William & Mary Journal of Race, Gender, and Social Justice
Abstract
Roughly a half-century ago at the height of the second-wave feminist movement, some feminist scholars and activists found themselves arguing with transgender people about who is a woman. While much of contemporary feminist thought has moved past biological essentialism’s outdated embrace of a sex binary to embrace trans-equality, a relatively small but vocal group of self-proclaimed “gender-critical feminists” (who are sometimes called trans-exclusionary radical feminists, or “TERFs” for short) eschew transgender legal rights that they perceive as potentially threatening to the rights of cisgender women. Most gender-critical arguments in that regard are fallacious; they are based on myths and false narratives that misconstrue or ignore empirical data from both the natural and social sciences. Worse yet, the gender-critical position not only threatens to undermine equality under law, but also fosters narratives that contribute to the criminal victimization of transgender persons. In an attempt to minimize the potential for such harmful outcomes, this Article seeks to dismantle some of the more common arguments that gender-critical feminists routinely offer so that judges and lawyers have a source of legal literature that corrects the misinformation gender-critical authors are spreading in this emerging field, thereby providing them with the evidence needed to craft accurate legal arguments and rulings.