender-related cases automatically adopt the language of gender ideologues.
For instance, in the complaint, Withrow cites as legal authority Bostock v. Clayton County, a 2020 Supreme Court case that vaguely prohibited anti-transgender discrimination at work, holding that sex discrimination includes differential treatment based on one’s “transgender status.” That ruling, which caused widespread confusion and was co-opted by the pro-transgender lobby in the years to come, reasoned that “homosexuality and transgender status are inextricably bound up with sex.”
Some legal scholars believe that the holdings in Bostock should be clarified, given that there was no clear definition of that term, “transgender status,” outlined in the case. Nevertheless, the Biden administration ran with the Bostock ruling, which was only addressing Title VII, and applied it to Title IX of the Education Amendments of 1972, which bars sex-based discrimination in federally funded educational programs. Title IX’s revision under former President Joe Biden, to encompass gender identity or expression, consequently allowed biological boys to infiltrate girls’ sports and locker rooms.
Cypher noted that transgender activists never attempt to define gender, though they invoke it amply during litigation, nor do they give an explanation that is not circular.
“And now they claim that biological sex is ‘wrong’ and confusing,” she said. “If so, then how on earth does anyone ever know if their gender identity is inconsistent with their very nebulous ‘assigned’ sex?”
Withrow’s complaint, which defines a transgender person as “someone who has a gender identity that differs from their sex assigned at birth,” contends that Trump’s executive order “denies the very existence of transgender people” and “ignores the complexity of biological sex.”
“But sex is not complicated,” Cypher countered. “We are a sexually dimorphic species, like all mammals.”
Gender identity is an intangible construct but women’s bodies are tangible and material, Cypher continued. “We are made of life, giving and sustaining flesh. If a mental construct can override material reality, women lose,” she said. “We cannot escape our physicality. Even if women attempt to transition, they are still women [physically].”
“The belief that ‘gender identity’ determines someone’s sex or womanhood/manhood is a fundamental error in categorization, where a subjective feeling is wrongly elevated above objective biological facts,” Cypher said.
Cypher fears that the de facto death of the sex class would undo decades, perhaps centuries, of civil rights achievements won by women throughout U.S. history.
“Women are at risk of losing everything we have had to struggle for. We could end up back under coverture,” Cypher said.
In accordance with a doctrine in English common law called coverture, a married woman’s legal identity was under the “cover” of her husband until about the mid-19th century. Coverture erased the woman’s separate legal existence upon marriage, so she could not enter contracts, sue, or individually own property, as all of her possessions, including earnings, became his.
“And with this complaint targeting bathrooms, women will end up back on what was called the urinary leash,” Cypher continued, “meaning that women cannot go far from home because they may need to use a bathroom.”
The urinary leash refers to a Victorian-era restriction of women’s movement via the lack of restrooms specifically designated for females, tethering them to home or places with private facilities. This constraint on the female population, seen as a deliberate form of social control by the patriarchy, forced women to drink less, delay urination, and limit their time spent in public.
Withrow’s camp, meanwhile, claims that opponents of gender ideology are campaigning to “push transgender people out of public life” through these sex-segregated bathroom policies.
The Washington Examiner contacted Democracy Forward and the ACLU for comment.