12/03/2014 05:21 pm ET Updated Feb 02, 2016

The Science of Human Sexuality Goes to Court

Marilyn Nieves via Getty Images

Today I'd like to discuss one of the first two post-Macy cases being brought by the EEOC, under the able and courageous leadership of P. David Lopez, the commission's chief counsel, who was just confirmed by the U.S. Senate for another term.

This case, in the U.S. District Court of the Eastern District of Michigan, Southern Division, brought by the EEOC under Title VII following the Macy decision, highlights the conflict surrounding the transgender condition brilliantly. This case, with RG & GR Harris Funeral Homes, Inc., as the defendant, shows us the state of mind of those Americans who either are profoundly ignorant of science or detest those who don't fit into their limited conceptions of sexuality. Most importantly, this filing shows the malice behind this defense as well as the profound lack of any scientific awareness of the situation that has developed over the past 20 years.

That malice that drives this business entity is evident in the willful and deliberate misgendering of the plaintiff, Aimee Stephens, throughout. I will not speak to the specifics of this case, because I don't know the plaintiff and the myriad technicalities here that can make or break any legal case, let alone one involving trans persons. Instead I want to focus on the core assertion (p.23) of the defense (emphasis mine):

First, Anthony is not, in fact, a woman. As discussed above, he is biologically,
anatomically and legally, a man. He may assert -- against all objective evidence -- that he is a woman, but there is no medical or legal authority that would support him in that assertion.

To the contrary, there have been dozens of medical studies that prove that being trans is a physical, scientific reality, beginning famously with the Zhou study of postmortem brains. The critical medical study was done by Professor William Reiner of the Johns Hopkins School of Medicine in 2004, and it convinced even his colleague and the trans community's arch-nemesis, Emeritus Professor Paul McHugh, that gender identity exists in the brains of all human beings. The study wasn't absolutely necessary, as there are myriad intersex conditions that prove the existence of a brain-based gender identity independent of chromosomes, genes, or genitalia, but it was the Reiner study that took the science of gender variance to the critical mass that forced the medical profession out of the closet.

That study was followed by the publication in 2006 of a meta-analysis of human sexual development, authored and supported by many of the world's leading researchers in human sexual development, entitled "Atypical Gender Development." Further studies ultimately led to the American Psychiatric Association's removal of adult and adolescent gender-identity conditions from classification as a mental illness in the latest edition of the psychiatric bible, the DSM 5, published in December 2012.

Today there is little argument in the medical community about the existence of trans persons or their being just another congenital neurodevelopmental variation of the human condition. Only religious-fundamentalist physicians, dwindling in number, argue this issue anymore. While there is still much work that needs to be done to understand the etiology of transsexualism and other gender variances and arrive at a more complete comprehension of human sexual development in general, this is settled medicine. The only real debate left pertains to the process of childhood sex and gender development and how it should be managed; there is no debating the fact that variations do exist and need to be respected.

As for the legal arguments, I've gone into great detail in earlier blog posts. This case's defense is replete with references from the ancient times, legally speaking, prior to the Smith v. City of Salem case of 2006, and includes highly selective cutting and pasting from subsequent blockbuster cases in favor of the trans community, such as Schroer v. Billington. The significance of this case and its companion case from Florida, which I will discuss in greater detail later, were discussed by Chris Geidner on BuzzFeed a few months ago.

While there are valid arguments relating to religious liberty where it intersects with gender equality, this defense is based, simply and purely, on a refusal to recognize the science and its supportive medical authorities, which have, over the past two decades, contributed to the rapid change in jurisprudence we've seen since 2006.

Today's vote, reconstituting the EEOC with the addition of former Kennedy staffer and Associate Deputy Attorney General Charlotte Burrows and the return of David Lopez as Chief Counsel, presages further progress for us all.