The Trans-Brandeis Brief

"hugs fascism" finds its appellate strategy

Disturbing decision this week from a federal appellate court on the rights of transgender and nonbinary children to have other children silenced for their protection, but let’s do some background first for purposes of comparison.

Louis Brandeis solved a legal problem by setting aside the law. Arguing before the Supreme Court in Muller v. Oregon — a few years before he joined that court — Brandeis had to defend a state law limiting work hours for women. But the Supreme Court had struck down a state law limiting work hours just a few years before, famously arguing in Lochner v. New York that governmental limitations on work hours interfered with the right to contract. Employers and employees could negotiate work hours and reach agreement, without government interference, and then abide by the shared terms. The state had no business intruding on that contractual relationship.

Rather than relitigating legal premises that the court had just expressed, Brandeis turned to medicine and social science. Or, rather, to “social science.” He filed a long brief on the recent scientific research regarding the invariably nervous and hysterical feminine character and the easily shattered female body, with little snippets of medical literature from the age of neurasthenia. Government shouldn’t interfere in the right of employers and employees to contract over working conditions, when everyone at the table is a man, but government has to intervene to keep women from working too much. It was, Brandeis argued, a basic safety issue, distinguishable from Lochner because of the iron facts of biological sex. For example, he pointed out, science knows that women have a great deal of water in their blood and muscles:

Their knee joints are also quite poor, unfortunately.

I love that by-the-way about how he’s not going to talk about the organs of the pelvis, amirite, gentlemen, but we know they’re there, nudge nudge, and let us speak no more of this. I’m not talking about this, but I’m talking about not talking about it, if you know what I mean and I think you do.

There were also extensive reports from the field:

A unanimous Supreme Court saw the point:

That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity, continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offspring, the physical wellbeing of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.

So 118 years ago, the courts had to respect the certain view of science that the biological differences between the two sexes were absolute, certain, and unvarying, and very much to the disadvantage of women. The restriction of their labor was clearly, therefore, in the public interest. The Science™, you see. Can’t be argued with. The experts had spoken.

Now look at the extraordinary decision in L.M. v. Town of Middleborough, released on Sunday by the First Circuit. (Background here from the plaintiff’s lawyers.)

Lm V Town Of Middleborough 2024 06 09 Appellate Ruling

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A middle school student wore a t-shirt declaring that there are only two genders; his school, fearing the devastation that hate speech would cause trans and non-binary students, ordered him to take it off or leave school. First Amendment litigation followed.

The decision from the First Circuit is exactly the territory of the Brandeis brief and the Muller decision. There’s a First Amendment right to speak, sure, but science and medicine warn that there’s a fragile population among us which is much more prone to harm than other populations — and therefore much more in need of protection, which draws a clear scientific limit to the First Amendment. Experts warn us that we need to limit free speech in the presence of children with non-cisgendered gender identity. Page 26, for example, which explicitly references social science:

So you can speak freely, except to denigrate, which is psychological assault. Then a two-part test of permissible K-12 campus speech appears on page 38:

Students can speak freely, unless they cause negative psychological impact by demeaning another student’s personal characteristics.

Like the Brandeis brief, and like the Supreme Court decision that followed its contours, the First Circuit takes a bunch of statements — trans students will be psychologically harmed by seeing the message on a t-shirt that there are two genders — and accepts them as the thing we know because social science says so.

The Science™, the oracle that issues incontestable decrees. We can see the irony of the courts relying absolutely on the firmly established scientific knowledge that binary sex is certain and inflexible, then relying absolutely on the firmly established scientific knowledge regarding the psychology of transgender and non-binary children — but can the courts see it? (And does it matter at all what the courts are able to see?)

In any event, social science has traveled to edges of the First Amendment and found the place where it stops. It’s a t-shirt that says there are boys and girls.