Illustration by Vivienne Flesher
The draft of the Supreme Court’s majority opinion in Dobbs v. Jackson leaked on the anniversary of the Memphis Massacre, a turning point on the way to what looked like freedom. Over the first three days of May in 1866, white residents of Memphis brutalized, murdered, and sexually assaulted the city’s Black residents. Seven men entered the home of Frances Thompson, two of them police—“I know they were policemen by their stars,” Thompson later explained. They drew their pistols, threatening to shoot her and burn down the house if she and her friend “did not let them have their way with us.” Several weeks later, Thompson, a formerly enslaved woman, and four other Black women who had been sexually assaulted testified before the select Congressional committee investigating the massacre. Their testimony built support for the Fourteenth Amendment, which asserts the constitutional right to equal protection under the law.
Ten years after the Memphis Massacre, Frances Thompson was arrested and charged with “cross-dressing” as a woman. Police forced her to undergo a physical examination and, as the historian Susan Stryker recounted in a recent lecture, dressed her in male attire and posed her for illustrations which ran in newspapers across the country. The press recast her as a liar and her testimony as a dangerous fiction, wielded in service of Reconstruction, which was already disintegrating around her. After Thompson was outed, the historian Hannah Rosen writes in her book Terror in the Heart of Freedom (2009), the press used the gender “impersonation” charges to assert that Thompson and other Black women who testified about sexual violence “were not virtuous enough to be believed when they testified in a legal forum,” or “to be trusted with the rights of citizenship.”
Today, the inheritors of this project of policing womanhood and the rights of citizenship include groups tied to the Christian dominionist movement, such as the “legal army” Alliance Defending Freedom (ADF). For these groups, control of gender and sexuality is not fodder in a culture war; it is foundational to their reborn world under white Christian patriarchal rule. ADF’s current CEO, Michael Farris, was a leader in the fundamentalist homeschooling and “parental rights” movements; the latter issue has been taken up recently and forcefully by the Republican Party. Farris has since drafted failed “Stop the Steal” lawsuits for President Trump and supported restrictions on voting rights.
Alliance Defending Freedom, as the investigative journalist Sarah Posner has reported, remains at the head of the fight to exclude trans people from the law. An ADF strategy document details that the organization seeks to “stop efforts to elevate sexual orientation and gender identity to protected-class status in the law akin to race.” ADF considers this a “generational win” on par with another prize: rolling back Roe and the related abortion-rights decision in Planned Parenthood v. Casey. In fact, ADF also lobbied for the Mississippi abortion ban under review in Dobbs. They see the erosion of abortion rights and trans rights—of our shared reproductive freedom—as complementary pathways to the Christian nation they seek to build. As Frederick Clarkson of Political Research Associates told the Mississippi Free Press, “ending Roe is a beginning, not an end.” The end is their theocratic control of the law.
Groups like ADF, the Heritage Foundation, the Family Research Council, and their various umbrella efforts, with the backing of Republican legislators, pump medical misinformation about gender-affirming healthcare into state legislatures and media sources to make trans people’s lives a matter of debate, in the same way that, as the journalist Amy Littlefield has reported, they have pushed pseudoscience like the “fetal heartbeat” to stigmatize abortion. Having fostered intense antiabortion and anti-trans views among large sections of the public, they turn them loose as vigilante enforcers. In Texas, the six-week abortion ban SB 8 rewards private citizens who report providers, abortion funds, and others who assist someone in obtaining an abortion. It’s a model echoed in the state’s recent directive that attempts to redefine gender-affirming care as a form of child abuse and instructs private citizens to report trans kids’ families to child protective services. Antiabortion and anti-trans laws and administrative policies “represent dual tracks under a single GOP agenda,” the journalist Christine Grimaldi writes for DAME, “that dictates the terms of how to have and raise a family, or else. The ‘else’ is criminalization.” They don’t rely solely on the law; they also wield the power of the mob.
When the Supreme Court heard its first case concerning trans rights in 2019, attorneys from ADF represented an employer engaged in discrimination against a trans woman. Their side argued that because Congress hadn’t explicitly included gender identity in civil rights law prohibiting discrimination on the basis of sex, transgender people had no protection from anti-trans discrimination under the law. “The fact is that no one in America would have understood ‘sex’ to mean ‘gender identity’ when the Civil Rights Act was passed in 1964,” claimed a staffer at ADF. It was another way of saying that no one could have thought to include trans people, by claiming—wrongly—that trans people were not there to be included.
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In truth, civil rights and equal protection under the law themselves owed their existence in part to figures like Pauli Murray, a Black, gender nonconforming lawyer and women’s rights advocate who successfully demanded that Congress include “sex” in the law. Today, Murray has been reclaimed as a trans ancestor, along with Frances Thompson. At the time the Fourteenth Amendment was adopted in 1868, the legal scholar Peggy Cooper Davis has argued that lawmakers saw it as a “direct response to slavery’s heartless separations of families and to enslavers’ brutal practices of human breeding.” Its protections, following the testimony of Thompson and other Black women, were fundamentally tied to asserting Black women’s reproductive and sexual autonomy. A century later, Roe v. Wade used the protections of the Fourteenth Amendment to establish abortion as a right.
Now, as Roe ends, I am thinking of Frances Thompson. However much Justice Samuel Alito might claim that they are not rooted in American “history and tradition,” the principles of reproductive freedom for which Thompson helped lay a foundation—freedom to birth and freedom not to birth, freedom to consent and freedom from rape, freedom from discrimination on the basis of sex and freedom to self-determination—were integral to the constitutional amendment that protects them today. No one, certainly not this Court, possesses the sole power to decide otherwise, to rule on who possesses the rightful claim to womanhood and citizenship.
