People want to know why the hell I’m so scared as a transgender person after the election of Donald Trump. Why the hell I’m updating my passport. Why my wife is renewing her Canadian passport, and getting citizenship papers lined up for our three kids. We’re consolidating 401ks, and establishing lists using historical analogies on what events trigger our departure (such purging transgender people from federal service under the excuse of “national security”), and how quickly those contingency plans would have to be implemented to get out of Dodge on a moment’s notice.
You probably think this is paranoia; but bear with me. By the end of this essay, you’ll realize that it isn’t just transgender people who should be frightened. It should be everyone who isn’t white, Christian, straight, cisgender, and male…because we, as a nation, are probably Fucked with a capital F.
In case you hadn’t noticed, we are now a nation with one political party controlling virtually everything: The White House, the US Senate, the Supreme Court (especially after Trump’s nominees are confirmed), the US House of Representatives, thirty-three of the fifty Governor’s Mansions, and sixty-seven of ninety-eight State Legislative Chambers.
The system is rigged, but not in the way Donald Trump claimed. Due to gerrymandering, most state legislatures and the US House of Representatives are completely unwinnable to Democrats. And in most of these states where Republicans control the legislature, the demise of the Voting Rights Act means that voter suppression laws will skew gubernatorial, Presidential, and Senatorial races further to the right. Post VRA suppression was in large part responsible the election of Trump and other right wing demagogues in 2016.
It won’t get better either. A Supreme Court full of little Scalias will not strike down gerrymandered districts, voter suppression, or any of the million legalistic or bean-counting ways Republicans can use to ensure that they never leave power. In 2018, 25 US Senate seats held by Democrats will be up for election. Only eight are held by Republicans. The House is out of reach for at least a decade and a half, if not more, due to gerrymandering and the census cycle.
In 2020 when the census is conducted and districts are drawn up for the 2022 mid-term election, two thirds of the states will still likely have Republican majorities across all three branches. As a result the gerrymandering situation is likely to get even worse.
It is no coincidence that Clinton underperformed the polls so badly in the first election since the Voting Rights Act was struck down. It’s also part of the Democratic death spiral we have entered. As demographic shrinks for Republicans, the more they will work to suppress the vote and rig districts. In turn, elected officials will look less and less like the people in their states, and represent their interests less and less. For elected Republicans, as a result of gerrymandering, there is also a perverse incentive to ignore people in your state who aren’t just like you: i.e., white, Christian, and straight.
Which is why I look at the protests and realize just how little they really mean: not only is there zero reason for these Republican legislators to give a damn; they would be actively punished by their constituents if they did.
If transgender people and leadership are expecting things to get better in the legislatures, or are preparing for “a better day,” they need to think again. By 2040 we’re looking at a brown majority nation that has been completely disenfranchised, impoverished, and demonized by an aging white aristocracy, while police forces have been given carte blanche to keep their Republican masters in power. There’s only one ending to a situation like this, and when those police forces decide it’s not worth protecting the autocracy anymore the end looks a whole hell of a lot like what happened to Nicolae Ceaușescu.
The cavalry ain’t coming until most everyone reading this is dead. And even then, it will likely be a dessert served over the ashes of our major metropolitan centers.
Let’s take a step back though, and ask what happens to transgender people like me between now and then.
Keep in mind that the Family Research Council (FRC), an anti-LGBT hate group which solidly backed Trump, has laid out a 5 point plan to remove transgender people from public life through legislation and policy. The gist of these points is that transgender people should not have any legal protections from discrimination, should not have access to transition related medical care, should not have their genders legally recognized on state or federal identification, and should not be allowed to serve in the military.
Trump’s transition team includes a former Vice-President (Kay Cole James) and a Senior Fellow (Ken Blackwell) at the FRC.
Going further, Trump’s supporters in the alt-right are actively encouraging people to abuse, harass, mock and otherwise torture transgender people until they feel they have no choice but to de-transition and go back into the closet. Under that back drop emerge the following likely legal outcomes:
We’re going to lose the Gavin Grimm case at the Supreme Court, along with Title VII, Title IX, and the intermediate scrutiny that goes with it for the purposes of determining whether the Equal Protection Clause of the 14th Amendment applies to us. If transgender people are not protected as a class on the basis of sex or sex stereotyping, then nothing else within the law sets us apart as a protected class, and we are reduced to rational basis scrutiny. Rational basis allows the government to put in place laws and policies which adversely affect a non-protected class of people, so long as a “legitimate government interest” is served.
Thus, reduced to rational basis scrutiny, and going up against a hostile SCOTUS, most of the blatantly discriminatory laws passed at the state level are likely to be found constitutional. For example, in Texas we are likely to see a law requiring transgender people to use bathrooms in accordance with their sex assigned at birth, regardless of whether they have had surgery, or if the bathroom is run by the government or a private business. They could classify using the “wrong” bathroom as a sex crime, and thereby threaten most of the transgender population with being put on the sex offender list. This would likely be legal under rational basis scrutiny and a conservative court.
The First Amendment Defense Act, which prohibits the federal government from punishing any federal employee or contractor who discriminates against LGBT people on the basis of a religious belief, is likely to end up further blunting a lot of the 14th Amendment Claims transgender people would make if the Federal government goes after us as well. Additionally, we’re likely going to see SCOTUS rule that the Religious Freedom Restoration Act (RFRA) in conjunction with the Hobby Lobby decision allows individual employers and their employees in private industry to discriminate against transgender people on the basis of “sincerely held religious beliefs.” Companies would be legally required to accommodate those beliefs, and the resulting discrimination and harassment, after such an extension of RFRA.
Once transgender people are reduced to rational basis scrutiny, and SCOTUS is packed with religious demagogues approved by the Heritage Foundation, state and federal government agencies can visit a parade of atrocities upon the transgender community with impunity. Purging the federal government of transgender employees and contractors is easy, by simply revoking their clearances using regulations already on the books. So is voiding all of their passports so they can’t escape. Transgender medical professionals and lawyers can easily have their credentials and certifications yanked for “moral turpitude” or by declaration that transgender people are “mentally ill” or “suffering from a psychosexual illness.”
Some people believe these are unlikely to happen. First, they cite institutional inertia at the Federal level. This is a vain hope. With Republicans in more or less permanent control at the state and Federal level, eventually they will push through this resistance. This is why the third rule of surviving autocracies is, “Your institutions will not save you.”
Over time, as it becomes clear that the government will not change, and as government positions are filled with sycophants and cronies, resistance to the oppression of transgender people will fade, then crumble. If you think for a moment that American industry will save us, ask yourself if Lockheed-Martin would REALLY stop doing business in the entire state of Texas over a few transgender people. Would the American public, of whom only 11% know a transgender person, rise up to save us in violent rebellion? Would the public even notice or care that transgender people are the victims of quiet cultural genocide?
The answer to each of these is “of course not.”
The only question left is whether or not those in a Trump administration would actively engage in such horrific set of genocidal policies. Most people simply cannot believe that Trump’s administration would go after transgender people to such a degree.
This is beyond foolish.
Remember that 5-point plan to rid American life of transgender people that I wrote about earlier? The head of Trump’s domestic policy transition team is a Senior Fellow at the organization that published it. Remember how the alt-right is encouraging people to exercise their RFRA-given freedom to mentally abuse transgender people until they’re either dead or in the closet again? The Chief White House Strategist (Steve Bannon) is a leading proponent of this “cure” for “transgenderism.”
Vice President Mike Pence leads the transition team, and has worked with anti-LGBT hate groups for decades while being one of the most overtly hateful homophobes in US politics. His likely nominee for HHS Secretary believes transgender people should be institutionalized and subjected to reparative therapy for their own good, and his likely nominee for Secretary of Labor has been a proponent of the legal opinion that transgender people cannot protect themselves from harassment and discrimination in the workplace.
If you think it couldn’t happen here, think again. A month ago I identified mapped out 19 specific Anti-Semitic legal and policy objectives accomplished between 1933 and 1939 in Germany. Sixteen out of the 19 could reasonably be accomplished against transgender people in the United States under rational basis scrutiny by an administration making use of policy and executive orders.
So let me state this plainly in conclusion:
Transgender people are losing nearly all of their already meager legal protections.
We are the smallest group on the chopping block.
We are the weakest and poorest.
We are the most despised.
We have no hope of holding back the tide long enough until “things get better”.
The cavalry is not coming.
Our Democratic legislators cannot save us.
The courts will not save us.
American businesses will not save us.
Journalists will not save us.
Academia will not save us.
Hollywood will not save us.
The American people will not save us.
If we are morally legislated out of existence, almost no one will notice, or care, except the bloodthirsty alt-right and religious right mobs cheering it on.
So long as I remain in the United States after January 20th, every moment will be one where I exist only because they haven’t gotten around to targeting us, whether via bathroom laws, purges of the federal government, outlawing affirming health care, or any other way they find to drive us into the ground.
The only thing that can save me, and my family, is to get as far away from this country as possible, before they close that possibility too.
“We cannot get out. The end comes soon. We hear drums, drums in the deep.
They are coming” – J.R.R. Tolkien
The SCOTUS Event Horizon for the LGBT Movement
Stop for a moment. Imagine how bad it will be…