Recently, a friend I met at the Women’s March in DC in January expressed her dismay on Facebook over the new régime’s rescinding of Obama administration protections for trans students. She pointed out among other things (as so many of us have, over and over) that there’s “no evidence that transgender students attack anyone in bathrooms.” I
The person in question had linked an article from the conservative news site, The Daily Wire, entitled “5 Times ‘Transgender’ Men Abused Women and Children in Bathrooms,” and observed that the claim “no evidence” evidently wasn’t, strictly speaking, true. Another person had responded to this post by pointing out that none of the five people identified in the article appeared to be trans, but rather were pretending to be in order to enter women’s facilities. I skimmed the article at that point, and it seemed to support the latter position, for it claimed to be presenting these cases as support for an objection conservatives frequently raise against what this writer called “the leftist push” for trans access to public facilities: that “some men will abuse the bathrooms and locker-rooms [sic] open to gender identity rather than biology [sic] by falsely proclaiming womanhood in order to gain access to women and children for motives of malice [sic].”
I then decided to chime in, for it struck me that where the issue of trans access to public facilities is concerned, these considerations were ultimately beside the point.
That’s not to say that I condone men, “biological” or otherwise, surreptitiously filming women in restrooms (as happened in three of the five cases cited), or of course assaulting us (as happened in a fourth case). Those are punishable offenses regardless of the who and where, and there have long been laws on the books to address them. But that raises the question, Why are those existing laws suddenly insufficient? All four perpetrators were arrested and charged under such laws (no charges were pressed in the fifth case because no laws were broken). The Daily Wire writer claims that if public facilities are “open to gender identity rather than biology,” they “could become easy-access breeding grounds for predators” in the future. Several states have permitted us to use gender appropriate public facilities for years now, however, and all she can muster against this “leftist push” are five incidents, only four of which involved any punishable wrongdoing – incidents, moreover, that happened over three years (2014-16) in two countries (two occurred in Canada). That hardly seems like a clear harbinger of an imminent epidemic of predatory behavior.
It’s not rocket science, in sum, to point out that these few shreds of evidence are, from any rational jurisprudential perspective, woefully inadequate to justify banning an entire class of people from safely performing basic bodily functions in public spaces. Arguments about the “privacy rights” (read: comfort) of the cis majority aside, trans folks are the only ones whose well-being is at stake in these bathroom bills.
An obvious question to ask at this point is why these bills continue to be introduced in state legislatures across the nation despite the clear evidence that they do nothing to promote public safety – and despite the significant economic and PR pushback they’re provoking? And a couple of obvious answers immediately come to mind:
I don’t want to contest either of those answers. What I would like to talk about is how we respond to this ongoing assault on our basic rights. Continuing to counter the far right’s gross misinformation is necessary – the predatory trans woman is a zombie fiction: wash, rinse, repeat – and when it’s done with some flair, it’s also oh-so satisfying. But to leave matters at that plays into the hands of the bathroom bills’ authors, for it fails to challenge, or at least to spotlight, a broader aim of these bills. They’re meant to divert attention from questions about civil rights (in essence, those freedoms we have by virtue of being human) by reframing them as questions about civil liberties (those freedoms we have because our nation’s Constitution and laws forbid the government from treading on them). The tactic the bills’ authors are employing to effect this diversion is demonize and divide: call our basic humanity into question by claiming that we’re predatory monsters in order to justify revising existing laws so that we can be quarantined from the rest of the populace.
As long as the question of our basic humanity remains the focus of this “debate,” we’re trapped in a post-truth loop of they say/we say, and our civil liberties will remain under assault. Thus it’s important that we strive to fix attention where it belongs, on our civil rights. It’s also important, though, that we recognize the broader implications of this battle. Demonize-and-divide isn’t just a little sleight of hand being used to obstruct trans rights advocates: it’s a tactic that’s being employed with increasing frequency and impunity by the new POTUS and his régime to raise questions about the humanity of a number of minority groups. The stakes involved in countering the tactic are higher than ever, then. As such, it’s worth taking a closer look at how it works.
The far right employs a variety of means to focus people’s attention on the question of trans folks’ humanity, not least among them of course flat-out smear campaigns. One of the most insidious means being used currently, though, is the appeal to “common sense.” The Daily Wire writer, for example, claims in her introduction that because public facilities “could” become infested with sexual predators, “it would be common sense to keep the facilities separated based on biology rather than identity to protect women and children.” As I point out in a piece I posted recently, the very innocuousness of the phrase “common sense” belies the far from innocuous intent of these arguments, which is to pass off naked bigotry as self-evident descriptions of the way things are, and to divert attention from the fact that the arguer has little to no firm evidence to support their position. That’s clearly the case here. The real basis for the claim that our access to gender appropriate facilities needs to be policed preemptively is a narrow (to put it charitably) reading of Genesis 1:26-7, “God created man in his own image…male and female,” according to which
being trans isn’t a real thing, thus
we must be mentally ill, and
because our genitals seem to be a central fixation of our “illness,” we must also be sexual deviants, and thus
Bulked up with some displaced racism (“If it has a penis, it’s a boy”), this (mis)reading of the Bible has coalesced into the position that I’ve called “genital fundamentalism.”
The “common sense” genital fundamentalist argument achieves the goals of demonize-and-divide in a couple of ways. In the first place, its bland plausibility shifts the burden of proof from the accuser to the accused – from the demonizers to the demonized. In other words, it puts the onus on us and our allies to prove that we deserve to be treated as fully human, and not on them to prove that we don’t. Second, once this reframing of the issue becomes the dominant one, old gut-level prejudices assume a more prominent role in the way the “debate” transpires. Whether trans folks deserve civil rights is a question that points us in the direction of a reasoned exchange about legal principles. Whether trans women are sexual predators, by contrast, pushes all kinds of emotional hot buttons, making it far more amenable to our demonization. There are a couple of important implications of this:
In exchanges centered on negative stereotypes and governed by strong emotions, any evidence takes on an exaggerated importance, since it seems to corroborate the old prejudices about us that many assume must exist for a reason. Thus we find ourselves drawn into arguments about stray instances of (alleged) misconduct by (alleged) trans women, feeling the need to assert yet again that we’re not monsters because anything less than 100% good behavior seems like it will be damning to us – a ridiculous standard for any group of human beings to have to meet. In the meantime, a gridlock of competing truths (they say/we say) is achieved, effectively stalling any discussion of expanding our rights.
Because our basic humanity is the focus of the “debate,” it becomes easier for the far right to extend the threat we represent to others, and make our rights contingent on not only our own real or imagined behavior, but also the real or imagined behavior of these others. Viz. their argument that we should be denied the right to pee and wash in peace because other people who aren’t even trans might exploit that right to do bad shit. In most any context you care to name, such an argument would seem patently absurd and grossly unfair – even cruel. But it doesn’t seem to strike a lot of people that way where we’re concerned, and I suspect that’s because even if they accept the fact that we’re not sexual deviants or sexual predators, they likely still believe that (or just wonder if) we’re mentally ill, and thus they’re less inclined to view our push for civil rights sympathetically. And so yet another barrier to our receiving those rights is created that we have to clear away.
The demonize-and-divide tactic as it’s employed in the legal (mis)treatment of trans folks is significant for the degree to which it upends core principles of the American legal tradition. Indeed, preemptively punishing us for crimes we (or others masquerading as us) might commit, and placing the burden on us to prove that we deserve our civil rights, contravenes the fundamental reason our legal tradition recognizes for having laws at all. The purpose of laws, according to that tradition, is to advance the common weal by restraining, and in extreme cases weeding out, bad actors – people who demonstrably do bad things, or attempt to do bad things, or plot to do bad things. Their purpose is not to punish people for who they are, let alone who others allege them to be. Our “inalienable” rights to “life, liberty, and the pursuit of happiness” are ours to lose as individuals, not ours to earn as a group.
An assault on civil liberties like this one is a serious matter when even one group is its target. As I noted above, though, demonize-and-divide is now a favored tactic of the far right for calling into question the humanity of a number of minority groups.
To give a single example, consider the new POTUS’s calls to deport millions of “illegals” from Mexico and elsewhere in Latin America, which agents from Immigration and Customs Enforcement (ICE) are currently putting into execution, and to erect a “big, beautiful wall” along the US-Mexico border to stem the flow of such folks into the country in the future. That the new régime is demonizing undocumented Latinos/as to justify these extreme measures is obvious enough. The main justification the new POTUS has repeatedly paraded out in support of them is the claim that there are a lot of “bad hombres” (rapists, drug dealers, gang members, etc.) in the country who need to be expelled from our midst and kept out. As has often been pointed out, however, the numbers don’t even remotely support the proposed scope of the deportations: there aren’t nearly that many “bad hombres” out there. If the new régime follows through on its promise, then, as it seems poised to do, many peaceful and productive residents within our borders will inevitably be expelled as well, punished for the deeds (real or imagined) of others.
As for the proposed border wall, it would of course serve as a physical manifestation of the new régime’s desire to divide “us” from “them.” It also embodies the darkest side of the demonize-and-divide tactic in the way it encourages “us” to believe that “we” should accept nothing less than a virtually 100% assurance that “we” will be safe from “them.” Such an expectation is not simply impracticable, it’s profoundly inhumane. Drafting any law, policy, or initiative entails balancing the risks the targeted behavior presents with basic ethics and compassion. Will a less sweeping deportation initiative that doesn’t, say, separate parents from their children leave some potential criminals in the country? Probably. Will permitting trans folks to use gender appropriate public facilities result in an unsavory incident here and there? It seems likely. But do these more or less remote possibilities justify draconian measures that deny masses of people their safety and dignity? Moreover, how extreme is extreme enough? The only way to guarantee that no member of a particular group will do anything bad is to do what the Nazis tried to do to the Jews: exterminate the lot of them.
As the legacy of Jim Crow and the ongoing struggles of women and ethnic, religious, and other minority groups clearly attest, the othering of broad swaths of the American populace has been a feature of our national life since our nation’s inception. Nonetheless, the increasingly prevalent use of the demonize-and-divide tactic in recent months is to say the least unsettling. It signals (1) that the new régime isn’t simply pushing back against the perceived excesses of the Obama administration’s “liberal agenda,” it’s looking to fundamentally redefine what being “American” means; and (2) that the new definition it’s promoting is one that privileges desirable demographics – making America white, (Evangelical) Christian, straight, cis – over adherence to the core principles of our Constitution and legal traditions. In order for this fundamental change to be achieved, the nation’s existing legal framework would need to be overhauled so that the civil liberties of undesirable groups and their means of seeking redress are severely curtailed or taken away altogether — through “religious freedom” and anti-trans bathroom laws, religious tests and “registers,” loosened controls on law enforcement, voter ID laws, gerrymandered legislative districts, ramped up border control, etc. Prominent white nationalist Richard Spencer has termed this process as it affects racial minorities “peaceful ethnic cleansing.” Demonizing members of the undesirable groups serves both to divert attention from the overhaul and to make it more palatable to those not directly victimized by it.
Given the new POTUS’s long history of racist statements and actions, and the staggeringly ugly racism informing White House “Chief Strategist” and former Breitbart mastermind Steve Bannon’s worldview, this development comes as no great surprise. Just how far the new régime will succeed in advancing its agenda, or wants to advance it, is an open question. With wide-scale unrest on the left and questions about ties to Russia threatening to cripple the new POTUS, it’s hard at this point to imagine internment camps, let alone death camps, appearing on our soil. But we should bear in mind moving forward that such measures are far from unimaginable to people like Bannon. And we should bear in mind the history lesson that Bannon and his alt-right minions are bearing out yet again: some ideas are too terrible to die.