Erez Aloni

A tidal wave of anti-trans legislation is washing over the United States and across the world. The Trans Legislation Tracker reports over 566 anti-trans bills were introduced in the US in 2023 alone, with 80 passed and over 350 still active. The restrictions take the form of barriers to healthcare access, legal recognition, education, bathrooms, athletics, and openly existing as transgender in public schools. Advocates increasingly justify these measures as necessary to defend cisgender women and girls. As one example, the Preventing Violence Against Female Inmates Act of 2023, a bill introduced to the US Senate, would require that prisoners be housed based on their sex assigned at birth.¹ Introduced by male senators only, Senator Tom Cotton claimed it “protects incarcerated women from rape and crimes,” since housing “men ‘identifying’ as women with females puts them at risk.” This strategy of cis men pushing legislation that purportedly shields cis women from harm now features prominently in lawmaking globally.

In their compelling essay, Cis-Woman-Protective Arguments, Chan Tov McNamarah names this rationale “cis-woman protective” (CWP) reasoning and exposes its flaws.² McNamarah reveals the ubiquity of CWP arguments across domains, tracing their oppressive history steeped in gender inequality and paternalism, faulty logic, and actual harm to cis women through stereotyping.

One of the essay’s most valuable contributions is contextualizing CWP arguments within an extensive history of racist, xenophobic laws that cited protecting (especially white) women to justify oppression. These include labor legislation restricting women’s working hours and occupations; jury service exclusions to protect women’s delicate sensibilities; and anti-miscegenation statutes warding off Black men from “preying” on white women. Though supposedly benefiting cis women, these laws often served patriarchal and racist interests while impeding women’s progress—relying on stereotypes of weak women that need protection by strong men. McNamarah argues contemporary CWP claims echo this troubling lineage, calling it “discrimination intergroup spillover.”

McNamarah then insightfully catalogs modern CWP arguments into eight alleged threat types that transgender inclusion is portrayed as posing to cis women. These encompass threats to cis women using facilities like bathrooms and prisons, impinging cis women’s physical safety and privacy; sports participation, threatening fair competition; rehabilitation in prisons and shelters, triggering trauma by forcing interaction with persons reminiscent of previous abuse; educational institutions, disrupting the benefits of women-only spaces; statistical representativeness in datasets, losing reliability of crime, health, and other statistics by including trans women; women’s speech, risking suppression; access to political advancement by diluting scholarships, programs, and resources aimed to advance women; and liberation from patriarchy by destabilizing the notion of fixed sex categories. This taxonomy facilitates incisive examination of each argument’s logic.

The essay then continues into a rigorous and fair scrutiny of each alleged threat. This analysis exposes flawed reasoning, inconsistencies, and lack of evidence in support of the harm to cis women or in the helpfulness of the measures in fighting it. For instance, regarding prisons, McNamarah notes cis women inmates often face higher risks of guard assault than fellow prisoner assault. Yet CWP arguments irrationally single out trans women as traumatic triggers, ignoring this reality. As another example, statistics from studies investigating safety incidents contradict “bathroom safety” arguments, stereotyping trans people as prone to predation. McNamarah also meticulously tackles alleged “athletic advantages,” highlighting unpoliced impacts of factors like nutrition and training. Additionally, McNamarah notes the lack of evidence that traits like height automatically confer advantage, since they may be beneficial in some sports but detrimental in others. Importantly, McNamarah does not sidestep serious discussion of complex issues and is not dismissive of the difficult questions that may arise. For example, in meticulously examining arguments about athletic advantages, McNamarah carefully considers that performance differentials between cis women and trans women can exist in rare cases. However, the thoughtful analysis reveals how any categorical exclusion still relies on unsubstantiated assumptions. Overall, McNamarah shows how blanket measures fail to address the specific isolated cases where protections could benefit some cis women.

Beyond issues with the arguments’ logic, the methods proposed to implement CWP measures also cause harm to cis women. Scrutinizing appearances to exclude trans women from bathrooms leads to increased harassment of gender non-conforming cis women through forcible removal for being “insufficiently feminine.” Invasive “sex verification” genital exams which are used to enforce bans on trans girls in sports likewise lead to unwarranted anatomy checks of cis girls when eligibility is questioned. As with historical tactics like racial segregation and appearance policing, such flawed methods that scrutinize appearances and focus on genitalia ultimately serve male interests by objectifying women.

Their piercing analysis significantly advances understanding of how superficially distinct discrimination interconnects across identities and eras. By incisively dissecting CWP claims, this excellent essay equips not just scholars but advocates, courts, legislative bodies, and other institutions to recognize and counter flawed woman-protective reasoning that harms the very women it allegedly protects. McNamarah’s timely intervention contributes key insights to ongoing conversations on connections between feminism and transgender equality. Fundamentally, the analysis underscores how no one wins when sources of oppression are positioned as mutually exclusive rather than intersectional. Examining relationships between forms of discrimination through phenomena like “discrimination intergroup spillover” is imperative for meaningful progress.

1. S.752 – Preventing Violence Against Female Inmates Act of 2023, 118th Cong. (2023-2024); see also the identical bill introduced in the House, H.R.1490 – Preventing Violence Against Female Inmates Act of 2023, 118th Cong. (2023-2024), introduced by Rep. Crawford, Eric A. “Rick” [R-AR-1] and 10 congressmen alongside 1 congresswoman.
2. In so referring to this type of reasoning and policymaking, McNamarah acknowledges being inspired by Marc Spindelman’s description in his article The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases, Part III, 81 Ohio State L.J. Online 101, 108 (2020) of this type of legislation as “protectionist.”