Treating trans kids as members of their gender

What are the U.S. legal arguments for treating trans kids as members of their gender (i.e., the gender in which they live and with which they identify)?

A useful resource

Please see this four-paragraph quote:

"While this [Bostock v. Clayton County (2020)] was a historic victory for transgender rights, it also left unresolved one of the most important questions that arises in such cases: whether the concept of 'gender' exists separately, as a legal matter, from 'status as either male or female [as] determined by reproductive biology.' Indeed, Bostock was decided 'on the assumption that' the term 'sex' refers exclusively to 'biological distinctions between male and female.'

And yet, even if you assume that the law refers only to 'biological' sex, Bostock still concluded that most forms of discrimination against trans people violate that law because they necessarily require treating men (or people assigned male at birth) differently than women (or people assigned female at birth).

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Cases like A.C. and B.P.J., in other words, raise a question that was not resolved in Bostock. Bostock was agnostic on whether a trans man is a man. In order to decide the A.C. case, by contrast, the Seventh Circuit had to resolve 'who counts as a ‘boy’ for the boys’ rooms, and who counts as a ‘girl’ for the girls’ rooms.'

If you want a deeper dive into the legal arguments for and against requiring schools to treat trans girls just like any other girl (or trans boys just like any other boy), I wrote that deeper dive here. For now, I will simply add that the Supreme Court appears determined not to resolve this question, even though lower courts are divided on how it should be answered."

— "The Supreme Court is running away from transgender rights cases": For the third time in the last year, the Supreme Court turned away an opportunity to make life much worse for trans youth. Ian Millhiser, Vox, Jan 17, 2024

In Georgia, "Republican Sen. Carden Summers, the primary sponsor of the state’s bathroom ban bill," stopped by a mother who said she was there to "talk to legislators about keeping her kids safe." Senator Summers knelt by her daughter, an 8-year-old trans girl and said: "Well you know, we’re working on that and I’m going to protect kids like you.” The mother replied, "Yeah," adding that her daughter "is trans, and she wants to be safe at school, she wants to go to the bathroom and be safe." Senator Summers stood up, according to witnesses, saying: "I mean, yeah, I'm going to make sure she's safe by going to the right bathroom." And: "When asked if he would make her go to a boy's bathroom, he then allegedly backed away, saying, 'You're attacking me,' turned around, and walked off quickly." Erin Reed observes: "The exchange was a unique encapsulation of why anti-trans bills that ban transgender people from public spaces that match their gender identity have proven ineffectual in the past. In numerous hearings over bathroom bans, transgender people often point out that cisgender individuals cannot always tell who is and is not trans." When bathroom restrictions are enforced, they "will inevitably catch cisgender people who are gender nonconforming in the same net. Worse, it would force transgender kids into the wrong bathroom — kids who even the senator who wrote the bill innately realized he needed to protect from bathroom harassment before learning the child was trans." — Erin Reed, Feb 16, 2024

Look at this

"Most GOP-controlled states now have laws reining in their rights. Measures include laws to keep transgender girls out of girls school sports, limiting which school bathrooms transgender people can use, requiring school staff to notify parents if their student identifies in school as transgender, and barring school staff from being required to use the pronouns a transgender student uses."
— New federal rule bars transgender school bathroom bans, but it likely isn’t the final word, Geoff Mulvihill, AP, April 22, 2024

It looks like a list of things that trans people aren't allowed to do.

But if you think about it, this is a big part of what it means to have a gender. If you don't have this, the foundation of gender crumbles. And the way these laws are designed, they don't aim to dismantle gender for everyone. They aim to reinforce the gender binary and keep everyone in a gender box based on whatever sex they were born as. This makes it illegal to go through a gender transition or otherwise to be trans while in school.

One parent writes this

Can't kids wear whatever they want to wear, and the males are still boys, and the females are still girls? Well, sure, they can. But here's another way that some people experience theselves:

"I started to notice that Alex never corrected anyone who used she/her pronouns. In fact, they seemed kind of delighted. ... She was 5 when she told us she was a girl. At that point, I was on board with my husband’s point of view — let her lead the way. ... As soon as she stepped into her true self, Alex flourished. She had been refusing to wear pants for years. Suddenly, her clothing choices were no longer a way to defend herself against a world that couldn’t see her. Now getting dressed was a form of self-expression, a way to be creative, to play."
— Esther Wray (a pseudonym), "Undetermined," Episodes, May 28, 2025

The kid, Alex, whether affirmed by others as a boy or girl, wears dresses. Alex feels like a girl. Feeling like a girl isn't defined by wearing dresses, but it is linked to wearing dresses in an important way. Dresses feel to Alex like resistance if people insist on seeing Alex as a boy; dresses feel to Alex like joy when people see Alex as a girl.

And so to answer the common question, Why can't you be a boy who wears dresses?, the answer is that, while that works for some people, it makes others unhappy. Some boys wear dresses and are happy, but other people are unhappy when they are seen as boys and are happy when they are seen as girls. The dresses are not identical with the gender. Why can't you be a boy...? Because they're not a boy. They can't be "a boy who..." does anything at all if they aren't a boy.

And then if the discourse shifts to Well, the fact is that you are a boy, regardless of how you feel, the answer becomes clearer. I want to feel happy. This is not primarily or solely or foundationally about dresses. It is about feelings.

That discourse shift exposes the first question Why can't you be a boy... as disingenuous, because that person now clarifies that they believe that the child can only be a boy and can't be a girl. They don't actually care about the child's reasons for believing the opposite.