For Pride Week at UB, the LGBTQ Faculty and Staff Association, and the Office of Inclusive Excellence had held a Lunch & Learn event in The Buffalo Room this past Tuesday. Noa Ben-Asher, who teaches at St. John’s University School of Law in Queens, N.Y., spoke at the keynote, arguing that the Supreme Court is caught in self-contradicting definitions of sex and gender, and that the resulting instability could offer civil rights advocates an unexpected opening.
They went further, stating that the Supreme Court’s failure to settle on a clear definition of sex has created what they describe as “gender trouble” — a term borrowed from queer theorist Judith Butler — that could be leveraged through a new legal framework.
Ben-Asher, who has studied transgender law for roughly two decades, said a close reading of the 2025 Supreme Court case United States v. Skrmetti, which upheld Tennessee’s ban on gender-affirming care for minors, revealed the profound level of incoherence at the court’s core. Some justices relied on genetics to define sex, others on chromosomes and none agreed with the definition used in the statute they upheld.
That confusion, Ben-Asher argued, extends beyond Skrmetti to three other major transgender-related cases recently considered by the court, Chiles v. Salazar, Mahmoud v. Taylor and Mirabelli v. Bonta. Ben-Asher said the cases reflect three consistent patterns: an assumption that being transgender is a bad outcome to be prevented; asymmetric treatment of parental rights that favors parents seeking to change a child’s gender identity over those seeking to affirm it; and a systematic transfer of authority away from medical expertise toward religious viewpoints, largely through First Amendment claims.
Ben-Asher proposed a strategy to abandon “gender identity” as the central legal concept and instead contest the meaning of sex itself.
“Let’s say there is no gender identity,” Ben-Asher said, describing the move as a form of “legal judo” against the conservative position. “Sex has many characteristics. Those characteristics can change. We can think about a liberty framework, a freedom to change whatever characteristics of sex one would want to change.”
Ben-Asher established the argument in the Due Process Clause's substantial liberty protections, drawing a parallel to abortion rights, while acknowledging the doctrine is under significant pressure from the current court.
Ben-Asher also drew parallels between the Trump administration’s early executive orders on gender — including one titled “Restoring the Truth of Biological Sex” — and the collapse of the Weimar Republic, Germany's first democracy established after World War I. They cited social contagion rhetoric, military purification campaigns and the conflation of racial and gender policy as shared features of both periods.
“This is not a neutral act of statutory interpretation,” Ben-Asher said. “It is a white nationalist political project, dressed in the language of biological truth and the protection of women and children.”
The comparison resonated with one of the faculty members in attendance. Eliza Lefebvre, Undergraduate Coordinator for the Department of Industrial and Systems Engineering, said the lecture reinforced convictions she had long held.
“I knew that nothing was guaranteed,” Lefebvre said, “but everyone should have rights. And those rights should be guaranteed.”
Ben-Asher closed on a note of cautious optimism, stating that the current instability around sex and gender categories represent a rare historical window that demands engagement rather than despair.
After the talk, when asked whether someone should have control over others, Ben-Asher said, “I don’t think so. I think we should be free.”
The features desk can be reached at features@ubspectrum.com
Photo: Courtesy of Central Michigan University
