Having praised the excellent legal analysis in Sixth Circuit chief judge Jeffrey Sutton’s recent opinion (joined by Judge Amul Thapar) that allows Tennessee’s transgender health law to take effect, I must acknowledge that I am surprised by two of Sutton’s ideologically freighted word choices.
On seven separate occasions, Sutton uses the euphemism “gender-affirming” to refer to surgery and other treatments for gender dysphoria. That is not a term that appears in Tennessee’s law, and it strikes me as far from neutral.
In explaining that the law does not discriminate on the basis of sex, Sutton writes:
A cisgender girl cannot transition through use of estrogen; only testosterone will do that. A cisgender boy cannot transition through use of testosterone; only estrogen will do that.
The term cisgender is trans-speak for someone who identifies as a member of his or her sex. I see no good reason for a judge to adopt such an ideologically charged term.
By rough analogy, imagine a case in which a Marxist worker prosecuted for stealing from his employer offered the defense that there is no such thing as private property. In writing an opinion in the matter, it would be very strange for a judge to refer to the defendant as a proletarian. (No, I am not comparing transgender ideology to Marxism.)
For what it’s worth, I also think that Sutton misunderstands the term cisgender. I don’t claim to be fluent in trans-speak, but as I understand the term a cisgender person, by definition, would not “transition.” Sutton instead seems to use the term to refer to a person who identifies as a member of the opposite sex but who has not yet taken the steps to try to alter his body.
In fairness to Sutton, I will note that he issued his opinion on Tennessee’s emergency motion on an extraordinarily expedited basis, so he might well not have had time to give full attention to these semantic matters.