Friedrich Hayek, one of the foundational theorists of the American right, warned us about the demonization of transgender people.
Gender identity raises a cluster of distinctive issues: locker rooms, bathrooms, health insurance, military service, prisons and homeless shelters. We oughtn’t mush them all together. But there is a nasty common thread. In today’s politics, even valid reasons for sometimes disregarding a gender-identity claim tend to morph into hateful efforts to eradicate transgender people altogether.
The two most politically salient issues are medical interventions for children and girls’ sports. They are distinct. Questions about what treatments are likely to produce the happiest and best functioning adults have little to do with fairness to athletes and encouraging all children to be physically active.
But contaminating both conversations, and many others as well, is a malign political tendency that is familiar in other contexts. A free society naturally engenders diversity, and this produces a distinctive set of opportunities for political evil.
Hayek, in his classic 1944 book “The Road to Serfdom,” observes that “it is easier for people to agree on a negative programme, on the hatred of an enemy…than on any positive task. The contrast between the ‘we’ and the ‘they,’ the common fight against those outside the group, seems to be an essential ingredient in any creed which will solidly knit together a group for common action.” For politicians, this “has the great advantage of leaving them greater freedom of action than almost any positive programme.”
Thus, “the enemy, whether he be internal like the ‘Jew’ or the ‘Kulak,’ or external, seems to be an indispensable requisite in the armoury of a totalitarian leader.”
In other words, it is hard to unify opinion in a democracy, but a strategy that sometimes works is to scapegoat a harmless and powerless minority, so that we all can unite in persecuting them.
Transgender people are the latest victims of this ugly strategy, whose most successful practitioner is Florida Gov. Ron DeSantis (R). It has helped him to become the leading non-Trump Republican presidential candidate, with a promising political future even if he doesn’t get the nomination this time. His self-proclaimed “war on wokeness” is in practice a war on vulnerable people. He talks a lot about protecting children, but the laws he has signed have also made it difficult or impossible for transgender adults to get treatment, or even continue the treatment they have been receiving for years.
The attack on transgender Floridians has focused particularly on schools and state colleges, where teachers may no longer use their preferred pronouns in class and must use the bathroom designated for their biological sex as assigned at birth. Transgender visitors, including parents and students from other schools, face criminal charges if they use the bathroom on school premises that fits their gender identity. Such rules place transgender people at greater risk of assault.
DeSantis’s campaign reposted a video which approvingly quoted a transgender activist accusing him of signing the “most extreme slate of anti-trans laws in modern history.” His deliberately vague Parental Rights in Education Act, derided as the “don’t say gay” law, targets transgender as well as gay people. DeSantis’s press secretary claimed that anyone who opposes it is “probably a groomer.” When a poll showed that a majority of gay and transgender parents were considering leaving Florida because of these policies, she retweeted the news with an emoji of a hand waving goodbye.
In short, thousands of people who have lived in Florida all their lives are being terrorized because Republicans needed an issue to mobilize around.
There are some reasonable arguments for declining to defer to all claims about gender identity. Women and girls don’t want to see penises in their locker rooms. Biologically male bodies can give transgender athletes an advantage in women’s sports.
Some issues are just hard and complicated. Yes, biologically male prisoners have committed rapes in women’s prisons, for example. But transgender inmates in men’s prisons are particularly at risk of sexual assault. And some women do not feel safe in homeless and battered women’s shelters where there are biological males in residence, but it must be acknowledged that transgender people need refuge as well.
These issues demand nuanced and sensitive judgment, but that judgment has to presume that the basic needs of transgender people matter. You cross a line when you boast that you have threatened people’s existence and driven them out of their homes and communities.
Sadly, nuance is in short supply, particularly with respect to the care of children. Twenty-two states have now enacted laws like Florida’s, completely banning transition-related medical care for minors. The best argument for legal restrictions is that some clinics have improperly rushed such treatments. On those grounds, many European countries have tightened eligibility requirements and demanded that they take place in a controlled research setting. But the absolute bans are recklessly crude, ignoring evidence that such treatments are urgently necessary and have been spectacularly successful for some children. The legislators who purport to be protecting them are oblivious to, and perhaps indifferent or even hostile to, those children.
Not every denial of a transgender claim is a threat to trans existence. But transgender people are not wrong to feel that their existence is in question in every such conversation. Those politicians who have advanced their careers by vilifying their innocent fellow citizens should be ashamed of themselves.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press). Follow him @AndrewKoppelman.
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