In this article, I examine how conflicts over transgender bathroom rights have ignited debates concerning the fundamental nature of transgender identity. Through an institutional and discursive analysis of North Carolina's House Bill 2 or “bathroom bill,” the Title IX case in Gloucester County School Board v. G. G., and similar federal court cases, I explore how and why forces both on the right and in the LGBTQ movement have come to rely on scientific expertise to legitimate their conceptions. As conservatives have marshaled evidence to challenge notions that transgender identity is innate, LGBTQ and transgender organizations as well as the American Civil Liberties Union have crafted a “born this way” biopolitical construction of transgender identity. I find that at their core, these conflicts are over the meanings of gender and sex in relation to transgender identity. Conservatives posit sex as biologically rooted and gender as a psychological phenomenon, whereas transgender advocates subsume gender identity into the definition of sex in arguing that constitutional and federal civil rights law must recognize gender identity as a biologically constitutive element of sex. I conclude by noting the limits of a liberal assimilationist and litigation-centric transgender politics and by exploring alternatives to this biopolitical form of transgender political identity.

Policy representation requires legislators to advance the interests of their constituents. As a consequence, much research on representation examines the congruence between constituents' preferences and legislators' behaviors. This article argues it is more realistic to think of policy representation as listening—a process—than congruence—an outcome. Listening involves legislators monitoring constituent interests and using that information in making decisions. Using data from a survey of state legislators in 26 states, this research finds that monitoring contributes to using constituent information and offers a measure of listening based on these two behaviors. Furthermore, it finds that compared with the decisions of others, the decisions (measured as cosponsoring gay, lesbian, and bisexual [GLB] issue legislation) of legislators who listen are more strongly influenced by district preferences (measured as district votes on same-sex marriage ballot initiatives). This suggests that listening contributes to representation.