Holly Thomas, President Joe Biden’s pick for a lifetime seat on a powerful U.S. appeals court, got her Senate confirmation hearing on Wednesday.
But Republicans on the Judiciary Committee decided to make something else the focal point of the hearing: their own transphobia.
One by one, GOP senators used their allotted time for questions with Thomas, a civil rights attorney up for a California-based seat on the U.S. Court of Appeals for the Ninth Circuit, to talk about a months-old case of sexual assault at a high school in Loudoun County, Virginia.
The May attack involved a teenage boy allegedly assaulting a 14-year-old girl in a school bathroom. Conservative media outlets seized on the incident after the parents of the victim claimed the attacker was “gender fluid” and wearing a skirt during the attack. Authorities have not confirmed either of those details.
The victim’s parents also criticized the school’s policy that lets students use public bathrooms that correspond with their gender identities, suggesting the policy made it easier for an assault to take place. But at the time of the alleged assault, that rule was not in effect, The Washington Post reported. More importantly, there are already laws protecting people from criminal conduct in public restrooms, and there is no evidence that gender-segregated restrooms are safer than unisex restrooms.
The teenage boy was allowed to transfer to another school after the incident, and in October, he sexually assaulted a second teenage girl in a classroom. He has since been detained and charged, and Loudoun County school officials have apologized for the way they handled the situation.
There is no evidence the teenage boy was in a skirt at the time of the assault, or that he identifies as gender fluid or transgender. In fact, these claims appear to stem from the victim’s father saying he heard the boy “is apparently bisexual and occasionally wears dresses,” per an Oct. 19 report by Media Matters.
But on Wednesday, Senate Republicans went ahead and used the incident to push the false narrative that girls are unsafe in bathrooms shared with transgender women.
“Last week, we learned that the Loudoun County school board in Virginia covered up the fact that a male wearing a skirt had sexually assaulted a 14-year-old girl in the girl’s bathroom at the school,” said Sen. Chuck Grassley (R-Iowa), the top Republican on the committee.
“In 2016, you argued in multiple briefs that concerns about the safety of young girls in school bathrooms were unfounded,” he said to Thomas. “In light of the troubling news about Loudoun County, do you still believe that concerns about safety and privacy, especially for young girls, in school bathrooms are [not] valid?”
Thomas, who is currently an L.A. County superior court judge and previously worked for the Department of Justice’s Civil Rights Division, said she was special counsel to the New York Solicitor General’s Office in 2016, and the briefs she filed at the time represented the views of her client. She said she wasn’t familiar with the Loudoun County case.
“As a judge, I know that my role is to set aside whatever it is that I did as an advocate and be guided only by the law,” said Thomas. “That, I promise you, is what I do now and what I will continue to do if confirmed.”
But Grassley kept talking about Loudoun County. He referenced a brief Thomas filed in 2016 opposed to North Carolina’s then-policy banning transgender people from using public restrooms that matched their gender identity. Thomas argued in the brief that privacy curtains and separate changing spaces were sufficient for ensuring girls’ safety.
“How would privacy curtains or changing spaces have prevented the sexual assault in Loudoun County?” asked Grassley, before acknowledging that Thomas didn’t even know about the case.
“I guess you said you didn’t know much about that,” he added, appearing to give away the game that Republicans simply want to keep the story in the news: “It’s really to get the news out here, so I’m going to go onto another question.”
Republicans certainly seemed to have coordinated in advance to keep a spotlight on the Loudoun County incident ― and to fuel transphobia around it.
“Do you stand by your comments in these  briefs that there is no evidence of violence or crime in restrooms by allowing biological males to use biological females’ restrooms?” asked Sen. Josh Hawley (R-Mo.).
“It should not be lost on you how unsettled that Tennesseans that I represent are by your nomination because of what you have said about the transgender rights and the assault that happened in Loudoun County,” said Sen. Marsha Blackburn (R-Tenn.). “People want to know that their children are going to be safe.”
“I want to get back briefly to what Sen. Hawley was talking about,” said Sen. Mike Lee (R-Utah), referencing one of her 2016 briefs relating to bathrooms.
“You said that, ‘In states where nondiscrimination protections are already law, Texas’ predicted safety harm has never materialized.’ It then went on to classify Texas’ concerns as ‘anxiety about possible future bathroom crime as nothing more than unsupported speculation,’” said Lee. “How would anyone know in that circumstance … that no harm could ever materialize?”
Thomas responded to Lee, as she told the other GOP senators, that she was representing her clients in those cases.
“You’re aware of the recent incident that’s come to light in the Loudoun County district?” asked Lee.
“Well, I wasn’t before this morning,” said Thomas.
So why did Republicans want to keep talking about a case of sexual assault in a Virginia school, especially when Thomas said she didn’t even know about it?
One possible reason is that the Virginia governor’s race is in a dead heat less than two weeks out from the election. Ginning up GOP voters by stoking transphobia is one way to get them out to the polls and tip the election. It’s hard to see it as coincidence that national conservative media outlets are amplifying this narrative at the same time that GOP senators weirdly made it the focus of a hearing for a nominee for a California-based court seat.
“It seems the women and girls never have any rights.”
– Sen. Ted Cruz, a proud supporter of Texas’ extreme anti-abortion law.
In a moment of under-appreciated irony, Sen. Ted Cruz (R-Texas) lamented during the hearing that “it seems the women and girls never have any rights” ― just weeks after saying he was “proud” of Texas’ extreme anti-abortion law, SB 8.
Cruz also questioned whether Thomas was telling the truth about not knowing about the sexual assault incident in Loudoun County.
“You testified to this committee that you were not aware of what happened in Loudoun County until this morning,” he said. “I find that remarkable for someone who has spent years as one of the leading activists for allowing transgender biological men to use girls’ restrooms and women’s restrooms.”
Cruz kept talking after his time was up, but Sen. Alex Padilla (D-Calif.), who was chairing the committee at the time, cut him off.
“With no other members expected for questions,” Padilla said, as Cruz tried to interject with more criticisms of Thomas, “let me thank Judge Thomas for appearing before us today.”
Thomas now awaits her committee vote, which has not yet been scheduled.