Nicolais: Transgender attacks jumped from the presidential campaign to the Supreme Court last week

Arguments before the U.S. Supreme Court stood as the most recent battleground over transgender Americans, their rights and their very right to exist as they choose. The topic has shot to the forefront of culture wars, igniting impassioned rhetoric from school boards to the presidential election.

And it is likely to get uglier going forward.

I first wrote in defense of transgender individuals in a column five years ago. Author J.K. Rowling became the most high-profile individual to criticize transgender individuals when she cited controversial research that effectively denied people could be transgender. Rowling’s version of feminism viewed transgender women as usurping opportunities she believed should be reserved solely for women whose gender matched the sex they were assigned at birth.

Intellectually, I understood Rowling’s argument then. And I know why so many well-meaning people struggle with transgender identities now. Beyond most having no experience with openly transgender individuals, the concept itself runs against the prevailing, binary construct of gender that existed without challenge until recently. 

Those are powerful forces for shaping beliefs. It took decades of persistent advocacy, education and work for gay and lesbian people to overcome those biases. It was just over a decade ago that same-sex marriage garnered a majority of support among Americans.

But just because I intellectually understand their reticence doesn’t make it right. 

For members of the transgender community, they must know that they will be a political and legal football for years — likely decades — to come. President-Elect Donald Trump’s success in the presidential election practically ensures it.

Trump and Republicans spent $215 million on ads that targeted transgender people during the election. The ads ran a gamut from attacks on Vice President Kamala Harris promising to uphold federal law requiring treatment for transgender inmates incarcerated in federal correctional facilities to fearmongering over school gender-affirming actions, high school sports and bathroom choices.

A repeated part of Trump’s stump speech focused on a lie claiming schools were sending children to have transgender surgery without parental consent. Everything about that statement is a lie. It is not just embellishment or exaggeration, it is a lie. There is not a single report of any school sending a child to receive transgender surgery, much less without parental consent. No doctor would or could conduct such surgery; the process for any transgender surgery generally takes months or years of pre-surgery preparation, not a morning field trip. Trump’s statement is lie upon lie upon lie.

But it was a lie that conjured an image that made many see red. As long as Trump got their votes, truth did not matter at all. 

The drum beat continued post election as Rep. Nancy Mace, R-South Carolina, had a toilet temper tantrum after Rep.-elect Sarah McBride, D-Delaware, became the first out transgender member of Congress. Despite her self-proclaimed “pro-transgender rights” stance just over a year ago, Mace went on a multi-week social media tirade, sometimes making more than 100 posts about the congressional bathroom in less than 24 hours.

What Trump and Mace understand is that a large segment of the population acts solely based on emotional reaction. They can prey on those emotions by making people afraid of what they do not understand or what is foreign to their experience.

They also knew that Harris and other Democrats struggle with responding to such attacks. They genuinely support the LGBTQ+ community, including transgender individuals. But they know many voters do not — or they are at least receptive to Republican fear-mongering. Harris and her allies never responded to Trump’s ad barrage; when The Lincoln Project (a Super PAC I represent as general counsel) cut an ad pointing out that it was a Trump-era policy he attacked Harris over, it represented the sole serious attempt to answer the anti-transgender campaign.

Now transgender rights have made it back up to the highest court in the land again. Four years ago Colorado native Justice Neil Gorsuch shocked legal observers everywhere when he penned an opinion protecting transgender individuals in employment matters. However, this time the arguments seem tainted by the massive anti-transgender climate cultivated in the interim.

For example, rather than the relatively hum-drum world of employment law, the current case seeks to affirm states’ rights to ban gender-affirming care to juveniles. More than half the states have passed such laws. In such places, it seems the concern about parental choice takes a backseat to the “right” kind of government interference as defined by Republican elected officials.

Questioning before the Supreme Court suggested that the 6-3 majority is likely to side with those states. That will almost assuredly lead to spikes in youth mental health crises and deaths by suicide. It’s yet another example of the “pro-life” party only caring about women’s wombs and lives led according to their preferred construct.

It is a dark time for transgender individuals and their allies. And it may just keep getting darker before another flicker of light can be seen.

Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Bluesky: @MarioNicolais.bsky.social.

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