FWIW: AN OPEN LETTER TO SENATOR PAT TOOMEY ON THE UPCOMING SCOTUS CONFIRMATION
“There’s something happening here…”
Dear Senator Toomey:
I am writing you concerning the upcoming confirmation vote on Judge Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg on the U.S. Supreme Court. I won’t dwell on the gross hypocrisy of the decision to try to ram this nomination through in the five weeks before the election four years after the GOP-controlled Senate’s unprecedented (and anti-democratic) refusal to give Obama nominee Merrick Garland a hearing in the ten months before the previous presidential election. Nor will I dwell on the Senate Majority Leader’s public statement just two hours after Justice Ginsburg’s death was announced of his intention to hold a vote, even though the effect — and perhaps the partial intent — of that timing was to rub salt in the wounds of a broad swath of the American electorate. And I won’t dwell on the fact that the Senate will be taking this up instead of addressing the pandemic, which to date has killed three times more Americans than live in the largest city in my home state of Maine, and is plunging millions of people into economically desperate straits.
I won’t dwell on these things, as compelling as I and tens of millions of other voters find them, because I see no purpose in screaming at the brick wall that is the Trumpian iteration of the Republican party. Instead, I’d like to share my concerns about what the upcoming vote likely means for me personally.
As you know, SCOTUS will be hearing a case challenging the constitutionality of the Affordable Care Act one week after the November 3 election. Since I left teaching in the summer of 2010, I have been self-insured; and I have had my health insurance through the ACA since it became law. Though it is not a perfect law — in no small part because of GOP efforts to dismantle it in the years since it was passed — it importantly mandates that routine preventative health care like physicals and mammograms, as well as preexisting conditions, be covered. I just had my annual mammogram last week. But now your party’s hope seems to be that this imperfect but landmark piece of legislation will be struck down by a solidified conservative court in the middle of a pandemic to be replaced by — what? Trump’s claim to have a replacement plan is a bald faced lie, of course, nor has the GOP to my knowledge presented any substantive alternative in all the years it has been trying to kill the law. By default, then, the aim is presumably to return us to the old status quo. I am 56 years old, Senator, too young by several years for Medicare, and in an age bracket that the insurance industry has historically considered higher risk. Should the ACA be struck down, I am facing the prospect of paying who knows what for some bare-bones policy that will maybe prevent me from going bankrupt if I’m hit by a bus or come down with COVID-19. As for preventive care, without adequate health insurance, I will prioritize paying for rent and food.
The other prospect of the imminent ramming through of Judge Barrett that concerns me personally, and deeply, is in the area of civil rights. As a trans woman, I shudder when I read her statements about my right and the right of my sisters and brothers to exercise our role as citizens of this country, and even to exist in the public sphere. She has remarked on the Obama Administration’s extension of protections to trans folks through Title IX, for example, as follows:
…it’s pretty clear that no one, including the Congress that enacted that statute, would have dreamed of that result, at that time. Maybe things have changed so that we should change Title IX, maybe those arguing in favor of this kind of transgender bathroom access are right. That’s a public policy debate to have. But it does seem to strain the text of the statute to say that Title IX demands it.
She made this statement in November 2016, just months after the administration issued its directive on expanding Title IX. A month later, that expansion was enjoined by the same Texas district court judge who declared the ACA unconstitutional two years later. Title IX-related cases that have made their way through the federal courts since then have pretty consistently upheld the spirit of the 2016 expansion, including three recent decisions that cited the landmark SCOTUS decision in June on sex discrimination in the workplace. While these gains have been encouraging, in particular given the Trump Administration’s consistent hostility to us, they are by no means secured. And Judge Barrett’s 2016 comments are not encouraging in what they suggest about her likely position on future cases. Notably, though Title IX broadly addresses “discrimination under any education program,” Barrett narrowly targets “this kind of transgender bathroom access,” a patent nod to the far right’s multi-year effort in state legislatures across the nation to prevent us from answering nature’s call in safety. It doesn’t take much imagination to recognize how being legally banned from this most basic gender-appropriate public facility would make our presence in the public sphere even more challenging than it often already is.
Another remark Barrett made during the same 2016 lecture tips her hand in an even more alarming way:
People will feel passionately on either side about whether physiological males who identify as females should be permitted in bathrooms, especially where there are young girls present.
As with the first statement, Barrett is careful to couch her views in seemingly neutral this-is-a-debate-we’re-having language. But the phrase “physiological males who identify as females” is far from neutral: it is the far right’s standard way of casting doubt on the very existence of people like me. Its focus is not on our brains, the seat of our identity, but on our primary sex characteristics — our crotches — and it blithely ignores the preponderance of evidence from recent medical research about us. The phrase also dismisses our own testimony about ourselves. Senator, I was aware of my gender variance from the age of three or four (though growing up well before the internet, I had no language to describe what I was then experiencing), and that awareness has never left me. From talking with and reading testimonials by other trans folks, moreover, I know that my experience is a common one. To read Barrett’s description of me and people like me as “physiological males who identify as females,” as if we don’t know our own minds, and as if the totality of who we are is reducible to our natal plumbing, is profoundly insulting.
Two other features of Barrett’s remark are also very telling about her likely position on any future cases involving my rights: her reference to the presence of “young girls” in these bathroom scenarios, and her failure to acknowledge the existence of trans boys. Again, these are standard far right tactics. Barrett’s “young girls” are the cisgender classmates of trans students; by mentioning them, she is tacitly pointing to the purely imaginary threat that trans students pose to them. Trans girls, and women, this zombie fiction runs, are sexual predators — which as I trust I needn’t point out, is also profoundly insulting. Or maybe it’s just that we make cisgender girls/women uncomfortable, or even that some cisgender men might take advantage of our legal access to enter women’s restrooms with evil on their minds. Both of these, I hope you will acknowledge, are rather flimsy excuses for making the existence in the public sphere of an entire class of citizens largely untenable; and for the record, the second is another zombie fiction. (The fact that Barrett refers to these prospective young victims simply as “girls,” of course, implies that they’re “real” while trans girls merely “identify” that way — because, again, we don’t know our own minds.) Barrett’s failure to mention trans boys is also in line with this political focus of the far right: barring “physiological females who identify as males” from men’s restrooms hasn’t been deemed a winning line of attack.
Senator, I address this letter to you with little hope that it will sway your decision on this SCOTUS nomination. It may be that my identifying myself as trans will have the opposite effect (your voting record on same-sex marriage and adoption isn’t encouraging). In any event, GOP members of the Senate as a group seem hell-bent on ramming the nomination through, come what may. But I’m writing to you nonetheless. Because I am morally bound to speak up against what I see as the significant injustice of the Senate GOP’s impending act. Because for the past four years, I’ve been forced to look on the executive branch and Senate of the federal government of my country as my enemy, and I am tired of doing so. Because it’s important for members of vulnerable minorities like the trans community to be visible and heard, so that you and others will know us as more than the caricatures that cynicism and political expediency have portrayed us to be. And finally because it’s important to affirm that votes have consequences — yours on this cynical power grab, and mine and those of so many other Pennsylvanians this election season, and in 2022 when you’re up for re-election.
Sincerely,
Dr. Anastasia Walker
Emailed to Senator Toomey’s office, less one small addition and without images and links (because his site’s email program didn’t enable them), on September 30, 2020
