Transgender issues are one of the most stark dividing lines in politics today. To many on the left, as then-Vice President Biden put it in 2012 and reiterated in 2020, transgender equality is the “civil rights issue of our time.” On the other hand, conservatives have made their antipathy for transgender people clear with their anti-transgender legislative blitz in the first half of 2021, setting new records for the most proposed and most passed anti-transgender bills in a year. For the most part, progressives and libertarians have taken their typical sides, libertarians maintaining their historic alliance with, and progressives their historic opposition to, conservatives. This is unfortunate, because libertarians and progressives stand to enrich and reinforce each other by allying on the topic of transgender issues.
Libertarians and progressives do not have the warmest history. By historical accident, libertarianism and conservatism are closely wed in the form of fusionism, a chimera of social conservatism and economic libertarianism. Since “progressive” and “conservative” are nearly opposite political philosophies, this has driven a wedge between progressives and libertarians. Additionally, progressives have traditionally desired greater government intervention. These interventions have varied from now-vindicated economic interventions to support for eugenics. Libertarians, of course, were not big fans of the government controlling the economy or sterilizing individuals, even in the name of the common good. Yet, there is great potential for libertarians and progressives to find common ground on transgender issues.
The seeds of a potential alliance between libertarians and progressives on transgender issues can be found in the Stonewall riots. Every year, a camp of progressives laments the presence of corporations at Pride events, anxious to remind everyone that Pride commemorates a riot, not a pleasant celebration of harmony and consumerism. What is typically missing from this analysis is who the riot was directed at, and why. Police regularly harassed LGBT people, both legally and outside the bounds of the law. Because of this, the mafia-run Stonewall Inn became one of the few places where LGBT people could have a little room to breathe. In the presence of government oppression, the black market took it upon itself to grant people the liberty they needed to thrive. While the police would regularly arrest and assault anyone who was crossdressing, the mafia saw their opportunity for a mutually beneficial exchange and treated LGBT people with a semblance of respect. This is not to praise the mafia. Imagine how much better a world we would’ve had if the government had respected individual freedom—freedom to love who you want, dress how you want, and call yourself what you want. A rich market of spaces for LGBT people could have emerged. It was the government that oppressed LGBT people, and markets—legal or not—which came to the rescue.
To this day, the government remains a massive problem for transgender people. Two of the biggest priorities for transgender activists are fixing how the government interacts with transgender people and proper support in public schools. For transgender people, out of date government documentation and rigid models of gender all-too-often lead to harassment and denial of service, or, if they are lucky, “just” humiliation. Transgender people have learned to dread air travel, with TSA security theater frequently demanding that they be subjected to demeaning interrogations, bag inspections, and strip searches. Yet, it can be onerous trying to update government documents. Depending on where you live, getting a legal name change can cost upwards of a thousand dollars, and getting your birth certificate updated with the right sex marker can require extremely expensive, difficult to access, and not always desired sterilizing surgeries. This is further complicated by the numerous attempts in the past year to restrict access to medically appropriate healthcare for transgender people, and even more attempts to force government-run facilities to discriminate against transgender people. All of this has been on vibrant display over the past year, with healthcare bans, bathroom bills, and lawsuits flooding state governments across the country. In government-run schools, there are endless disputes about how to treat youth who request that they be referred to by a new name or pronouns, or that they be allowed to use the restroom they feel more comfortable in. Often, schools do little to prevent gender variant youth from being bullied, resulting in an all-but compulsory nightmare. In essence, the question is whether the government will impose one mold on its citizens or if it will give those citizens more leeway in how they want to live.
For many progressives working on LGBT issues, the Equality Act is seen as the holy grail of LGBT policy activism. The Equality Act enshrines nondiscrimination protections for sexual orientation and gender identity in law, providing legal recourse for people who are discriminated against on that basis. However, it would do little to fix the problems mentioned above. It would not make accurate government documentation easier to get, prevent mortifying interactions with TSA, or keep medically appropriate healthcare for transgender people safe from legislative attacks. It may demand that facilities like public schools not discriminate against transgender people, but there is already case law and Department of Education guidance that prohibit that, and they have been remarkably ineffective at creating a safe environment. The main protections of the Equality Act, protection from discrimination in the market, are already largely in place with the 2020 Supreme Court ruling in Bostock. To be sure, the Equality Act would improve things, but perhaps government regulation isn’t what is most needed right now.
Instead, perhaps it would be better to adopt the libertarian sense that the government ought to back off. Indeed, that would solve a lot of the problems mentioned. Libertarians are already no friends of the TSA, and many would be ecstatic at less, or less detailed, mandatory government documentation. The regulations on getting a legal name change can be burdensome, and forcing youth into hostile environments is simply an abuse of government power. When it comes to bans on medically appropriate healthcare, the Republican governor of Arkansas Asa Hutchinson, in vetoing Arkansas’ own healthcare ban, put it well: It “creates new standards of legislative interference with physicians and parents” that any libertarian should be eager to oppose. The sum total of government intervention in matters of gender and sex amount not to liberation, but to interference with the way people want to live their lives.
While the government causes more problems than it solves when it comes to transgender issues, the market has discovered the value of appealing to transgender people. More and more companies are making it easier to have one’s chosen name, as opposed to their legal name, appear in corporate systems and documents whenever possible. It is increasingly common for employer-provided healthcare to cover transgender-specific medical services, and internal nondiscrimination rules protecting transgender people proliferate. The largest and most successful companies strive to get top marks on the Human Rights Campaign’s Corporate Equality Index, not just for good publicity, but because they have realized that they can attract and retain talent more effectively when they provide an environment in which people can comfortably be themselves. And while bigotry remains, in the absence of government-fueled oppression, most companies now recognize that transgender customers are customers all the same, and their money is as good as anyone else’s.
The traditional alliances of progressives-left and libertarians-right are fraying. It is past time for progressives to learn to appreciate the market and be more skeptical of government intervention. Similarly, a cultural reckoning for libertarians is overdue. It is no longer sustainable for libertarians to side with a right-wing that wants to regulate minority gender identities out of existence. A new alliance, one which highly values both markets and minorities, is needed. It is time to put aside old fights and forge a better future together.