Testing Ground

In the nationwide attack on trans rights, Missouri has become something of a testing ground. This spring, the state’s attorney general Andrew Bailey, purporting a desire to “protect children,” filed an “emergency” rule severely restricting access to gender-affirming medical care. Citing junk science and parroting the usual moral panic talking points, Bailey claimed that such care is “experimental” and, when conducted in the absence of “specific guardrails,” violates state law. Petitioners, including Lambda Legal and the ACLU of Missouri, quickly won a temporary restraining order; a hearing on the constitutionality of the rule was set for May and then postponed to July. But in the midst of this, Bailey reversed course and withdrew the rule, his intrepid defense of a child’s innocence rendered unnecessary after the Republican-controlled legislature passed a bill limiting access to gender-affirming care for minors, as well as for people who are incarcerated and people on Medicaid.

This seemingly needless duplication of effort is no accident; it’s part and parcel of the Republicans’ strategy to throw everything at the wall to see what will withstand judicial scrutiny. Since the start of the year, the ACLU reports that nearly five hundred anti-LGBTQ bills have been introduced in state legislatures—and this doesn’t include executive orders and emergency rules like Missouri’s. These bills are often quite similar, drawn as they are from draft legislation churned out by conservative groups like Alliance Defending Freedom. Regardless of whether any of these laws are enacted and endure legal challenges, Republicans can claim a victory of sorts: their mere introduction creates confusion, striking fear into both trans and cisgender people (particularly parents), while whipping up a base of reactionary conservatives. It becomes, as Eric Stanley calls it, an atmosphere of violence, in which state-sponsored and vigilante attacks are normalized.

Unlike in many states, there’s no limit on how many bills legislators in Missouri can introduce, which creates a particularly potent space for experimentation. It’s become a bit of a “messaging test ground,” according to Shira Berkowitz, the senior director of public policy and advocacy for PROMO, a Missouri-based LGBTQ+ nonprofit that focuses on policy, electoral politics, community education, and grassroots support. Republicans want to see what “kind of policy works,” she adds. The attorney general’s emergency rule is just the latest instance of Republicans testing the limits of constitutionality in their all-out war on trans people.

This onslaught of anti-trans rhetoric and legislation inflames general anti-trans sentiment. The transgender tipping point of 2014 (as Time magazine put it), which seemed to signal the success of inclusion through representation, has given way to a new playing field where trans activists have been forced into a defensive posture and the main representation of transness is in anti-trans policy. “Unless we’re doing the work of sorting through all this information, and combating all of the misinformation, it doesn’t matter whether these laws even pass, because people are fleeing the state already, and for good reason,” notes Wanda Watermelon (a pseudonym), a member of the anarchist grassroots mutual aid group Mid Missouri Trans Folks.

Across the country, the legal environment is shifting so quickly, the flurry of restraining orders and stays and reversals so dizzying, that it can be difficult both for nonprofits like PROMO, who play on the state’s terrain, and for grassroots groups like Mid Missouri Trans Folks, who operate within communities, to devise—let alone execute—a strategy for defending trans people. Despite the chaos, large trans/queer nonprofits have indeed made considerable inroads, working alongside other national organizations like ACLU to protect access to care. As this legislative season has made clear, trans people on the ground are the ones most primed to take on the role of defending their community.

Though there has been a glut of anti-trans bills in Texas, Florida, and other states, Bailey’s unilateral action in Missouri did represent something of an escalation. Not only did it target providers of gender-affirming care, it would have required providers to screen for “social contagion,” “social media addiction,” autism, and “mental health comorbidities” before providing care. In an early AP article on Bailey’s rule, Lindsey Tanner writes, “Doctors and advocates for the transgender community contend the planned rule contains misleading or incorrect information straight from the playbook of anti-trans activists.”

The idea of social contagion driving young people’s desire to transition is a theory that has gone under the fear-stoking name of Rapid Onset Gender Dysphoria; though discredited, it is regularly wielded by the right, as well as liberals, to invalidate trans existence. The language in Bailey’s rule claimed that “it is an unfair, deceptive, fraudulent, or otherwise unlawful practice for any person or health organization to provide a covered gender transition intervention to a patient (or refer a patient for such an intervention) if the person or health organization . . . Fails to ensure (at least annually) that the patient is not experiencing social contagion with respect to the patient’s gender identity.” A footnote cites a battery of studies, including the World Professional Association for Transgender Health (WPATH)’s controversial recommendation that “any coexisting social problems that could interfere with treatment to be addressed prior to initiating puberty suppression.” A 2017 report in The New Atlantis titled “Growing Pains” adds that “social contagion on gender dysphoric children and adolescents from those in positions of authority may affect gender identity choices.”

But what would it mean to screen annually to confirm a patient isn’t experiencing social contagion? How can that possibly be medically determined? Perhaps this could be explained by the further stipulation that a provider must ensure that a patient seeking gender-affirming care has, “for at least the six months prior to beginning any intervention,” not “suffered from social media addiction or compulsion.” Bailey’s rule claimed that studies suggest “social media offers opportunity for gender dysphoric youth to represent chosen gender identity while receiving validation, resulting in a ‘snowball effect’ producing a ‘social transition machinery.’” Indeed, “online content may encourage vulnerable individuals to believe nonspecific symptoms and vague feelings represent a transgender condition and inappropriately reject all information contrary to these beliefs.”

In fact, access to the internet has contributed to the possibility of transition for more and more people. We could call this social contagion, or we could just describe it as another aspect of the way internet access has broadened the availability of resources and information, especially for non-normative needs. The multiplicity of transness suggests people simply want to engineer their gender in a variety of ways through a variety of means, including surgeries and hormones. The phenomenon of more young people bucking against the violently ascribed norm is perceived as a threat—and becomes an easy talking point for a conservative movement lusting after a golden age when men were men (even if they were sleeping with other men in secret).

The undercurrent to all this rhetoric is, as Jules Gill-Peterson has repeatedly pointed out, the undesirability of the trans child, which conservatives perceive as a failed outcome of social reproduction. The moral panic—sustained as it is by reactionary policies, misleading scientific papers, and supposedly neutral journalism—circles around the idea that the desire for transition, whether expressed by young people or adults, is not only false but a threat to the social order, which I have argued elsewhere that we trans people should embrace. Also underpinning the fear of social contagion is the knowledge that gender is not an immutable biological fact; it can be changed, even multiple times.

But Bailey’s rule did not just stop at social contagion: it also required screening for autism, and included the stipulation that any other existing mental health comorbidities must be “treated and resolved” before a patient could receive any gender-affirming care. There have been studies that show correlation between gender deviance and autism, so this was a particularly targeted attack. As for mental health comorbidities, the rule would have created the impossibility of their resolution, as it has been proven that access to transition care plays a huge factor in the treatment of depression and anxiety for trans people.

The state has tried to cause rifts between movements for trans people and for disability justice before. In their response, Mid Missouri Trans Folks is centering disability justice; in their view, we can only survive these attacks through coalitional work, since the state regulates who has access to care, recognition, and existence. “Transness and disability have been intertwined for a very long time, and that they have been used by the state and the nation in order to divide rifts against each other with specific regards to legislation,” caine, a member of Mid Missouri Trans Folks, told me. “This is something that governments do in order to separate the truly powerful forces that could make changes to them, which is coalitional activism.”

This is a place to learn from the failures of the fight for abortion access, which became dominated by liberal feminists who isolated the issue as one of privacy and cut it off from a broader struggle for greater access to all forms of health care for every type of person. Coalitional, or actual intersectional, work ends up undoing the isolating work of neoliberal identity politics. Through it, we can target the underlying issue: the patriarchal, transmisogynistic state’s regulation of bodies. Wanda of Mid Missouri Trans Folks argues that people should not be “afraid to coalition build with people who are working inside of [institutional and non-profit] structures, while also prioritizing doing our work . . . [because] on some level, they are ensuring at least that we have, in our paradigm, this extra couple of months to operate as things were before this shit moves to the next step.”

While organizations like PROMO, Lambda Legal, and the ACLU do important defensive work trying to stop these assaults in the courts, grassroots groups like Mid Missouri Trans Folks and other more informal trans networks are doing the arguably more essential work of protecting and reproducing trans life on the ground, regardless of the state’s policies. As in the abortion struggle, people who want access to necessary care often must rely on each other to get what they need and to go where they need to go. Beyond the intense focus on battles in the courts and state legislatures, there is the less visible ongoing work of making transition happen, which is most often enabled by groups without names, informal networks through which trans people have always shared information and resources. In the immediate wake of Bailey’s rule, Planned Parenthood of the St. Louis Region and Southwest Missouri filed suit against Bailey, with the president avowing that they would “continue providing expert and evidence-based care while we fight in court.” But as a large national group, their vulnerability to liability claims often forces them into a defensive position, as has been the case with some providers of prescription abortions. One of Bailey’s explicit tactics with the emergency rule, as caine explains, was to make providers vulnerable through liability claims.

Grassroots and affinity groups are more flexible and can move quickly to meet the needs of people, though such efforts are vulnerable to criminalization. Mid Missouri Trans Folks not only hosts gatherings where people take their hormones together but also maps locations for access to needed care, provides transport and emotional support, and makes sure the people who want hormones get hormones regardless of legal restrictions. Their struggle consists in sustaining these wide informal networks in the face of state hostility. Meanwhile, PROMO works on making the needs of trans people visible to the state and to win “hearts and minds.” We need a multipronged approach, to be sure, but as we learned from the abortion struggle, whatever rights the state may grant are tenuous. The fact is that trans people will continue to exist whether anti-trans laws are passed or not, so the need to create and support DIY networks for the provision of care and self-defense is urgent.

Even on the right, some critics thought that the Missouri attorney general went too hard too fast. Writing in the Kansas City Star in June, Kacen Bayless argued that “some of Bailey’s aggressiveness has drawn criticism from fellow Republicans, who feel he’s overstepped his authority.” The fact that he is now pursuing the office through election indicates his anti-trans initiative was a ploy for attention. Bailey claims the legislative success made his rule obsolete—not that he weakened his stance against trans people.

Liberal “allies” may have perceived the withdrawal of the rule in Missouri as a win, even though the bill severely restricting youth access to gender-affirming care ultimately passed. But Mid Missouri Trans Folks doesn’t want to get comfortable in the seeming reprieve; trans people are still under attack. Whereas Bailey’s rule made transition inaccessible to adults as well as teens, the current law “only” bars youth, people on Medicaid, and people in prison from gender-affirming care. More sweeping anti-trans legislation and orders are inevitable; state-sponsored hostility and destabilizing chaos are to be expected for the foreseeable future.

But trans people know how to work under threat and in the gray areas, jumping the gates and manipulating existing systems to our own benefit. The major lesson that Mid Missouri Trans Folks offers is the need for coalition building; resources must be shared, whether it’s money, information, transportation, or hormones and other medication. Rather than simply winning the hearts and minds of the “regular people” to accept our existence, we must make common cause with people committed to other struggles. In making and defending trans life, we are already building an alternative world in the wreckage of the state.