Brynn Tannehill

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Trans people are in the midst of a second Lavender Scare

To be trans in the U.S. is to know fear. It is a companion that travels with us constantly: from the moment we realize we are trans, to coming out, to transitioning, and now into our lives long past the point where we should have faded away into anonymity in days past.

We are in the midst of a second Lavender Scare, and in many ways this is far more dangerous: even Christine Jorgensen wasn’t barred from receiving hormones or being within 2,500 feet of children simply for being transgender. 

I have been called a doomsayer who profits from prognosticating an inevitable end. This is not precisely true: there is hope, if precious little of it. We can all clearly see the situation deteriorating rapidly in red states, with (at best) spotty resistance from the Democratic Party as a whole. We can see the effects of this deterioration as transgender people not only ask how to flee, but actively do so now. But most in a poverty-stricken community, however, lack the money or resources to flee.

There’s an eerie similarity to 1933, when people sold everything they owned, with no job waiting for them, just to get away from what they saw happening and coming. Others look at what it will take to get to another country, even as those countries are not yet ready to grant trans people asylum or refugee status. Most can only tell you that it’s getting bad, and that they’re afraid of what their government is preparing to do to them, even if they don’t know exactly what that will be. However, with nowhere to go, and no country particularly wanting transgender people, I find myself dreading another S.S. St. Louis moment in history.

There’s an authoritarian party in permanent power in half of the U.S. They’re making it clear that they intend to seize permanent federal control and bring their vision of a shiny, godly America to the rest of the country by any means necessary. They’re ready to destroy the Union and our democracy to save it from “wokeness.” And they have sold their base on the idea that the No. 1 threat that the country must be saved from is transgender people.

State level anti-transgender bills are becoming both more numerous and draconian year after year.  The Overton Window of anti-trans legislation keeps shifting further and further to the right. For example, first they wanted to ban transition-related health care for everyone under the age of 18. Then the bills started putting the age at 21. Then, this year, we saw Oklahoma propose banning it for anyone under 26. Texas followed by passing a resolution condemning it for people of all ages. 

Now Oklahoma has proposed a law that would ban providers who take state or federal money of money of any sort (e.g. Medicare or Medicaid) from providing transition-related care to anyone of any age. This means thousands of people who transitioned years ago will no longer be able to refill their prescriptions. Access to medical care will become a right that exists in theory but not in practice, like suffrage in the Jim Crow South. 

It’s not just medical care. It’s sports, bathrooms, birth certificates, driver’s licenses, bans on “drag”, required misgendering, and forced outing. The creativity of this performative cruelty seems endless. Of these though, the “drag” bans are the most devastating. These laws are deliberately written as to be so vague and overly broad that a symphony orchestra with a transgender 2nd clarinet, or a family with a trans child doing a sing-along in the car would be considered obscene. In West Virginia, SB252 and 278 single out transgender people (and not just drag performers) to declare that their mere presence in public is obscene.

Not only are the scope of laws increasing; the sheer number is growing exponentially. In 2018, there were 19 anti-trans bills proposed in state legislatures. By 2020 it was 60. Last year it was 155. Now, in 2023, we surpassed the 2022 total by the middle of January and are well on our way to more than 200. Even so, these numbers don’t tell the full tale.

In years past, only perhaps 10% of these bills would pass, usually after opposition and debate. Now, we’re seeing bills introduced, sent to committee, debated, and sent to the floor in 24 hours. There is simply so much happening so fast that trans people cannot put together opposition in time to speak against these bills, whereas conservative legislators coordinating with religious legal groups always have “experts” lined up and ready, since they know exactly when and where the bills will be heard ahead of time. The result is that in a year where a record number of anti-transgender bills are introduced, a record percentage, and a record total, will be passed.

Trans people are not doomed, but we’re clearly on an accelerating trajectory to the end of the community in at least half of the U.S. Reversing these trends, and preventing a nationwide destruction of the community, requires numerous highly improbable things to happen. This includes Republicans moving on from the moral panic about trans people, deciding that they’ve gone far enough already with their oppression at the state level, or the courts overturning anti-trans laws. None of these seems likely.

Additionally, there remains the fear that even states with sanctuary laws, like California, will not remain safe forever. Republicans in Congress have made it clear that should they take power in 2024, they intend to pass nationwide laws similar to those at the state level. The odds of the GOP taking full control are frighteningly high: the Senate map in 2024 for Democrats is very bad, Biden’s net approval is where Trump’s was in 2020, and gerrymandering makes taking back the House difficult.

Masha Gessen’s rules for surviving autocracy state that “your institutions will not save you.” This is true for trans people now in several ways: neither courts, the Democratic Party, nor the media seem prepared to stand up for us as the situation goes from hostile to non-survivable. There’s the open question of whether the courts will uphold sanctuary laws. When Texas demands the arrest and extradition of trans people (or parents of trans youth) who have fled to a sanctuary state, it seems unlikely that the current Supreme Court will do anything but what their Christian nationalist masters tell them to. It’s also unknown whether a state like California would defy the courts and break the union over trans people or women seeking an abortion. 

Then there’s the news media, the fifth estate that is supposed to be the light of truth shining on darkness. Instead, half of the media ecosystem is leading the charge to brand transgender people as an existential threat to women, children, and society. The other half, like Reuters, the New York Times, and The Atlantic, produce poorly thought out “both-sideism” and concern troll pieces that amplify and reinforce the narratives of the side that believes the ideal number of transgender people in the U.S. is zero.

Trans people have precious few people that they know will go to the mattresses for them. We’re already seeing who on the left and center is stepping aside, or even joining in, to let self-proclaimed Christian fascists like Matt Walsh have their way. Not only can it happen here, but it is happening now, at this very instant, to the sound of deafening silence from the people who swore without irony “never again.” 

The American public, for their part, either doesn’t know or doesn’t care. It’s just happening to “those people.” Most trans people cannot enunciate all the factors that have them afraid, and why they form an interlocking system of failures that make recovery from the trajectory we’re on improbable. They just know that things are getting worse, and they don’t see how it will get better. Like animals before an earthquake, they know something is very wrong, even if they can’t explain why, or get anyone to listen.

All they know is that they cannot get out, the unstoppable power of the government is coming, and no one is coming to the rescue. For those who cannot flee, and cannot survive the laws about to be passed, the end comes soon. Drums, drums in the deep.

Brynn Tannehill is a senior analyst at a D.C-area think-tank and author of ‘American Fascism: How the GOP is Subverting Democracy.’

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Is This The End Of The LGBTQ Movement As We Know It?

People tend to regard history as a stream of progress that only flows one way. The LGBTQ rights movement has experienced great success over the past 35 years passing laws and fighting court cases to make discrimination against LGBTQ people illegal. The crown jewels of these achievements are marriage equality, state and local nondiscrimination laws, and the legal interpretation of Title VII of the 1964 Civil Rights Act to protect transgender people on the basis of sex.

In the next five years, all of that is probably going away, and there won’t be a path to reclaim that progress for at least a generation, if not two or three.

Late last month, something happened that escaped the notice of most of the progressive press. The conservative plan to end the LGBTQ rights movement as we know it snapped into clear focus. It’s not a short term plan, but one that will take place inexorably over the next five to ten years. The scary part is that it is not just feasible, but also highly likely to succeed, and there’s very little the movement can do to prevent its own demise.

Related: Will the Supreme Court reexamine the Civil Rights Act? 

Their long term strategy for the Supreme Court is to do two things. First is to interpret Obergefell v. Hodges as narrowly as possible, such that the decision only guarantees the right to get your name on a license and a death certificate. The second is to lay the groundwork for the Religious Freedom Restoration Act of 1993 (RFRA) to nullify almost all legislation, case law, policies, and regulations protecting LGBTQ people. Once this is accomplished, the protections for transgender people under the 1964 Civil Rights Act will almost inevitably fall, along with protections for women and other minorities.

To achieve both, all they have to do is keep planting the seeds in dissents to court opinions, and wait for Kennedy and/or Ginsburg to retire. Kennedy is already dropping big hints that he will retire after the next session of the Supreme Court. Once Kennedy retires, he is almost certain to be replaced by someone with a legal philosophy nearly identical to Justice Gorsuch, given The Heritage Foundation and The Federalist Society are the source of the list the Trump Administration is using to pick Supreme Court justices.

So what does the legal path to the LGBTQ civil rights armageddon look like? Here’s what’s probably in store for us.

The Gorsuch Era Begins

On June 26th, the Supreme Court issued a per curiam decision in the case of Pavan v. Smith, in which the state of Arkansas was argued that two sets of married lesbian parents could not be on the birth certificate of their children. In both cases, the children were conceived by anonymous sperm donations. A heterosexual married couple who conceived in the same way would legally be allowed to have both their names on the birth certificates, and thus differential treatment was clearly happening.

The Supreme Court of reversed and remanded the Arkansas state Supreme Court ruling, finding that, “Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.” Gorsuch, Alito, and Thomas dissented, arguing that Obergefell isn’t settled law, and only applies to the issuance of marriage certificates, and death certificates. While Justice Roberts did not join the dissent, it is unknown if he supported the decision either (since individual justices do not have to sign onto a per curiam decision).

What this tells us is that we have at least 3, if not 4, Supreme Court Justices ready to roll back marriage equality by allowing states to reduce the legal rights of same sex partners to a relatively worthless piece of paper that does not have to be honored for any legal purpose except death certificates. This exact same argument was successfully also used on June 29th in the case of Pidgeon v. Turner.

In this case, a conservative pastor in Houston argued that since Texas state law still forbids recognition of same sex marriage (it was never repealed, only overturned), it was illegal to for city government to offer city employees in same sex marriages the same benefits as heterosexual employees. The Texas Supreme Court instead accepted, 9 to 0, the argument that since Obergefell didn’t say anything specifically about employee benefits.

This tells us that we can expect Obergefell to be continually challenged until eventually they get one or two more votes at SCOTUS, whereupon they will issue an opinion that states can interpret Obergefell narrowly. If Chief Justice Roberts balks at such a blatant attack on stare decisis, all conservatives have to do is wait for Breyer or Ginsburg to also step down or die before the end of the first four years Trump Administration. Given Justice Ginsburg is 84 years old, and Breyer is 78, the odds that at least one of them leaves the bench before the end of 2020 is high.

Even more dangerous than this attempt to tear down Obergefell in the same piecemeal way they are tearing down Roe v. Wade, is how they are opening up the aperture to use RFRA as a legal justification to ignore civil rights laws. In previous years, the Supreme Court did not have the votes to take up cases (grant writ of certiorari, or cert) involving vendors refusing to serve LGBTQ people in states where LGBTQ people are legislatively protected from such discrimination. These cases usually involved a first amendment claim that the government was forcing them to express themselves in a way that violated their religious beliefs. For example, in 2014 the Supreme Court declined to hear the case of Elane Photography v. Willock, in which a New Mexico photographer for hire refused to take pictures at a same-sex wedding.

That all changed after the death of Justice Scalia, and the addition of Justice Gorsuch. This is why SCOTUS now took up the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which is basically the same as Elane Photography, but with cakes.

Civil rights experts are relatively confident that a first amendment claim can be beat back with the current composition of the court. Justices Alito, Thomas, and Gorsuch all seem primed to carve out a giant religious exemption to civil rights laws. Chief Justice Roberts hasn’t been supportive of overturning civil rights laws in the past (Elane) on the basis of first amendment claims in the past. Justice Kennedy voted with the majority in Obergefell, Hobby Lobby, and Little Sisters of the Poor. Even if Kennedy decides against Masterpiece Cake shop, however, you can be sure that a Trump appointee to the Supreme Court will treat the outcome as narrowly as possible (e.g. “Masterpiece Cakeshop was about freedom of speech. This new case involves a RFRA claim. Totally different.”)

Gorsuch has a history of interpreting RFRA extremely broadly, to the point that in Gorsuch’s opinion even signing a piece of paper opting out of the ACA’s provisions on birth control was an unconstitutional burden on the free exercise of religion. While Chief Justice Roberts hasn’t been supportive of first amendment claims, he did vote with the majority in Hobby Lobby and Little Sisters of the Poor Home for the Aged v. Burwell. He also dissented in Obergefell, and has expressed the view in that case that the LGBTQ lobby is so powerful that they do not need government protections from discrimination.