Why Is This Happening? Protecting trans rights with Chase Strangio: podcast and transcript

Chris Hayes speaks with Chase Strangio, a trans man and lawyer at the ACLU, about many of the complex factors at play in the fight for transgender rights.
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By Why Is This Happening?

The Trump administration wants to legalize transgender discrimination in the workplace. This week’s conversation breaks down how we reached this point. From the ways our social system constructs and uses gender, to the law and its limitations, to the political struggles within the LGBTQ community, Chase Strangio discusses many of the complex factors at play in the fight for transgender rights.

A lawyer at the ACLU and a trans man himself, Strangio has been at the epicenter of the extremely high stakes battle for transgender people to receive equality and recognition. Right now, he is part of the legal team preparing to challenge the Trump administration before the Supreme Court, representing a woman fired for being trans.

CHASE STRANGIO: Over time, we're just going to see that we're making these choices. And the more comfortable we are with the reality that your rule is no neater than ours, that we're just going to have to come to terms with the fact that you might be peeing someone with different genitals than you, and that's just been true forever.

CHRIS HAYES: Hello, and welcome to "Why Is This Happening?" with me, your host, Chris Hayes.

So when I was in college in 1997 to 2001, my then partner, now wife, we were in college together. We met freshman year. And as one does when one is young and in love and in college, we spent a lot of time talking about the things that we were reading and studying, and staying up late and debating them. And Kate, who's been a guest on here before, was a gender studies major. Well, gender studies, religious studies. And in gender studies, she was reading all this literature that I would then kind of read as well so that we could talk about it. And one of the things she read then was the theorist Judith Butler. And Judith Butler, you may or may not know her, she writes in this incredibly difficult, some might say, recondite or impenetrable prose. But some of her basic theoretical ideas are both fairly simple and elegant and also really profound. And one of the most central is the idea that gender, maleness and femaleness, as we think about it, is performance. It's something that is produced by a set of performative actions in a social context.

I think in 2019, that doesn't seem like a crazy, radical thing to say, partly because of the success of both movements for LGBT rights and also Butler and other theorists' work in popularizing this basic idea. But at the time, I remember having my mind blown a little bit because we are taught from such a young age that male and female, man and woman, boy and girl, are central characteristics of the universe. They're just things out there in the world like atoms. An atom just is. That's a unit of mass and it is a sort of coherent entity in the universe itself. It's part of the fabric of the universe. And I think that we learn that male and female are part of the fabric of the universe. That's just the way it is. And I read Judith Butler, thanks to Kate, and she basically says, "Not really, it's a category that we make. A category that is maybe not that different from, say, Brahmin and Untouchable," right?

If we live in the West particularly and are not born into the subcontinent where there's a long tradition of this, from the Western perspective, we look at Brahmin and Untouchable and we're like: "You guys made that up. It's not a thing, actually, in the world. That's just a cultural thing you guys made." We all know that. That's not a part of the universe. Of course, people raised in that tradition can see it as part of the universe, which is the way these categories work, but the idea that gender was like that, the idea that gender was not a part of the universe, that it was something constructed and performed socially, was a radical idea. And part of understanding that is dividing the concepts between gender as a kind of social construct and then biological sex, which is the sort of physical attributes a body has.

But then there was another theorist who actually was at Brown who is both a biologist and a gender studies theoretician named Anne Fausto-Sterling, who wrote this book called "Sexing the Body," which I also read because, or also read parts of or got downloads of from Kate because she was reading it in class. And that book actually says, "Look, biologically, there are lots of folks who are born with features that are somewhere between male and female as we sort of traditionally understand them, and the medical complex goes to work kind of actually changing their bodies so that they fit more squarely into these binary categories we have." So, even at the level of biology, this thing that we think of as inherent into the universe is not as complicated and binary as it seems.

So, all of that is a way of sort of setting the groundwork for today's conversation, because today's conversation is about trans rights in America at this particular political moment. But the background context, I think, to that is actually thinking deeply about the nature of gender, the nature in which political and social systems construct gender and use gender in all sorts of ways, both in capitalism, for marketing, in social orders for hierarchy. And the kind of, in some ways, really profound challenge that transgender folks and trans rights pose to this entire system that is constructed. This entire system in which the universe is cleaved into and that's just the way everything is. And I think understanding that kind of conceptual turn, which I think is easier for younger people who have been more immersed in the notion of gender of performance than it is for older people, who are more immersed in the idea of "there's these two categories and they're in the universe."

But that's a key, conceptual way of sort of thinking about the challenge, from a social justice perspective, of trans equality in this moment. And one of the most righteous — I don't know, one of the most righteous warriors, I want to say, for trans rights both in the way he talks about it and in the courtroom, is today's guest, Chase Strangio. Chase is an incredible person. He's a trans man who has a very rare ability to sort of speak both at 30,000 feet and in granular detail about what's going on. He's pursuing cases that he will be arguing. He's part of a case that's going to be argued before the Supreme Court, but he also has just an incredible sense of history and context and is constantly sort of troubling some of the most profound concepts, even in his own work of what you can do in the law and how you can achieve rights through the law and all the compromises you have to make.

And this conversation is one of those great conversations, to my mind, where I'd come in with a three or four or five-act arc that I'm going to sort of walk through in my head. And then it just goes off in different directions. And as you'll see this conversation is as much about the law and its limitations as it is about trans rights, specifically. It's as much about the way that categories work. It's as much about the way identity works, as it is specifically about trans rights. But it moves through all these themes and unites them in a really interesting way that I think is part of a longer-term project that we've been talking about here. We talk on this program a lot about identity, what it means, how it's constructed, what its political potency is, what its limitations are.

And so this is a conversation that's in line with that. We've had conversations about that with Britney Cooper and with Alex Wagner and with Kwame Anthony Appiah and others. But right now, that's all the context to say. Right now, trans bodies and trans people are on the front lines of an extremely high-stakes and, in many cases, life or death battle about them achieving recognition and full equality that will allow them to live and thrive in this America. And Chase Strangio is one of the people on the front lines of that high-stakes battle.

Where did you grow up, Chase?

CHASE STRANGIO: I grew up in Newton, Massachusetts, outside of Boston.

CHRIS HAYES: So, that's an interesting place because I think of it as a very liberal, professional suburb.

CHASE STRANGIO: It is a wealthy, white, liberal, professional suburb. That's exactly what it is. My family is a little different in that we're that family that sort of fit in in that we were also sort of white, upper-middle class in many ways, but then I was this sort of radical, queer, trans activist. And my brother was in the military, which is not the typical Newton, Massachusetts experience.

CHRIS HAYES: Yeah, you're sort of outside the lane on both sides ...

CHASE STRANGIO: Yeah.

CHRIS HAYES: ... essentially of comfortable, liberal normalcy when you have those two things.

CHASE STRANGIO: And then my father is a raging Trump supporter, Fox News watcher — he was actually in a commercial against Elizabeth Warren when she was running.

CHRIS HAYES: Are you serious?

CHASE STRANGIO: For Senate. A Scott Brown commercial.

CHRIS HAYES: Did you grow up in a conservative household? Would you describe it that way?

CHASE STRANGIO: So, not at all. My mom is an incredibly progressive Jew from Scarsdale, New York, and my dad was something different, I guess, at one time. It wasn't an incredibly conservative household growing up. My parents are divorced. My dad has sort of taken a trajectory towards a more sort of conservative path, and is an incredibly veracious consumer of Fox News and so you can see the progression in his mind. And I think he's one of those white men in his late '60s who's like, "The world didn't give me what I thought it would, and I'm disappointed."

CHRIS HAYES: What has that done to your relationship with him?

CHASE STRANGIO: It's interesting. We do not have the closest relationship. So, we talk about the weather, and we talk about football. This is what unites us.

CHRIS HAYES: Let me just say, don't sleep on the topics that are nonpolitical that we can talk to people about.

CHASE STRANGIO: Yeah, totally.

CHRIS HAYES: I like actually having things to talk to people about that are not politics that can bridge divides.

CHASE STRANGIO: Yes. I mean, football is veering in. And so it does, for a lot of reasons because we are Patriots fans and there's some political questions that come up.

CHRIS HAYES: There's a whole doctoral dissertation about ...

CHASE STRANGIO: Yeah, we could go down a whole direction there. But I have this memory of writing my father an email in 2000, around the election. I had just come out as queer at the time and sort of was begging him not to vote for George Bush. And he never wrote back. And this is sort of a formative crossroads in our relationship, where I was like, "Listen, I get that your politics are different from mine, but this is my identity." This was both in 2000 and 2004, and especially in 2004, and by this point our relationship was more fractured, but LGBT issues were a huge part of the national conversation. And so, I think he was able to divorce politics from his love for me in his mind, but I was not able to do the same.

CHRIS HAYES: It's funny you say that because, even as I'm saying, "Well, it's nice to have things you can talk about that are nonpolitical," right? There's some level at which that itself is a little privileged. That's the whole question. The whole question is, what is the sphere of the political and what's the sphere of the personal and the degree to which we can detach them? And in some ways, there's a meta-disagreement about those boundaries.

CHASE STRANGIO: Completely.

CHRIS HAYES: Right? With people in our lives, loved ones.

CHASE STRANGIO: That created us.

CHRIS HAYES: Yes, created us.

CHASE STRANGIO: Yeah. And I think so we have that. And then my mom, on the flip side, is incredibly progressive. Newton is a liberal place to grow up. I think, for me, I was such a repressed young person and was just so unable to come to terms with who I was, that it's hard for me to see growing up through the lens of anything else other than this period of time where I just didn't know that I had access to these identity categories that turned out to be so formative for who I am.

CHRIS HAYES: So talk about those identity categories. When you talk about coming out as queer, what was your trajectory of your understanding of your own identity?

CHASE STRANGIO: So I graduated high school in 2000. I sort of think the day after I graduated was like, "Oh, my god. I'm queer." And so for me, that meant, okay, I have attraction to people of multiple genders. And I think I wasn't really able to sort of come to terms with that at a younger age. I was an athlete growing up. I played girls' sports. And it's sort of, odd as it is to think about, there was this real stigma on queerness in girls' athletics. This idea that, "Oh, my god. You're going to be checking us out in the locker room," or whatever. So things that we think about now in the trans context, "Oh, we don't want trans girls in the locker room." Well, when I was growing up, it was like, "We don't want queer kids ..."

CHRIS HAYES: Lesbians, right.

CHASE STRANGIO: Yeah, in the locker room.

CHRIS HAYES: Even though I feel like my experience is that, women's athletic cultures are often some of the most intensely supportive queer spaces that exist.

CHASE STRANGIO: I think we think of that and because of the stereotypes around masculinity and femininity, but actually in participation, it isn't true. I think there were times when the WMBA, for example, was estimated to be 50 percent queer, but there was such a small number of people who were actually out. So I think because we think of sort of transgression out of femininity in women's sports, we associate it with queerness and sort of lesbian and bi women, but that's not actually true, I think, in terms of what people feel safe and comfortable with. And so I really struggled just coming out as queer. And I think part of that was both because I was trans and didn't know it and didn't have the language for it. So I was like, "I have these attractions, but something else is going on." And even through college, even studying queer and gender theory in the early 2000s, there wasn't a narrative of transness in the public discourse, and I couldn't name myself.

CHRIS HAYES: That's really interesting. Where did you go to college?

CHASE STRANGIO: I went to Grinnell College in Iowa.

CHRIS HAYES: Okay, yeah. So that's really interesting because that is something I think about a lot. We had Kwame Anthony Appiah on the podcast. He wrote a book about identity and one of the things he talks about is, identity is a social construct. All identities are social constructs and they ebb and flow in terms of their salience, right? There was a time in European history when being Lutheran matters a lot. You might be chased out of your house and in prison for being Lutheran. Now it's like, I don't know. Do I know some Lutherans? Maybe. It's the least salient identity in the world.

So I guess my question to you is, when you say queer, what did that category mean? And when you say there was something else other than being gay, as best as you can describe the subjective experience of that, what was it?

CHASE STRANGIO: Yeah. I say queer and not gay because I think, too, for me it was so much of a political identity as much as it was an identity about sexual attraction.

CHRIS HAYES: That's interesting.

CHASE STRANGIO: And I sort of came to terms with my non-heterosexual sexuality in the context on a political left, cultural moment and movement. And so to me...

CHRIS HAYES: So it was bound up inextricably from the beginning.

CHASE STRANGIO: Yes. It was as much a political understanding of myself as being outside the norm of gender and sexuality and also aligned with a desire to destabilize the constructs themselves. This is going to college in the 2000s, reading Foucault and what is an identity category and what is our subjectivity? And really challenging the construction of our self as the assumed, presumed, cisgender, heterosexual subjects in the world. And so I sort of was both, yeah, it was about having sex with people and that was part of it, but it was a lot more about, "Oh, I never imagined myself to grow up and get married and live in a sort of middle-class, heterosexual context that I grew up in." It was just so outside of the paradigm. And so I was struggling with that.

And also there was this thing that was happening, too, around, well, what are the available gender options within queerness? And so I was clearly not fem, but I was also clearly not butch. And so this was a struggle for me because people were like, "You're not butch." And I was like, "Well, yeah. Obviously. Not trying to be." But I didn't know there was a sort of more fem masculinity that I could reside in. And so it wasn't until later in the 2000s that I started to realize that we don't have to rely on binary so much. I don't need to be like, "I am a lesbian that is butch." Those are fine sets of categories, they just did not describe me.

CHRIS HAYES: Right.

CHASE STRANGIO: And so, it took me longer.

CHRIS HAYES: You're turning on something that I wrestle with a lot, which is basically the following. So, I went to college in a similar period and a lot of exposure to post-modernism and Foucault and Judith Butler, whose work at the time seemed impenetrable and recondite and now is one of the most influential paradigms in our world. It's sort of amazing, right? Specifically gay rights. So not queer, including trans folks, but gay rights depended on was a kind of almost sort of reactionary essentializing of gayness as a kind of platonic thing that exists in the world. And you heard story after story of people being like, "I just knew."

And it's not my place to question anyone's subjective experience of that, but it always had embedded in it that this is a thing outside our control, ergo any prejudice against it is unreasonable and unfair. And I always sort of felt like, I understand it as a political argument, but even if you chose to be gay, that should make no difference. That was a whole thing that the argument about gay rights was so tied from, "I didn't choose this, ergo you can't discriminate against us." But say you did choose it, so what? Still shouldn't discriminate.

How do you think about that concept? The uncomfortableness of the essential nature of this experience from exactly the kind of sociopolitical context that you're putting your own understanding of this in.

CHASE STRANGIO: Yeah. So two things. One, I think really comes from the reality of the history of the gay rights movement, in particular. And I say rights because it was the turn towards the legal system itself that sort of required that, for a number of reasons. And Wendy Brown writes a lot about states of injury and the idea of once you mobilize around rights, which are a sort of state-created idea, you're cohering around this notion that the legal systems sets for you. You have to become a coherent legal subject. And one of the ways you can get constitutional protections, for example, is to talk about your identity in terms of immutability. And so that is very much part of the constitutional paradigm and you can really see that becoming more and more reinforced the more that the mainstream lesbian and gay rights movement, in particular, exclusive of bisexual and transgender people, was turning towards legal recognition and really assimilationist in construct.

Chase Strangio.ACLU

CHRIS HAYES: Fascinating.

CHASE STRANGIO: So that's one thing that happened.

CHRIS HAYES: Right. So, if you want to make these kinds of arguments to this body under this conceptual and rhetorical architecture, you need to make arguments that are about the identity you have being immutable because that's how they will listen to you.

CHASE STRANGIO: Yes. Exactly. So you cohere around that. So I think that's one thing that happens and I think that's one of the reasons that you see bisexual and transgender people being shoved aside in the beginning, because it's like, "Oh, you're confusing for this immutable thing."

CHRIS HAYES: Right.

CHASE STRANGIO: You could make the same argument as to both. There was a very binary sort of, "I couldn't possibly be anything but this. I am a woman attracted to a woman and only to women," and, "I'm a man attracted to men and only men."

CHRIS HAYES: Which again, was people's subjective experience. I don't want to ...

CHASE STRANGIO: Yes, right. Yes. Although again, our subjective experience is constrained by the possibilities that are imposed upon us.

CHRIS HAYES: Also true, yes.

CHASE STRANGIO: So it's all of that. And so that, I think, was definitely a part of it. And then I think the other thing is that the trajectory of the movement, obviously, was within the political context of: this is the United States movement in the political context of the United States, where whiteness and maleness are salient and supreme and sort of consolidate with power. And so, you also have the history of the AIDS crisis in the '80s and the fact that rich, white, gay men are impacted. And so, you have this experience of crisis among a group of people that were repressed and in crisis in other ways because of their sexuality but, otherwise, held a lot of social power and capital and political power.

And the movement then grows out of a lot of the leadership that is led by white men. And so that allows an alignment with power that is very specific to gayness, to whiteness and maleness. And so that, again, is a sort of logical turn to the legal system where you can say, "I am just like you." And in fact, you look a lot like them than being those in power. And so the sort of narrative of the mainstream LGBT rights movement looks a lot like an alignment with political power.

CHRIS HAYES: I mean, far be it for me to raise the banner for Larry Kramer and Harvey Milk, but it was a very successful movement. I mean, and extremely radical in many ways.

CHASE STRANGIO: Yes. No, it was.

CHRIS HAYES: Very radical formations.

CHASE STRANGIO: No, no, no. Okay, so because of how it then progressed, it's easy to look back and say, "These are a bunch of white men and they had a lot of power." And of course, in the moment, they were completely focused on disruption and political organizing and...

CHRIS HAYES: And not dying.

CHASE STRANGIO: And not dying. And Peter Staley continues to be an incredibly important voice. I don't mean to say ACT UP was not the sort of radical, political resistance movement that it was, and I think we have to acknowledge that their ability to access the government in the end was inextricable from the fact that there was white male leadership.

CHRIS HAYES: And social capital embedded in that.

CHASE STRANGIO: Yes.

CHRIS HAYES: And then also, as it moved towards the courts, and in terms of what you're saying is a kind of way of adapting the language, the rhetoric, the conceptual architecture that the courts will understand into what, in a sort of definitional identity sense, what gayness is as a kind of immutable characteristic to get those claims recognized by a state that was, in the beginning, completely antagonistic and sometimes befuddled by the claims.

CHASE STRANGIO: Yes, absolutely. And you can see, of course, the evolution was from the demands of the LGBT movement, which were really about radical kinship and caretaking to marriage. And-

CHRIS HAYES: Domesticity. Yeah.

CHASE STRANGIO: Yeah. It sort of kills me to read Justice Kennedy's opinion in Obergefell, which is the case that ultimately brings marriage equality to the United States. Because in it is this idea that there is no more foundational structure than marriage. It's the most conservative thing you've ever read. It's like, "How tragic would it be to wander the Earth alone without a spouse," and you're like, "Oh, my God. Our movement created this." We have sort of reinforced civil marriage beyond recognition. And that was sort of inevitable, but I think tracing the progression is sad.

CHRIS HAYES: Right. Although, I'm the straight white cis male here who's going to stand up for the...

CHASE STRANGIO: I'd be extra critical of my-

CHRIS HAYES: No, no. I mean, I guess I just sort of think there's... Isn't it the case that in some ways, every successful movement of social liberation, radical equality, ends up in a position where it's seen as conservative.

CHASE STRANGIO: If you turn to the legal system. I think there's a funda-

CHRIS HAYES: Right, you think the legalism is part of what has produced this.

CHASE STRANGIO: I do. I think there's a fundamental question about whether political organizing and legal reform change are truly compatible. And that if you're going to build power-

CHRIS HAYES: Aren't you a lawyer for the case before the Supreme Court in two weeks?

CHASE STRANGIO: Yes. So, yes. So this is a really challenging question.

CHRIS HAYES: You sound like me talking about cable news.

CHASE STRANGIO: Yes. Well, right.

CHRIS HAYES: So like, "I don't know if it's redeemable, really, frankly."

CHASE STRANGIO: And here I am doing it and being completely complicit in the whole thing. I often will start out a talk, I mean, I am a civil rights and constitutional lawyer who fundamentally doesn't believe in the Constitution and the legal system. And, yet, I think, well...

CHRIS HAYES: Definitely open your Supreme Court arguments with that.

CHASE STRANGIO: But it's like, here we are where I think it is incumbent upon us as lawyers, complicit as we are in a system that is foundationally sort of about preserving chattel slavery and a whole bunch of other things that I think we should just recognize to be the foundations, to sort of say, "Well, we are building this system. It distributes harms. And that doesn't mean we can't use it to reduce harms, but we are always going to be distributing them." And so it's not so much a question of, "Do we throw up our hands and sort of do nothing with it?" Which I think is one political choice to make. I think the choice that I have personally made is to say, "I recognize that every intervention within this system is always going to be harmful in some way. And so what I believe in is accounting for those harms, and naming them." Because by making them invisible, we're suggesting that there could be an intervention that is somehow harmless.

CHRIS HAYES: But isn't that just life? Or isn't that just politics? Isn't it the case that life involves trade-offs, and politics involves trade-offs, just inescapably? Every action you take is going to have some consequences, often unforeseen. I'm trying to make you less tortured about your work.

CHASE STRANGIO: Oh, yeah. Okay, good luck. Well, no, I'm not-

CHRIS HAYES: But, no, I just don't know how much that's like... You seem to be pegging that on the legal system, which is basically, if I hear you correctly, you're saying operating within the legal system is operating within the sphere of power, and you advocate as much as possible to reduce harms on those without power within the sphere of power while understanding that in the interaction with the sphere of power, you are essentially reifying power's hold.

CHASE STRANGIO: Yeah, that sums it up quite well.

CHRIS HAYES: So I guess my point is that, let's say you were an organizer, and you had nothing to do with that. You would still be totally tortured over a million trade-offs you were making.

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CHASE STRANGIO: I mean, I don't know that I'm actually tortured over them.

CHRIS HAYES: Right. Yeah.

CHASE STRANGIO: I think this is really the point, is that the legal system is that particular set of trade-offs that I am the most familiar with. And I see how these particular trade-offs end up hindering other things, like organizing, for example. Or base-building and power-building, because of the nature of creating a coherent legal narrative. And so then, given that this is the choice that I've made, this is the intervention that I am pursuing, I believe in making visible those trade-offs.

CHRIS HAYES: That's really well said.

CHASE STRANGIO: Because my concern is always that there's this search for the perfect intervention in the system. And that quest is a troubling one. And so I'm more about, "These are our choices. Let's see the consequences and lay them out so we can understand them."

CHRIS HAYES: My favorite metaphor on this, which I'm going to unspool here because you're a football fan, is kickoff return coverage. Basically, I always think of it this way when you think about organizing political work, legal work, intellectual work, right? On kickoff return coverage, everyone needs to run in their lane and not chase the ball, because if everyone runs after the ball then you open yourself up to a huge return. Different people do different things, and not everyone has to run after the ball. One of those people is going to get the tackle, because maybe he cuts back. If everybody goes and does the same thing, that's not- it doesn't work that way. People need to do different things.

CHASE STRANGIO: Yes. And I believe that, and I think that different people in different lanes think that they can take over other lanes with-

CHRIS HAYES: Yes!

CHASE STRANGIO: And so, and then-

CHRIS HAYES: ... Or like to offer advice. Like, "The way that you should be organizing is..."

CHASE STRANGIO: Yes.

CHRIS HAYES: Right?

CHASE STRANGIO: Or, "I'm going to define organizing as..." And you're like, "That isn't organizing. That is legal work in some sort of convoluted turn of events."

CHRIS HAYES: All right. I want to get back to this question of what this conceptual entity, of this identity that you didn't have the vocabulary for, and I want to hear about that right after we take this short break.

You didn't have as an available identity, in a sort of coherent sense the notion of being trans, when you were in college and you were sort of embedded in queer theory and thinking about all these things. How did that identity present itself to you? In a sort of conceptual way, or is it in a more personal way?

CHASE STRANGIO: I think about this a lot, because one of the things that's challenging about identity formation is that we're so influenced by sort of the narrative we think we're supposed to tell. And this is especially true with trans identity, because there's this sense of, "Oh, you're supposed to tell this narrative to get medical care." And so, for a long time I sort of... I don't know if I've reverse-engineered the truth of my experience, to be validated, or whether it was my experience. Because it's like, "The doctor wants to hear I always felt like a boy and that's why I need this." And so you start to reify that, and you're like, "Was that my experience, or am I just so used to telling it because I need the gatekeepers to believe me to be valid?"

CHRIS HAYES: That's fascinating, because that's a direct analog to what we were just talking about gay and lesbian identity with the legal system, right? The immutability is like a core thing, so if you want to get heard by the lawyers, you've got to say... And what you're saying is, if you want to get heard by the doctors, in this case, then you have to tell a story that fits...

CHASE STRANGIO: Their narrative.

CHRIS HAYES: Their narrative.

CHASE STRANGIO: They become the gatekeepers, and then the legal system becomes the next one. And so, it was not my experience that I have some sort of memory of a tortured childhood where I was like, "I am a boy, and I know I'm a boy, and nobody's listening to me." That just wasn't... That is some people's experience. It was not mine. I definitely had something going on that I couldn't name, and maybe it was because I came of age at a time when there was no trans narrative to look to, to understand myself. But I think for me, it was like the beginning of the emergence of some popular culture discourse. “Boys Don't Cry” was my real first, like, "Okay, there's this story. There's Brandon Teena's story. And I'm watching Hilary Swank play this. And there's something resonant. But not exactly, and I don't really know."

I sort of was grasping for some sense that I existed in the world, but I could never see it reflected back to me. And then I think it was really in sort of my political organizing after college, as I became involved in prison abolition work, which there's so many queer and trans people in that work, that I started to meet actual trans people, and this was in Boston. Between 2005 and 2007 is when I really started to sort of come out as trans. But I wasn't a super binary person. I wasn't like, "I am a man, and I am finally realizing that." It was sort of a slow progression of, "I realize that I can have bodily formations that exist sort of in the liminal space between male and female." The more I became comfortable with that, the more I felt at home in my body, which helps us feel at home in the world.

And that was so formative for me, to just be able to say, "So, I can change my name, and I can do some things, but I'm just sort of going to own that there is no coherent maleness or femaleness that is going to feel completely at home for me, and that is okay." That all happened for me in law school, pretty much.

CHRIS HAYES: Wow.

CHASE STRANGIO: It was a combination of political organizing, meeting trans people, the popular culture changing, and then just becoming a more competent person and sort of being able to name that for myself.

CHRIS HAYES: Let's take a 65-year-old, generally open-minded liberal, who is not particularly bigoted about trans folks, but also just a little unclear. Sometimes in ways that are not awesome, but not animated by animus. How do you sort of describe that conceptual category when the category itself rests, I think, in this really profound and liberatory way on the troubling of these categories that said 65-year-old might have as the pillars they've set up?

CHASE STRANGIO: Yeah, so I think that I, myself, I'm not the best teacher of the trans experience. My experience is not always the best, because it is so much in the middle. A lot of times people really do grasp for binaries. We can see that as parents with our children. Everyone can't even conceptualize a human without a gender.

CHRIS HAYES: It's literary the first question, it's the first thing, it's everything.

CHASE STRANGIO: It's the first. It's everything. But I think what does help is if you start to just really ask people, sort of, "How do you know what your gender is?" If you ask anyone that, they'll say, "Well, I just know."

"No, like, how do you know?"

And some people will say, "My parents told me." Some people say, "I had a brother," "I had a sister." And it's like, are you satisfied with that? Are you satisfied with that knowledge? And then, sometimes people say, "Oh, I have a penis." And it's like, is that what you want to define who you are in this sort of category that is so salient?

If you really do take the time to sit with someone and say, "For me, I just know, as much as you know, that your body is what it's supposed to be, that you are who you are, that I know that about myself too. It's just that no one believes me when I say it." And so, then when you aren't believed, then the more you're challenged, the harder it is to explain. And I think this is how we end up reifying these categories as well, through the doubt of the listener.

And so one of the things that just drives me bananas are these New York Times op-eds by cis women about what makes a woman. And there's this one from 2015 that I will never get out of my head, about Caitlyn Jenner. And it's criticizing her for being sort of reifying these norms of femininity that cis women spent decades trying to shed. And what troubles me about it is two things. One, it's as if somehow it's trans people's fault that gender exists, when it's like we are hurt-

CHRIS HAYES: It's the opposite.

CHASE STRANGIO: It's the opposite. We didn't do this to you. And then the other thing-

CHRIS HAYES: Yes, "Trans people are the ones that created gender." Yeah.

CHASE STRANGIO: "Created gender." Yes, we're the ones. It's like, "No, that's wrong." And then the second thing is this idea that a lot of trans people will say things like, "I know I'm a man because I like masculine things." The only reason we say that is because no one believes us when we say, "I just know who I am." And so we have to repeat a norm that is familiar to be believed.

CHRIS HAYES: Right. Because to go back to the Appiah point, we're all swimming in the same water, which is society.

CHASE STRANGIO: Yeah, completely.

CHRIS HAYES: We can't open up our brains to show you our private life. We have concepts and words and categories that we all share, as a matter of like linguistics. The meaning of things are their public meaning that we all agreed to through conversation. There's no way out of that, right? And in fact, the word "trans." What is happening, what happens through the process of identity formation as a sort of public activity is that we actually create new words and new categories. That's what we're doing collectively.

CHASE STRANGIO: That are contingent on the ones that were there before. And this-

CHRIS HAYES: Yes. You can't build over nothing.

CHASE STRANGIO: Yes. Which is one of the reasons why these cases at the Supreme Court are so baffling. The sort of nature of the legal rights but also material access to survival that trans people have had has been predicated on utilizing federal prohibitions on sex discrimination. And it's so intuitive, because you can't actually describe a trans-ness without thinking about sex as a category. It is that which transgresses from one side to the other.

And so of course it is inherently a part of the thing. And that's sort of the language that produces our ability to understand ourselves is the same things that we then use to leverage the systems that are in place, to then ensure our survival.

CHRIS HAYES: So let's talk about the legal world we're in right now with trans rights. And we'll talk first about the case that I think is set to be argued in October that you're working on. What is the question before the court in that case?

CHASE STRANGIO: So, there are three cases before the court that are set to be argued on October 8th. And they deal all with employment, and the central question is whether Title VII, which is the federal law that prohibits discrimination because of sex, encompasses discrimination against someone because that person is lesbian, gay, bisexual, or transgender. It's really a question of, "Does the state of federal law currently protect LGBTQ workers?"

CHRIS HAYES: It's currently, as a matter of both the interpretation of statutory law and Supreme Court law, that if someone walks in for a job and you say, "No, we don't hire women accountants," you can't do that. Or you say, "You're fired because you're a woman, and we don't like women accountants." That's clearly and flatly against the law as understood now, correct?

CHASE STRANGIO: Correct.

CHRIS HAYES: Right. So the question is, essentially, the part of the law, Title VII, the Civil Rights Act, that makes that the case: does that apply to LGBT folks?

CHASE STRANGIO: Yeah, to an employer who says, "No, I'm going to fire you because you're a lesbian," or "I'm going to fire you because you're transgender." These aren't cases where there is a dispute. They're not saying-

CHRIS HAYES: No, they're saying, "That's why we did it."

CHASE STRANGIO: They're saying, "That's why we fired you."

CHRIS HAYES: Yeah.

CHASE STRANGIO: So the state of the law currently is not just, "You can't say, 'I'm going to fire you because you're a woman.'" You also can't say, "I'm going to fire you because you are a masculine woman." And so, under our Supreme Court precedent-

CHRIS HAYES: That is currently the law?

CHASE STRANGIO: That is currently the law. So in-

CHRIS HAYES: That's interesting.

CHASE STRANGIO: Yes-

CHRIS HAYES: We've already gotten to that point.

CHASE STRANGIO: Yes.

CHRIS HAYES: You can't say, "You should be wearing skirts and not pants." And like, "Tank tops and not sweaters, then I'm firing you." Like that's not cool.

CHASE STRANGIO: "That's not cool" with some caveats. So the Supreme Court, in a decision called Price Waterhouse v. Hopkins, ruled that the prohibition on discrimination because of sex includes sex stereotypes. And in that case, it was at Price Waterhouse. An accountant who was-

CHRIS HAYES: I just pulled "accountant" out of my a--, but...

CHASE STRANGIO: She was seen as too masculine, and she didn't get promoted.

CHRIS HAYES: Wow!

CHASE STRANGIO: There was things like, "You should go to charm school, and you should wear lipstick." And the Supreme Court held, in a plurality. So it's not a straight 5-4 sort of majority decision as to the reasoning, but held that that was impermissible sex discrimination under Title VII. So, actually, that case has been sort of the foundation of the majority of lower court rulings under a host of federal laws that have been used to protect trans people from discrimination for decades. So this is not a new thing. And in fact, trans people and LGB people more recently have been experiencing quite a bit of favorable rulings in the lower courts for a long time under the Price Waterhouse "sex stereotyping is prohibited."

So we have three cases at the court. The court is going to decide this question. And we have the EEOC, the Equal Employment Opportunity Commission, under Obama had taken the explicit position as well that Title VII prohibits per se discrimination based on sexual orientation and transgender status. That is still the position of the EEOC.

Before the Supreme Court, the United States is represented by the solicitor general from the Justice Department. The Justice Department is not taking that position. The Trump administration fully supports firing workers because they're LGBT, and so they have filed a brief in both the sexual orientation context and the trans status context saying Title VII does not and should not be interpreted to cover LGBT workers.

Now here's what's more astonishing and, frankly, should terrify people even more. I mean, I think people should care about LGBT workers, but they are proposing that Title VII itself should not be understood to include the expansive sex stereotyping protections that it has included for the last two decades.

CHRIS HAYES: Oh, they want to roll back the Price Waterhouse precedent.

CHASE STRANGIO: They want to roll... Yes. They want to roll back Price Waterhouse significantly because...

CHRIS HAYES: Wow.

CHASE STRANGIO: And they have somewhat contradictory language in their briefing, but what their argument in the lower court and what their brief suggest to me is that they're advocating for a world in which employers can fire a woman for being gender-nonconforming as long as they fire a man for being gender-nonconforming as well, under sort of like a "two wrongs do make a right." Because what they want and what they believe in is like a gender-complementary world.

CHRIS HAYES: I mean, I don't know it's the case, but in Donald Trump's 50 years as a boss, has he ever fired a woman because she didn't dress feminine enough? That seems a distinct possibility.

CHASE STRANGIO: It seems really probable. And of course that happens all the time, and the law only reaches so much. But to have a sort of normative legal statement-

CHRIS HAYES: Endorsed by the Department of Justice...

CHASE STRANGIO: ... endorsed by the Department of Justice, potentially being codified by the Supreme Court, rolling back how we understand sex discrimination law, that has been sort of the very linchpin of inclusion of cisgender women in the workplace and society at large. That is what is at stake in these cases. So this is an opportunity for the Justice Department to not just make a big anti-LGBTQ announcement, which they're perfectly comfortable doing and have done in a host of contexts, but to really ask the Supreme Court to fundamentally alter the state of sex discrimination law in ways that are going to transform not just employment but education protections, housing protections, credit protections.

CHRIS HAYES: Wow.

CHASE STRANGIO: And so I think what has been lost on people, because it's this wonky statutory interpretation argument, is that this could be a wholesale redefinition of federal civil rights law. And that's just the beginning.

CHRIS HAYES: And you're working on one of those cases?

CHASE STRANGIO: Yes, correct.

CHRIS HAYES: Can you tell me about your client in that case?

CHASE STRANGIO: Yeah, so the ACLU is representing Aimee Stephens. And she was a funeral director at a funeral home in Michigan, and she worked presenting outwardly as a man. She was struggling with her gender, going to counseling. Finally reached a point, as many transgender people do, that it was like, "This is life or death. I only have one life. I have to be who I am." Came out to her wife. Her wife stuck by her. And she then decides, "I've been working for this company for six years. I'm going to tell my boss." She writes this beautiful letter explaining her struggle, coming out to her boss, and he fires her. She loses her job. She loses her health insurance. Her entire life becomes precarious.

This is in 2014. Obama is president. The EEOC brings the lawsuit on her behalf, so that the lawsuit is actually the EEOC versus the funeral home. So they are the parties in the case. We intervened on her behalf after the election out of concern that the EEOC would no longer defend the interests of Aimee.

Aimee StephensCharles William Kelly / ACLU

CHRIS HAYES: That'll be one of the three cases that are consolidated and argued October 8th.

CHASE STRANGIO: Yes.

CHRIS HAYES: You're also working on the lawsuit to attempt to block the proposed ban on trans soldiers in the U.S. military. What is the status of that case?

CHASE STRANGIO: So, trans people, obviously, have been around forever. But I think we started to become more visible in public discourse and popular culture in sort of the 2010s. And one of the things that happened was that at the end of Obama's second term, you started to see a lot of regulatory changes that allowed for inclusion of trans people quite explicitly in a host of contexts, including in schools and the military, in the context of the Affordable Care Act and accessing healthcare.

And the second the Trump administration came into power, they were systematically taking these things away. So rescinding the education guidance for trans students was one of the first things that Sessions and DeVos did in February of 2017. Shortly thereafter, there had been an attempt in Congress to restrict access to healthcare for trans service members. That failed at the time in the Republican-controlled House. And that was really shocking to the right. And-

CHRIS HAYES: I remember being amazed that that failed.

CHASE STRANGIO: Yeah, it was amazing. It was Rep. Vicky Hartzler's amendment. It was a big win. And apparently, the stories are that Donald Trump was frustrated, and so in July of 2017, sort of out of nowhere, to the surprise of everyone including his defense secretary, he tweets the trans military ban in a series of three tweets. And we-sue along with a number of other people to try to stop the ban from going into effect in the summer of 2017. Those lawsuits are initially successful, and then they sort of, as they did in multiple executive action contexts, issued a sort of modified version of the ban that was pretty much the same thing, but sort of more palatable to the courts, and that was proved harder to stop, and ultimately, the Supreme Court lifted the injunctions, so the ban is currently in effect while the cases are being litigated in the lower courts. So it's unlikely to be resolved through litigation before the 2020 election.

CHRIS HAYES: How do you understand the Trump administration, the Republican party, the political right's targeting of trans folks as a priority for their agenda?

CHASE STRANGIO: I mean, I think one of the things that I have always seen about looking at trans people is that we are a very easy target because it's easy to peel our allies away from us, so you can sort of align yourself quickly with even liberals who are uncomfortable with trans existence. You can even, you know, there are LGB folks who are like, "Just leave them behind." So, we can really be a canary in the coal mine of what's coming, and I think of North Carolina as a perfect example of this because in North Carolina, the state of North Carolina, you have a place that had a very strategic GOP takeover of their estate legislature, and you could see the testing ground of a lot of different things. Voter suppression laws, anti-immigrant laws, and anti-trans laws. So, there was something about the fact that trans-ness, again I think because we exist in this, at times, liminal space as a threat to the coherence of gender norms, which is what the right relies on so heavily to control and surveil people's bodies that we're an easy and first order target.

CHRIS HAYES: To me, the other side of that coin, to get to your point about the ways in which the LGB movement particularly worked in this kind of conservative domestic register on marriage equality. The flip side of that is that there is something unavoidably radical, a radical challenge to gender norms posed by trans-ness that gayness and lesbian-ness doesn't, right? To me, it speaks to the fact that there is something fundamentally, and I'm saying this in a good way. I think these are frameworks that deserve to be disrupted, but it is inescapably disruption, right?

CHASE STRANGIO: I want it to be, but even here you can see, look, the first turn towards the military as first order reform-

CHRIS HAYES: Right. That's also the history of every civil rights-

CHASE STRANGIO: It is.

CHRIS HAYES: I mean, Truman integrating the army is one of the first big 20th-century civil rights moments.

CHASE STRANGIO: But when you're at the stage where your movement doesn't have formal equality, I think you're eager to say, "Let's not do the same thing." So we could have, in the LGB movement, we could have said, "Instead of the turn to the state for marriage as the organizing principal of the family, why not demand universal healthcare?" One of the big things was, and I realize it's not incumbent upon the group that is excluded to transform the system for everyone, but if you're a left leaning person within that category, you're like, "Well, formal equality doesn't achieve what it sets out to achieve." Now, it does achieve something. I get that. The Civil Rights Act of 1964 is an incredible achievement. Brown vs. Board of Education is an incredible achievement. We have a long way to go in realizing anything close to the eradication of white supremacy and actually disrupting-

CHRIS HAYES: Even school desegregation-

CHASE STRANGIO: Is a complete other-

CHRIS HAYES: Right.

CHASE STRANGIO: We're not there. So I guess the question is, yes, you can say every civil rights movement follows this trajectory, and now we're at the trans movement going to consolidation of identity, military, formal equality, and of course that is the blueprint, so we follow it. But I think there's a real question about, how is it done and what is lost? So I think there is a way where trans-ness could be seen as an inherently liminal and disruptive, but then at the same time, you have these super binary trans people who are out there in the world, and they exist, and their identities are real, and that is part of the "We look just like you." It's just as easy to follow that model. So, I think where we are is we're in crisis, and the Supreme Court, we have to hold the line.

So, for my perspective that there are material goods are on the line, this isn't an abstract question of formal equality anymore because the threat is taking something incredibly significant away, and while we hold that line however, what are the norms that we're willing to entrench? And I think those are hard questions when you're a movement lawyer because the legal system demands of you quite a lot of compromise, and in doing that level of compromise, you are leaving behind a lot of people, so as you're holding the line, as you're engaging in harm reduction, I think there's a lot to really reflect on and say, "I have a lot of power in this moment. I am making these arguments to the Supreme Court. There are some I am not going to make." And I think we've really learned that over time more and more, and I hope that the more we learn from each other, the more we're able to not rely on arguments that are actually affirmatively damaging to others.

CHRIS HAYES: You talked about “Boys Don't Cry,” and two things are striking me. One is the rapidity of cultural change in terms of representation in the last two or three years, four years maybe, which isn't to say it's adequate, but just if you graphed it, there's a real uptick in the last three or four years in terms of mainstream representation of trans folks, and then also I'm sort of fascinated by the ways in which understanding of gender, gender identity, and particularly gender fluidity are increasingly common embedded in younger people. I don't have a ton of interactions with 14-year-olds or 17-year-olds right now, but my sense, and particularly even just looking at my young kids is their set of normal is really different than what our set of normal was 20 years ago, and 20 years before that, and I wonder how you think about how that cultural change works.

CHASE STRANGIO: I mean, I am someone who's like I love consuming popular culture, so like I said, I was looking for it, so I like it, I think representation is incredibly powerful. I joke that 10 years of litigation on trans rights was not as effective as Laverne Cox saying, "Google Gavin Grimm," at the Grammy's. That moment was as transformative as our years of litigation, and they were related-

CHRIS HAYES: Yeah, of course.

CHASE STRANGIO: And there's-

CHRIS HAYES: Gavin Grimm had a lawsuit.

CHASE STRANGIO: Gavin Grimm had a lawsuit, and litigation is storytelling, and I believe in the law of storytelling, so I think it's all related, I think that we reflect back to each other-

CHRIS HAYES: Let me just say that Gavin Grimm is a trans student in Virginia who sued his school board for them denying him access to the bathroom that he wanted to use.

CHASE STRANGIO: Yes. And it went up to the Supreme Court, it got sent back down after the election, and it's actually still being litigated, even though he's graduated high school years ago.

CHRIS HAYES: Right.

CHASE STRANGIO: So, I think about this a lot. I think representation is critically important. It changes the ability of young people to see themselves in the world and therefore name themselves, which is in and of itself survival. It would have been for me. I remember desperately on dial-up internet in my mom's house when I was 16 years old trying to find clips of things in my repressed queerness, and there was nothing that resonated back to me myself, so this is a huge moment. One thing I will say as a caution is that trans people have often been consumed as sort of interesting, exotic, fetishistic things, so there's a way where we fit nicely into the consumptive culture of fashion, movies, it's-

CHRIS HAYES: Thrillingly transgressive.

CHASE STRANGIO: Yeah, in an, "Oh, I'm going to," ... Tons of people watch trans porn. You know they're hating on us, but they're consuming our bodies in this way because it's sort of like when people are gender transgressive, that something signals something sexual and deviant, and that then makes people think about sex, so there's this very way in which particularly trans women, trans women of color are sexualized or criminalized as sex workers, so it's not unrelated into how representation has taken off, so we have to really think about that because then in turn, the people who aren't on the big screens are still on the street being attacked and criminalized because there's a backlash to the very notion of seeing that which was formerly unseen.

CHRIS HAYES: Right.

CHASE STRANGIO: And something that's really interesting is that two trans actors who are in popular culture in a big way right now were formerly plaintiffs in these big lawsuits. So Hunter Schafer, who is on "Euphoria," was one of our lead plaintiffs in the challenge to HB2 in North Carolina, and Nicole Maines, who is on the CW also challenged her school district's exclusion of her from the restroom when she was a young girl. And what's interesting about that is they are both incredibly gender conforming, attractive, white girls who served to both the vehicle of telling a story in the courtroom and telling a story to broader popular culture. So, these are the overlapping sights of power, so the same trans bodies are- they are agents in their own right, I don't mean to say that, and I think if you talked to either of them, they would acknowledge this, that there is something about their privilege and how their gender and their bodies are seen and understood that is a vehicle in the courtroom and a vehicle on the television.

CHRIS HAYES: How do you talk about gender with your child?

CHASE STRANGIO: What's interesting is that, one thing that you mentioned is that our understanding of gender is sort of evolving and young people's understanding is evolving, but yet I see in parenting, it's almost like we're regressing in a lot of ways. Stores are more gendered in their toys, car departments are more gendered. So, I've really seen a sort of, even among progressive parents, there is a real reliance on gender as an organizing reality-

CHRIS HAYES: I will say that my experience of being- I have three children, I have a girl, a boy, and a girl, seven, five, and 20 months, or at least that's how I'm labeling them now, I don't know, but the force of gender propaganda that you experience as a parent is just- and I think particularly because my wife and I think about this a lot, and she was a gender studies major, and it's wild how intense it is. And it's so crazy too how everyone's like, "Oh, the boys just want to play with the toys." There's also this weird story that people feel the need to talk about, like, this essential biological nature revealing itself and, "I tried to give her the truck and she didn't want the truck." That might be true. All sorts of kids want all sorts of things, but it's also like, it's crazy how intense it is.

CHASE STRANGIO: It's starting at birth.

CHRIS HAYES: It's really intense.

CHASE STRANGIO: People glue bows on their bald babies to make sure everyone genders them correctly, so for me, I think one of the things I say a lot is in my home, we talk about bodies and behaviors as not falling within a binary, so as much as you would say girls can be anything, I would say any body part can be on a girl, and any body part can be on a boy, because it simply wouldn't work in my house to say something else because my body doesn't look like a typical boy's body or a typical girl's body, so my kid understands me as her father, and I am her father, and I don't look like the boys that she knows to be boys and those genital characteristics, so her conception of the world is that there are these categories, they exist, they are absurd in her mind in a lot of ways, and you just claim that which works for you.

And I think you can see a lot if you take away those assumptions, both as assigned to the body and as assigned to behaviors, much really isn't preordained in the ways that we see and how the self-segregation of kids by genders that happens at an incredibly young age, if we didn't impose so much on them, it would happen so much less. And it's a shame because we tolerate segregation of gender in society in ways that we presume to be neutral when it is not.

CHRIS HAYES: What do you mean by that?

CHASE STRANGIO: Gender specific restrooms, gender specific dress codes. We sort of say- we tolerate them. We're like, "Girls wear these kind of bathing suits."

CHRIS HAYES: It's not tolerating-

CHASE STRANGIO: We rely on them.

CHRIS HAYES: Yeah.

CHASE STRANGIO: We organize society-

CHRIS HAYES: We don't barely tolerate genders-

CHASE STRANGIO: Right. That is a really well taken point. It is in fact we rely on them.

CHRIS HAYES: Heavily.

CHASE STRANGIO: So, there is no other category that is protected in the law, just to take one example, that we would tolerate segregation in. We couldn't say this religion goes in this bathroom, this religion. And of course, the legacy of white supremacy is unique in that there's nothing like anti-black racism in the United States. So it's not that all forms of segregation are the same, but the reliance on segregation of gender as an organizing principal of society has very serious costs in terms of care taking labor, in terms of access to the workplace, in terms of-

CHRIS HAYES: This gets back to the radical disruption to me of a lot of Judith Butler's work and others, is just we think of it, we're taught to think of it as essential cleavage in the universe. There's a line, I think philosopher Wittgenstein where he talks about cutting the world at its joints, right? That categories make sense in some sort of deep and satisfying way, and we think of gender of being that, that gender cuts the world at its joints, that binary is as old as time, and languages have two genders in the way they have adjectives, and this is just a universal truth about the universe.

CHASE STRANGIO: And I think that of course it's just not true because there are girls that have penises, and there are boys that have vaginas, and there are bodies that vary in every way in between, and I think one of my hopes for the trans discourse in the future in the law and in society is that we don't fear the body, we don't fear the truth of our body because the reality is that the more we hide that we have bodies that don't neatly compartmentalize into male and female, the more this continues. But the reality is that naming the biological realities of male and female is as much a social and political choice as the behaviors that we associate with sex.

CHRIS HAYES: Yes, there's a book by a professor at Brown, Anna Fausto-Sterling called "Sexing the Body" which is an amazing book, which is actually just a book that says, "Look, okay, fine. You want to check with the biology? Actually, the biology itself is super complicated, and in fact, the way that the biology is dealt with at birth is completely over-determined by the cultural category." So doctors give medical interventions on newborns to make sure that body parts essentially conform to social expectations. It's actually the social expectation that's driving the physical intervention with the actual natural body.

CHASE STRANGIO: Which is an assaultive intervention that actually has real harms and costs, and I think the weaponization of so-called biological sex in the law is a wholly new construction. This is a new political construct that's designed to exclude, not to define.

CHRIS HAYES: But it is the case. I'm not trying to argue some reaction or eversion of this, but I guess what I do want to say is that the depth to which we all swim in the sense of gender essentialism is intense and hard to overcome.

CHASE STRANGIO: Agreed.

CHRIS HAYES: It really is.

CHASE STRANGIO: It is my life's work.

CHRIS HAYES: Even for myself. There's some level at which I intellectually think that it's all constructive, but just the mythos of it is so deep and so hammered into us that to me it takes actual intellectual effort, the undoing.

CHASE STRANGIO: I think that's right, although I think that at that base level, but when we think about the distribution of social goods and society being organized, the reality is that we don't organize society on the body in the way that we talk about it when trans people come into the picture. It's not like there's someone standing outside the bathroom checking your genitals.

CHRIS HAYES: Right. That's totally true.

CHASE STRANGIO: We actually organize society based on a self-determination of gender, so it's like-

CHRIS HAYES: Yes, we do not show an ID.

CHASE STRANGIO: We don't show an ID and we certainly don't show our genitals when we walk in the bathroom, thank God, but it's sort of like-

CHRIS HAYES: That's a great point.

CHASE STRANGIO: That is how-

CHRIS HAYES: That's cultural definition right there and self-definition. We all just take it for granted that you self-define. Before trans people came into the picture, there is no regime that's created-

CHASE STRANGIO: Completely. It's only after the fact to exclude, so it's-

CHRIS HAYES: Right. Because the disruption represents such a threat.

CHASE STRANGIO: It is a huge threat, but it is one that is also, and one of the things that we always talked about is let's say everyone was like, "Oh, in 1964, Congress couldn't have meant that trans people were included because that would mean that trans people could use the bathroom." But if I walked in to Congress in 1964 and said, "Where's the bathroom?" They would send me to the men's bathroom even though my genitals don't align. So actually we organize things by so many cues that it's not as neat. They think their rule is neat and that our rule is messy.

CHRIS HAYES: That's right.

CHASE STRANGIO: But the reality is it's all messy, and we make choices, so I think that over time, we're just going to see that we're making these choices, and the more comfortable we are with the reality that your rule is no neater than ours, that we're just going to have to come to terms with the fact that you might be peeing next to someone with different genitals than you, and that's just been true forever.

CHRIS HAYES: Chase Strangio is a lawyer at the ACLU, a member of the legal team that is representing Aimee Stephens before the Supreme Court this October. Someone that I read regularly on the Twitter.com. Thank you so much, really appreciate it.

CHASE STRANGIO: Thanks, Chris.

CHRIS HAYES: Once again, my great thanks to Chase Strangio, who is a lawyer for the ACLU. I just learned so much. I'm still thinking about the conversation days later. I hope you will too, and I think it's one of those, Chase is such a deep, profound, and compact thinker that it's one of those conversations that I think I'm probably going to listen to a few times to make sure that everything penetrates. So, huge thanks to Chase for that. Like I said up in the intro, there's a ton of conversations we've had about identity, and you can check those out over on our website, we will post some links to those.

Also, some WITHpod news, exciting, we just announced a live podcast that's going to be taking place at the Texas Tribune Festival in Austin, Texas with Senator Ted Cruz. To find out more about how to see us there, you can go to the website for the festival, it's Festival.TexasTribune.org. It's part of a larger project we're going to be announcing very soon. You can keep an eye out for that, but for now, if you happen to be in Texas, if you would like to see me and Ted Cruz have a conversation, which I think is going to be fascinating for a bunch of reasons, you can go to Festival.TexasTribune.org and keep your eyes peeled for a bigger announcement about more live WITH pods coming your way.

As always, you can tweet us with the hashtag WITHpod, email WITHPod@gmail.com, we'd love to hear your feedback.

Related:

"Sexing the Body" by Anne Fausto-Sterling

"Trump's fight to make transgender discrimination legal may make all sex discrimination legal again" by Chase Strangio

"Mario Lopez's comments about transgender kids aren't just dumb. They're dangerous." by Chase Strangio

“Futureface” with Alex Wagner

The Personal is Political with Brittney Cooper

Rethinking Identity with Kwame Anthony Appiah

"Why Is This Happening?" is presented by MSNBC and NBC News, produced by the "All In" team, and features music by Eddie Cooper. You can see more of our work, including links to things we mentioned here, by going to NBCNews.com/WhyIsThisHappening.