The ACLU filed Schroer v. Library of Congress in 2005, in Washington, DC, on behalf of a man who alleged the federal government had denied him a job because he was trans.
In the lawsuit, the ACLU claimed Diane (David) Schroer was a woman, full stop, no qualifiers, even before genital surgery, because of his gender identity. This was revolutionary. A few years into the litigation, the ACLU started making a more insidious false claim: that gender identity had a basis in biology.
The idea that some people have an inner gender at odds with their body dates back almost to the beginning of gender medicine in the US, when Harry Benjamin and John Money put it front and center. The “classic transsexual” of the 1960s-70s needed to change his body because his gender or gender identity was implacable. Back then the term was wielded by medical doctors who insisted it was a “medical” concept.
Benjamin, an endocrinologist, knew sex was binary and immutable. “No actual change of sex is ever possible,” he wrote in his 1966 manifesto, The Transsexual Phenomenon. But in the same volume he wrote, “the thought clearly emerges that what we call ‘sex’ is of a very dubious nature and has no accurate scientific meaning.” He told a colleague that he’d testified to a small town court that “there were all kinds of interpretations of sex.”
Schroer was filed by the ACLU. Big civil rights orgs had only adopted “transgender rights” about ten years earlier, and they started filing lawsuits on trans people’s behalf around 2000. I think Schroer was the first trans rights lawsuit initiated by the ACLU’s national office, and that it marked the debut of a radical “trans women are women” framing.1
For decades the byword was transsexual. Arguments for transsexual people’s rights tended to hinge on their altered genitals, or else their intention to undergo genital surgery.
By contrast, the transgender movement that rose in the 1990s fought for people who …led funky gender lives. Many of them did not want genital surgery. So their lawyers had to argue gender identity mattered more than genitals.
Mid-transition Schroer interviewed for a counter-terrorism job with the Library of Congress. He still looked like a normal army guy, but after they made an offer he said he was about to start pretending to be a woman. The LOC revoked his job offer. In 2005, Schroer sued for employment discrimination.
The judge – a Clinton appointee in his 60s – suggested the parties retain expert witnesses to opine on “the scientific basis of sexual identity in general, and gender dysphoria in particular.” If Schroer could connect gender identity with hormone imbalances, or perhaps with any biological reality at all, he’d be home-free.
Schroer retained Walter Bockting, a Minnesota psychologist who’d trained in Amsterdam in the 1980s, to testify as an expert on gender identity disorder. He held a PhD and no medical degree.
Bockting defined transsexuality as a subtype of transgenderism, with other subtypes being “transgenderists” and “crossdressers/transvestites.” He never stated whether trans-identified people actually were the opposite sex, and didn’t refer to Schroer at all.
Bockting’s report went on to list theories about how biology might cause gender identity disorder, including (without citation) via prenatal hormones.
A few months after his first report, Bockting submitted a second. This one claimed “sex” had nine “aspects,” citing Money again. Those aspects were chromosomes, gonads, prenatal hormones, internal genitals, external genitals, “sex of the brain,” “sex of assignment and rearing,” “pubertal sex,” and gender identity.
Money’s reputation by this point was in tatters. In 1997 he was discredited by an academic study and a Rolling Stone article following revelations about his horrific experiment on David Reimer, a boy whose penis had been maimed in infancy. He’d also defended adult sex with children. So why did LOC let Bockting get away with citing Money?
Because its own expert witness also cited Money.
The LOC’s post-trial brief gives us a taste of Bockting’s performance on the stand:
“Notwithstanding the representation made in his expert report [that scientists had never found a biological basis for gender identity], at trial on August 19, 2008 … Dr. Bockting repeatedly testified that there is a biological basis for gender identity. At trial on August 22, 2008 … Dr. Bockting changed his testimony again, admitting that a known biologic determinant for gender identity disorder (‘GID’) had not been established.”
Bockting served as president of WPATH from 2009 to 2011. He now directs the Program for the Study of LGBT Health at Columbia University.
The ACLU continues to argue sex doesn’t have a clear, reliable definition. It now cites a 2017 guideline by the Endocrine Society, which is a lobbying association for endocrinologists (who profit off gender medicine). But its opponents finally got a clue. In 2023, Texas called an evolutionary biologist to testify about the sex binary in defense of the state’s ban on pediatric gender medicine. This is a major strategic step forward from relying on gender doctors.
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