How the Political Right Shifted its Focus from Homophobia to Transphobia

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Yes, it is the first day of the month of June, which among many other things means it is Pride Month in the LGBTQ community. This year it seems, think about it, Pride Month comes amid an intensifying cultural war offensive aimed at making people in general, but parents in particular afraid of their neighbors who are not straight in their sexual orientation or not traditionally cisgender, male or female in their gender identity.

In that context, we're going to talk on this June 1st about homophobia and transphobia. This fear phobia of people in gender or sexual minorities as if they could recruit your children to their ranks. As if who you're attracted to or what your gender identity is, is something you can choose like a major in college, as opposed to just who you are. Straight people, can you choose who you're sexually attracted to?

Men, women, can you make a decision to feel like the other sex? People like Florida Governor Ron DeSantis are passing laws like Florida's so-called Don't Say Gay law officially the parental rights and education law. As if parents can pick the sexual and gender orientation of their children for them, or as if it's a matter of choice in the first place. Here's DeSantis on March 4th.

Governor Ron DeSantis: It's basically saying for our youngest students, four-year-olds, five-year-olds, six years and seven, do you really want them to be getting taught about such and this is any sexual stuff, but I think clearly right now we see a lot of focus on the transgenderism. Telling kids that they may be able to pick genders and all that.

Brian Lehrer: That they may be able to pick genders and all of that. One way to look at this is that he's purposely turning reality on its head, because the point is really that you cannot pick your gender or sexual identity, isn't it? The point is how society treats those who discover, not choose, that they are in sex or gender minority groups, isn't it? Maybe it's because of political leaders like that, that people use the words homophobia and transphobia, and don't just call it hate.

They're appealing to parents' fear of who their children might turn out to be that for some reason the parents wouldn't like or would make them uncomfortable. Let's talk about homophobia and transphobia over time and its modern expression in 2022 on this, June 1st beginning of Pride Month with a longtime expert in the field. William Eskridge is a law professor at Yale. Back in the '90s, he represented a gay couple seeking legal recognition of their marriage.

That was like 20 years before the Supreme Court granted recognition that it is there, implied in the constitution. His seminal book from the '90s called Gaylaw: Challenging the Apartheid of the Closet helped form the legal basis for the Lawrence v. Texas decision in 2003 from the Supreme Court that struck down Texas's anti-sodomy laws for consenting adults, which were really anti-gay sex laws. He's written other books as well, including his most recent in 2020 called Marriage Equality: From Outlaws to In-Laws. [laughs] Maybe they didn't realize that in-laws came with the package. Will, always great to have you on the show. Welcome back to WNYC.

William Eskridge: Brian, it's always an honor.

Brian Lehrer: Can I jump you right in on the DeSantis quote and the creation of fear of difference as a political tool, maybe as a vehicle for you to reflect on the words, homophobia and transphobia themself?

William Eskridge: Yes, I'd appreciate that. Let's focus on homophobia. It seems to me there are three different things that could be packaged in the idea of homophobia. I think what DeSantis is most directly adverting to is the regime of the closet. The book that I wrote in the '90s. Even if DeSantis and his hill don't literally believe that people choose their sexual orientation or their gender identity. They do think that there can be some degree of choice to remain in the closet, not to come out of the closet.

A lot of what's going on with homophobia and transphobia is an effort to push our key people, typically young people in the closet, and to be conformist. There's another way that you can use the term, however, which is an even darker way, and that is homophobia and transphobia also appeal to people and encourage people's sense of disgust. People who believe that they're just two sexes and genders.

People who believe that the only God's sanctioned or moral way to have sexual relations is penile-vaginal procreative sex are often disgusted by people who are gay, transgender, or whatnot. DeSantis is indirectly appealing I think to that sense of disgust. Then there's a final thing that he's appealing to that is also political, Brian. Adverting and that is anxiety that parents are pervasively for good reason, anxious about being parents in the new millennium, and there are a lot of anxieties parents should have, keep their children off of drugs, keep the children from hurting one another, bullying one another, being bullied.

DeSantis is piling on to that idea that parents fear they're losing control of their children, particularly as they hit adolescence in the internet age. DeSantis is saying the state is going to help you keep control of your children. We're going to back you up and we're going to shut down these forms of implicit rebellion. DeSantis is also appealing to that. We saw that Governor Youngkin, elected governor in Virginia, directly appeal to parental anxiety about schools in his winning campaign.

Brian Lehrer: More about race, right? Critical race theory as they call it or whatever?

William Eskridge: Yes, I think it's all connected. Yes, critical race theory, but also he's appealing to mommy, there are two mommies, kids reading those kinds of books very often in Virginia schools. Parents understand this coded message as one, whether they're racist or homophobic or sexist, or whatnot. Parents understand that, and a lot of them voted for Youngkin who probably would not have.

Brian Lehrer: Maybe you just answered the question I'm about to ask, and framing it in terms of appealing to disgust I think is very powerful as you did. I've sometimes wondered why do we say homophobia and transphobia leaning into the idea of fear phobia? When with other groups we more tend to use ism, racism, sexism, anti-semitism, which signals hate and maybe disgust rather than fear. Is this anything you thought about?

William Eskridge: I have. I filed the brief and the recent [unintelligible 00:07:52] case where the Supreme court said that Title VII is barred to the discrimination because of sex also applies to gay and transgender employees. I literally have always thought since the '90s that homophobia is a version of sexism. Certainly gender identity, transphobia, is certainly a form of sexism.

The idea that there are two binary sexes, and that you've got to stick with the one you've got, and that there are gender traits that go with the sex. This is a package. It's cognitive, but it's also emotional and the emotions can range from anxiety to brutal hatred. That's the thing is that for different people there could be different mixes of these things. For some it's political, for someone it's cognitive, for some it's deeply emotional and the emotions can be violent. Hence you've seen arrised in the last 10 years in violence against transgender persons, as well as against racial minorities, like Chinese Americans.

Brian Lehrer: Listeners, especially LGBTQ listeners for this segment. Do you want to weigh in for Pride Month on the words homophobia and transphobia and the realities behind them? 212-433-WNYC. For people who would otherize you or judge you as less than, or are disgusted by you, to use Will Eskridge's term, for your differences from the majority. How do you see the mix of fear or hate or anything else that goes into that? Do you use the words homophobia and transphobia, or what would you like to say about them, or how fear is expressed or used by anybody for what reasons?

212-433-WNYC. 212-433-9692. With Yale law professor William Eskridge, author of Gaylaw: Challenging the Apartheid of the Closet Marriage Equality: From Outlaws to In-Laws and other books. 212-433-WNYC or tweet @BrianLehrer. Will, from a legal standpoint, does countering the fear make the basis for an argument in any context in court, or is it irrelevant in court, whether discrimination comes from hate or fear or disgust or greed or whatever?

William Eskridge: The Supreme Court has held that it does make a difference in an old case Roma v. Evans which in 1996 the Supreme Court by six to three vote struck down a Colorado initiative that cordoned off gay and lesbian people and treated them as basically outsiders. The campaign for that was a pretty vicious campaign trading on pretty vicious anti-gay and lesbian stereotypes and lies. The Supreme Court has been known to look and scan its statutes.

Even more recently President Clinton's Defensive Marriage Act was struck down in 2013 by the Supreme Court. In part because it was fueled by open anti-homosexual stereotypes, lies, and even hatred. It could make a difference. To the extent that a federal judge believes that say, the Don't Say Gay law that DeSantis has sponsored is motivated at least in part by othering I like your term, Brian. By prejudice, by vicious stereotypes that does become a background factor making a federal judge more likely to strike down that law.

Now the US Supreme Court is pretty conservative right now and I certainly think there would be some votes to the US Supreme Court to strike it down. It would hinge on Chief Justice Roberts and Justice Kavanaugh who are again mighty conservative and pretty reluctant to exercise judicial review to strike down these kinds of laws.

Brian Lehrer: Conservative in that case as a mark of using restraint rather than being right-wing. How much do you think I was barking up a right tree or a wrong tree and maybe it was a wrong tree in the intro that the DeSantis clip as an example of homophobia and transphobia is a fake appeal to a fear of something that's not even real. That people can choose their sexual orientation or their gender identity. I was thinking just for full transparency here, just for myself when I was young and single I used to think it would be ideal to be bi-sexual.

In theory, I could have a relationship with anybody who I really connected with but I couldn't wheel myself to be attracted to men. I was just straight. I had no choice. It was not a matter of choice as DeSantis frames it. For sexuality or for gender or do you think choice is real to any degree and should be part of the human rights equation here?

William Eskridge: You've got a law professor, Brian. I'll give you on the one hand on the other hand. On the one hand, I agree with you. It's nutty and probably vicious to say that this is all a choice like going to Walmart and selecting a pair of jeans. People do not select their sex or their gender identity or their sexual orientation. It's given to them by God or biology or their experience. My book on the Apartheid Of The Closet the central argument was that it's needlessly cruel to LGBTQ people to viciously persecute them for harmless traits that they don't control.

It's also bad for straight people. How many millions of straight people have entered into marriages with closeted gay people or lesbian people and their marriages have been terrible? It's bad for society. I agree with you on that. Here's what I think DeSantis if he's intelligent which I don't know actually also might be signaling. That is that Susie cannot choose to be a lesbian but 16-year-old Susie can choose whether or not she's an open lesbian. In other words, coming out to her friends actually dating other girls. Coming out to her parents and her other relatives.

Brian Lehrer: Again, it's about the closet?

William Eskridge: Yes sir, absolutely. Here's the other thing about DeSantis, it's really vicious and it's a lie. This is a lie often told about transgender people and I want to give you another Republican governor to counter this. It's the lie that transgender people are predatory. Used to be a lie about gay people. In Utah, there was an anti-trans law that the Utah legislature passed. Governor Herbert, who's a very conservative Republican, taunted and he said, "Where is the harm? Is there any evidence that transgender people using the restroom that fits their gender orientation ever cause any harm to anybody else?"

He says we have one or two cases in dozens of years. Where's the harm? If there's no harm that we're addressing, we shouldn't be passing a statute. The worst-case scenario is the statute reflects stereotypes or even prejudice. He says this is contrary to my faith. He's a latter-day saint. It does contravene their faith.

I think he's a good antidote. There are a lot of good antidotes to Governor DeSantis. This governor outside of Washington, Maryland Governor Hogan is a good antidote. Then, Governor Baker in Massachusetts, these are all Republicans that don't have time for the nonsense that DeSantis is peddling

Brian Lehrer: Before we take some calls, it's true I think that being trans or anywhere on the non-binary spectrum is more at the center of policy arguments and societal arguments than at any time in the past. Give me a reality check on this. In your classic, older books from the '90s like Gaylaw which was called Gaylaw not LGBTQ law, were people with trans or gender identity aspects even a part of it at that point?

William Eskridge: Oh, absolutely. I was involved with Senator Kennedy back in 1996 in the campaign for the employment non-discrimination Act which would've amended Title VII to add sexual orientation as a prohibited category. This is back in the '90s and these laws had been proposed for several years. I wasn't influential but I was an advisor to Lieberman Kennedy, in some extent, Senator Jeffords of Vermont. I was in favor not that it mattered back in the mid-'90s, why not add gender identity as well as sexual orientation? The Liberal Democrats might have been open to it. Jeffords was in favor of it, the Republicans but they felt that it would be toxic and would kill the bill and frankly, the Human Rights Council, HRC.

Brian Lehrer: The Human Rights Campaign, the LGBTQ activist group.

William Eskridge: They decisively opposed it. That was going nowhere and it is interesting. The main Senator I spoke to who favored it was a Republican Jeffords of Vermont.

Brian Lehrer: Did they because they thought the level of disgust to go back to that word with trans people show outstripped the level of disgust with gay and lesbian people that it would kill a bill for that reason?

William Eskridge: Yes, that was their thinking. My thinking was we should publicize. I did a case book at the very same time with Nan Hunter of Georgetown called Sexuality Gender And The Law. Nan's argument in the '90s was you cannot talk about issues of sexuality without talking about issues of gender and vice versa. It's all connected. I was being an intellectual and so on and so forth but also I knew transgender persons. I knew from Barney Frank's office that some of the most vicious violence against sexual and gender minorities was against transgender persons. No, for me it was a major major issue back in the 1990s.

Brian Lehrer: You were ahead of your time. How do you see the arc then of why society is grappling with it more openly today with our identifying our pronouns and any other aspects you want to center?

William Eskridge: Because there are an unprecedented number of transgender persons, non-binary persons, intersex persons who have come out of the closet. Brian, back in the '90s I knew adults. I didn't even imagine anybody in their teens coming out as transgender or non-binary but now today it's pretty common. That has revolutionized a discourse. Many young people, people in their teens and 20s are rebelling against the idea of either compulsory heterosexuality or what you would call compulsory sex binarism. That everybody's got to be one sex or another and that's what you're going to be through life. Young people are not buying it.

Brian Lehrer: Let's take some phone calls with Yale Law Professor William Eskridge. Justine in Astoria you're on WNYC. Hi Justine, thanks for calling today.

Justine: Thank you for taking my call. I think one reason, I'm a trans woman and I think one of the problems with our discussion is that of language itself, which I think your guest is touching on. Because the people who are doing these terrible things to us passing these bad laws or doing whatever else they're not using terms like transphobes and homophobes.

If you were to use those terms to most of them you'd probably get a blank stare.

They say, "I'm not that, I'm not one of those, or I don't do that." I can't think of a time when someone on our side and someone like Ron DeSantis actually have had a conversation about this in which we heard each other. We could just as well have been speaking completely different languages.

Brian Lehrer: It's true the bigots or the homophobes, transphobes if you want to use that word, don't use that term. I think when we say phobia, homophobia, transphobia it's a frame for understanding people's rejection, judgment, disgust. Do you think there could be a common language, Justine?

Justine: I think there could be because humans have the capacity to invent ways to express anything that they want to or need to express. It's always been done before. I don't know what that language is yet, maybe one day I'll come up with it, or maybe John McWhorter or somebody like that can come up with something. Where is John McWhorter when you need him?

Brian Lehrer: Funny enough, I'll just tell you John was supposed to be on the show last week for a segment on linguistics and we had to cancel it because the Uvalde shooting happened. Soon enough we're going to reschedule John McWhorter. Now you've given me something else to bring up with him when he's back on the show.

Justine, thank you we really appreciate it.
Do you have any reflection on that call,Will? I imagine in your position, you've had many conversations with people across political lines, across religious lines, or culture war lines on these things. Can people talk to each other successfully?

William Eskridge: Yes, I like Justin's idea. One thing is I think recognizing it as anxiety and starting with that can be a more productive way to have a conversation. I'll give you an example, Utah a very conservative state in 2015 legislators it's overwhelmingly Republican there are almost no Democrats in the legislature. The Republican legislators actually sat down with LGBTQ persons as well as representatives of the movement.

Worked through to a statute that Utah red state amended its anti-discrimination law to add sexual orientation and gender identity for jobs and housing and a few religious allowances as well. The LGBTQ groups got on board, businesses got on board, the Republican party got on board and the Church of Jesus Christ of Latter-day Saints enthusiastically got on board and indeed encouraged all these efforts.

Honestly, I know these people, the legislators, and the LGBTQ representatives and the key moments occurred when they just sat down in a neutral area of a Mormon family that was also pro-gay and said, "Let's just go around the room and talk about ourselves. Where are we coming from?" The other thing that moved many of these older, more conservative legislators was talking to their children and the friends of their children.

They were shocked to hear that transgender kids were kicked out of their homes. How could a parent do that? Look, legislators, this is the reality of modern life. You need to understand that and you need to approach that with empath as well as cognitive understanding. Honestly, I think that's the only way forward.

Brian Lehrer: Edmond in Westchester you're on WNYC. Hi, Edmond. Thanks for calling.

Edmond: Hi. You can hear me okay?

Brian Lehrer: I can hear just fine.

Edmond: Perfect. I think the previous caller and about language is really in many ways at the heart of this issue. I don't want to necessarily say anything more explicit, but I said it with the screener. I have direct experience with this. I'm a father and one of my-- I want to use the word frustrations with what's been presented to me is the need to use, we say, they, them is not taking away labels.

In fact, the other way to look at it's actually increasing the labels, increasing the constraints that we have by which we describe each other. Especially in describing something that is fluid, it changes over time. You acknowledge and I'm in the same place as you were like when I was in college, sometimes I was like women they're a pain in the butt. I just want to get--

Brian Lehrer: That's not what I said.

Edmond: To be gay for a while.

Brian Lehrer: I just said nobody misunderstands. I said, I just thought it would be ideal to be bi so you could theoretically connect with anybody. For people who didn't get the earlier part-- go ahead.

Edmond: I didn't mean to confuse your statement.

Brian Lehrer: That's okay, just characterize go ahead.

Edmond: The idea was that its fluid and that we're forcing now, just not much more constraints. I do feel as much as I'm going to be hyper supportive it also feels more constraining, not more freeing.

Brian Lehrer: That somebody has to declare.

Edmond: Be more who you are.

Brian Lehrer: He, she, or they. That somebody has to declare he, she or they.

Edmond: That's right. This act of declaration is creating tension, creating frustration. Honestly, I don't know there needs to be and we can acknowledge the individualism. It shows that I don't have the answer, I'm just saying that I do feel-

Brian Lehrer: I understand.

Edmond: -the frustration and I do feel like there's a lot of irony in what's going on.

Brian Lehrer: For the person or people in your life who you are referring to who, are non-binary in any way, if I can use that term. Do you feel like it is limiting them in some functional way to have to say he, she, or they?

Edmond: In a weird way, I do. I feel as though it might close the door to them being open to other parts of themselves and that this might become I need to prove this and because I want to be taken seriously in how I'm feeling and whatnot. It becomes its own trap.

Brian Lehrer: Edmond, thank you very much for your observation and sharing your experience. Will, any thoughts about that? Maybe this is more a question for John McWhorter but whenever it would make enough sense to the listeners, I've tried to replace the he and she pronouns with they, even before they became a thing to identify yourself as non-binary to just degenderize the language when talking about individuals.

Because if you're talking about it's like we say, city councilperson instead of city councilman or city councilwoman, because their gender is not really relevant to the job identification that you're giving and people can be disadvantaged by it in one way or another. I used to think, I'll just call everybody they and then they broke out as a thing, the word they to specifically identify yourself as non-binary. To Edmond's question that it might actually be limiting to somebody to have to choose even that, which the word they does suggest that you can be in different points at different times but have you given that any thought what Edmond was concerned about?

William Eskridge: Well, two things. One is I think Brian you were ahead of your time. Good for you, but for the last 50 years, 60 years maybe the etiquette of conversation has been evolving to take account of women's preference that they not be referred to as Mrs. or Miss, many women anyway. The chair of a committee is tending to replace chairman of the committee and so on and so forth. Etiquette is evolutive and it's social as well as individual. I think that's one of the things that Edmond is grappling with.

For example one of my old friends in law school we called him, Bobby. That was what he liked to be called. He is now a professor and he'd first be called Robert. Okay, things change. Is it good manners to continue to call him Bobby? The answer is no it's not. If you know he prefers Robert you should call him Robert. The other thing I think that's going with Edmond which I think is very understandable is that any relationship between a parent and a child is going to be similarly evolutive.

The child, as the child changes and becomes more independent of the parent is going to want to assert themselves [laughs] and in ways that the parent is going to have to adapt to. Now that doesn't mean entirely abandoning the parental role, but as the child becomes more of a quasi-adult, then you have to start treating this progeny as a human being who's an equal and whose preferences are entitled to a fair amount of respect, including in terms of nouns and verbs.

Even as they're changing because one feature of teenagers as I'm sure you know is that they do change. They're changing pretty rapidly. I think Edmond's concern is you don't want to box them in, and I think that's good parenting. Good parenting is not easy, it's pretty complex and it's prone to failure.

Brian Lehrer: It even brings us back to Ron DeSantis I think, because the Florida Law to rightfully called Don't Say Gay is officially called the parental rights in education law. Do you think that title is meant to suggest to parents that they can determine the sexual identities of the children? It's not the children's rights in education, or the individual rights in education law it's parental rights.

William Eskridge: Yes, but it's also the Glenn Youngkin can move, and that is it's signaling that the DeSantis Republicans we stand for parents controlling things and the Democrats stand for the bureaucratic bullying state which is trying to groom young people to be homosexuals and lesbians. Honestly, I think he's mobilizing all of that.

Brian Lehrer: Last thing and then we have a New York City Health and Mental Hygiene Commissioner Dr. Ashwin Vasan standing by for what I think is going to be an important conversation today. Will, have you seen over the decades to your eye an ebbing and flowing of fear of the phobia, and homophobia, transphobia? Maybe it's not something you can measure as a scholar or a lawyer as you were those things, but let's say at the time of Stonewall in 1969 the idea that gay and lesbian, and trans people that have equal rights of various kinds under the law was still fairly marginal.

Maybe AIDS in the '80s increased the fear and judgment, but also increased the activism for equal rights. Then we went through the don't ask don't tell maybe transitional era in the '90s, and on toward eventually same-sex marriage at least that becoming pretty accepted in public opinion polls. Now it seems other rising the phobia is back for all the reasons that we discussed before. Do you see ebb and flow over the course of the decades that you've been in the field?

William Eskridge: Yes, Brian. I think there's been a lot of evolution. The primary evolution has been. In the '60s and '70s, homophobia manifested itself in an almost hysterical fear of predation. The trope was the homosexual was a child molester, the vampire lesbian, not trying to recruit your children but to rape your children. That kind of--

Brian Lehrer: That's QAnon on today, right?

William Eskridge: Yes and that's fairly marginal today. Now gays and lesbians are looked at not so much as child molesters or predators but as in-laws who can be very irritating and as school teachers and so on and so forth. I think that's been one big change. I think a second big change and this was the Eskridge and Hunter book on Sexuality Gender and The Law, and that is I think the focus has shifted away from sexuality to gender. When I first, in the '70s and '60s there was virtually hysteria that people would have sexual intercourse that was not penile-vaginal procreative intercourse.

Well, people are not shocked by oral sex anymore. Vide Clinton and the White House. Whatever disparagement there is for LGBTQ people, I think has shifted from sexuality obsession and procreative sexuality obsession to gender role enforcement and I think that's a big change. Then finally I do believe that anxiety or prejudice against LGBTQ people is hydraulic. In other words, when you tamp it down on the marriage front, it re-emerges on other fronts.

Now LGBTQ people can marry the person of their choice, but the children they raise are not necessarily going to be able to read Heather Has Two Mommies in school, or say, "I'm straight and I'm attracted to boys but I love the fact that my moms are lesbians." They're sent home, they use the L-word. If it's actually enforced it would be almost a parody of Saturday Night Live.

Brian Lehrer: Hydraulic. Remember the word hydraulic from the end of this conversation. William Eskridge, law professor author of books including his most recent in 2020 called Marriage Equality: From Outlaws to In-Laws. Thank you so much. I really enjoyed this.

William Eskridge: Brian, I love talking to you.

 

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