Wright on Gender Affirming Rhetoric

Emerson Wright, Stetson University College of Law, has published Gender Affirming Rhetoric. Here is the abstract.

During the runup to the 2024 election, virtually every person who watched an American football game saw an advertisement alleging that Kamala Harris was “for they/them,” while “President Trump is for you.” Candidates and interest groups spent more than $200 million on ads shaping and preying on public perception of trans people, and Democrats wasted no time blaming Kamala Harris’s electoral loss on messaging around trans issues. On the heels of a contentious election that relied heavily on this type of weaponized culture war messaging, misleading and hostile discourse about transgender people and the issues they face is hard to escape. Transphobic debates dominate the public sphere, often fueled by cisgender anxious compulsions to categorize others according to heteronormative gender roles. Even the Olympics were marred by a transphobic harassment campaign against a gold medalist who is not in fact transgender. More broadly, concerns about slippery slopes and far-reaching hypotheticals have birthed a moral panic about the ways trans people disrupt the cultural order, and courts have been complicit in reinforcing traditional cisgender norms even when it causes real harm to trans people. The U.S. legal system uses traditional legal rhetoric as the generally accepted form of logical reasoning, a form of reasoning that relies heavily on categories and syllogistic reasoning to reinforce heteronormative social roles and hierarchies. Traditional legal rhetoric ratifies hate-motivated marginalization of peoples who defy, transcend, resist, or reject classification according to traditional cisgender norms. For example, restrictions and bans on gender affirming healthcare effectively relegate trans folks to a permanent lower caste by not only denying them essential medical care, but also by signaling that they are unworthy of recognition, support, or dignity, thereby reinforcing their systemic marginalization. Traditional legal rhetoric is designed to preserve the status quo through conservative syllogistic reasoning that is more concerned with validity than with truth, justice, and equity. Thus, it cannot be an effective tool to advocate for trans rights that do not fit within cisgender-normative categories which do not account for the truth of non-binary trans people. Advocates seeking to disrupt the status quo must therefore experiment with more dynamic rhetoric traditions, such as diasporic and indigenous rhetorics, that make space to resolve the issues faced by marginalized communities. Diasporic and indigenous rhetorics are capable of revealing inherent injustices and creating workable solutions to the real problems faced by the trans community. This Article examines Tennessee’s youth gender affirming healthcare ban and the resulting Skrmetti case through a critical and comparative legal rhetoric lens to demonstrate exactly how true justice for trans people cannot be achieved using traditional legal rhetoric. In effect, dominant rhetorical methods stack the deck against trans rights, so when courts and advocates try and fail to fit trans issues into strict legal categories, such as binary gender norms, they ultimately harm trans autonomy by rejecting the very idea that a person could be non-binary. Alternative rhetorics can better serve the justice interests of trans Americans because they center and prioritize justice, dignity, and selfdetermination. This Article ends by explaining how advocates can deploy strategies informed by alternative legal rhetorics to trans healthcare cases to achieve justice, dignity, and self-determination for the trans community.

Download the article from SSRN at the link.