Header image by Pauline Loroy on Unsplash.
Imagine the scene: Someone enters a bookstore, and the clerk, paralyzed with fear, glances down to the patron’s crotch, checking for a “bulge.” Oh God, prays the clerk, is this a transgender person or a “biologically accurate” woman who happens to have a more-masculine appearance? When the clerk asks for the person’s name, how will the clerk know whether to say “Mr.” or “Ms.,” and how will the clerk know whether to refuse to call the person “Barbara,” as the person self-identifies and as the person’s driver’s license states? Who knew working for a bookstore could be so fraught?
This sounds absurd, right? Yet it is a scenario suggested by a July 16 lawsuit filed on behalf of Born Again Used Books of Colorado Springs by the firm Alliance Defending Freedom, the outfit best known in Colorado for successfully defending Masterpiece Cakeshop.
I quote from the lawsuit:
“As a Christian bookstore, Born Again Used Books follows Christian teachings—including the belief that God created everyone in His image, male or female, worthy of dignity and respect. The store serves everyone regardless of gender identity. That includes customers who present as transgender. These customers, like anyone else, are welcome to patronize the Bookstore and purchase anything it offers for sale. But the Bookstore cannot speak contrary to its beliefs. So the store cannot use pronouns, titles, or any other language contrary to a person’s biological sex.”
If the bookstore’s owners believe this is literally true, that they “cannot” use a transgender person’s chosen name and pronouns, then how are the store’s clerks to follow this policy except through genital inspections, regardless of the age of the clerk or the patron?
Why certain self-identified Christians are so obsessed with whether other people have a penis or a vagina remains a mystery.
A person’s “biological sex” is not always obvious based on outward appearance. As a homeschooling dad, I see kids misgendered regularly, especially before they hit puberty. I also see parents bringing their kids into the “wrong” restroom all the time, and nobody cares about this. Rep. Lauren Boebert had to apologize over her harassment and “mistaken identity” of a woman in the women’s restroom. The book “Beyond Trans” opens with stories of women harassed on public transport because they looked masculine.
Unless we want to force everyone to be tattooed “M” or “F” on their foreheads (and even this wouldn’t help with intersex people), we have to accept that determining someone’s biological sex based on outward appearance is hard.
Now, I am not suggesting for a moment that Born Again Used Books actually plans to set up genital inspections or ever would do so. Any store that tried such a thing immediately would spark community outrage and get sued into bankruptcy. I am merely pointing out that genital inspections are a logical implication of the language of the lawsuit.
But obviously, neither the bookstore owners nor their lawyers believe it is literally true that the store “cannot” use a transgender person’s chosen name and pronouns or must use pronouns matching biological sex. In practice, if a transgender person happens to wander into the store, the store clerks certainly can and generally will use the person’s self-chosen name and pronouns if they come up. Because the only other obvious alternative is genital inspections, which is absurd.
The Basis of the Lawsuit
First, I want to discuss what is not the basis of the lawsuit. Alliance Defending Freedom claims that “Christian teachings” preclude transgender identities, or at least so their clients believe.
But that’s nonsense. As I’ve written, “nowhere does the Bible clearly rule out someone identifying as transgender, and aspects of the Bible lend support to transgender people.” So what we’re talking about here are “teachings” by certain Christians, and imagined by certain people to be “Christian” in nature, that have nothing to do with actual Christian teachings. But in a free country people are free to believe whatever bigoted nonsense they wish.
The lawsuit also is not about what books the store chooses to sell. Despite this, the lawsuit’s opening paragraph states, “With constant pressure to distinguish themselves from big chains, independent bookstores tirelessly curate their shelves and ambiance to strike just the right theme—whether it’s religion, thrillers, local-interest, or LGBTQ. The government has no business infringing that editorial discretion. . . .” No sane person thinks the state is trying to control what any bookstore stocks on its shelves; that’s just a red herring.
The basis of the lawsuit is that House Bill 2025-1312 does compel speech in certain contexts by (likely) requiring places of “public accommodation” to use a person’s “chosen name” and “how the individual chooses to be addressed.” Compelled speech is a big no-no and an obvious violation of the First Amendment. (See my previous piece walking through the language of the bill.)
The lawsuit not only is about how store clerks treat patrons. It states (continuing a bit partly quoted earlier), “So the store cannot use pronouns, titles, or any other language contrary to a person’s biological sex. To do so would be to affirm the view that a person’s sex can and sometimes should be changed—a view that contradicts the Bookstore’s Christian beliefs. Born Again Used Books wants to put this policy in writing, publish it, and explain its Christian views on gender identity to customers.” Again, the store has a First Amendment right to do that.
The suit also effectively argues that the statutes in question are unconstitutionally vague, because they except names with “offensive language” and “frivolous” adoption of a name, and not content-neutral with respect to Born Again Used Books versus various other bookshops.
Why Not Use Gender-Neutral Language?
An alternative to using gendered language is to use gender-neutral language.
Notably, the ADF lawsuit recognizes that it is possible to refer to a person other than with gendered language: “When asked to use pronouns, titles, or language that does not align with a customer’s biological sex, Born Again Used Books employees would respectfully decline and instead intentionally, respectfully, and consistently use a form of address that does not contradict the customer’s sex, such as the customer’s first or last name.”
But, the lawsuit suggests, the bookstore’s clerks might refuse to use a person’s chosen first name if it is not “biologically accurate” (see paragraph 228). However, the notion that names can be “biologically accurate” is complete nonsense.
There is no official list of gendered names. Parents can name their children whatever they want. Decades ago Johnny Cash sang about a boy named Sue. My name, “Ari,” is a common male name in Jewish and Scandinavian cultures, but I’ve met several women named Ari (sometimes short for a longer name). Sure, certain names almost always are associated with a particular sex or gender (Barbara, Susan, George, Herald), but there’s no rule for this; ChatGPT estimates that tens of thousands of men in the U.S. have historically female names. And many names commonly are given to boys and girls.
So now, clerks at Born Again Used Books are expected to be experts not only on whether a customer named Sue has a penis or a vagina, but on whether Sue was named Sue at birth or chose the name to match a transgender identity. Obviously such a policy is completely ridiculous and unworkable. If the store seriously attempts to enact such policies, the result will be that its clerks will harass not only transgender people, but also cisgender women who happen to appear more masculine and cisgender men who happen to appear more feminine, or anyone who has an unusual name.
As I have suggested, the language of Bill 1312 could be amended to allow for consistently gender-neutral language. Rather than obsess about the person’s genitalia, a clerk could simply refer to everyone as (for example) “Patron Smith.” Regardless of the law, the store could adopt such gender-neutral language just to avoid the impossible problem of trying to divine people’s genitalia and name origins. (Or a store could just, you know, refer to people how they want, because this is not a problem for any sensible person.)
The deeper question is, why are we, through our language, so obsessed with other people’s genitalia and genders? In most contexts, whether someone has a penis or a vagina, and whether a person identifies as a man or a woman or other, does not affect me in the least. Sure, in some contexts it does matter, mainly in dating, marriage, and sexual relationships. And it can matter to doctors. It might matter to criminal investigators, in interpreting DNA evidence. But for most people in the normal course of life, the biological sex and gender of almost all other people just do not matter. So why does our language presume that they do?
If I had my way, we’d de-gender our language generally. I confess to having some trouble with “they” as a singular pronoun in some contexts. If I could snap my fingers and have everyone agree to the change, I’d replace all singular gendered pronouns with gender-neutral “he, her, hers,” and I’d call everyone “Mister” and “Sir” (Star Trek started calling female officers “Sir” decades ago). This is my preferred solution, but not the only possible one.
This would reflect the fact that, in most contexts, I do not need to know or care about another person’s genitalia or gender self-identification. I can just treat other people as human beings. Isn’t that enough?
