Some states are seeking to ban school discussion and books that feature LGBTQ issues. Texas is targeting doctors and parents who provide gender-affirming medical care to transgender teenagers. Florida has gone to war against Disney World, after Disney publicly opposed the state’s so-called “Don’t Say Gay” law.
All are flashpoints in a historic political and legal campaign targeting LGBTQ+ communities, UC Berkeley scholars say, with hundreds of measures nationwide seeking to limit these groups’ rights and even their visibility after a decade of advances. The proposed laws would extend into schools and medical offices, bathrooms, locker rooms and libraries, even into the relationships between parents and their children.
And though California has been largely immune to the current backlash, they said, the harmful impact is felt acutely here.
“The increasing visibility of LGBTQ people “is such a fraught concept,” said Em Huang, director of LGBTQ+ Advancement and Equity in the UC Berkeley Gender Equity Center. “Visibility tends to protect the community in some ways, but there’s very, very rarely visibility without backlash or violence…. It doesn’t guarantee safety.”
The resistance to LGBTQ+ rights is hardly new, Huang and others said. Only 14 years ago, California voters approved Proposition 8 to ban same-sex marriage.
But time has brought a measure of progress. Prop. 8 was reversed in court, and a few years later the U.S. Supreme Court affirmed the right of gay and lesbian people to marry. In a poll last year, a record 70% of Americans, including 55% of Republicans, supported same-sex marriage.
After such progress, how to explain the current climate?
In a series of interviews, Berkeley experts described the backlash as uniquely powerful, driven by election year politics, but finding inspiration in international right-wing leaders, like Vladimir Putin in Russia and Viktor Orbán in Hungary, and rooted in conservative religious beliefs and primal human bias.
(Highlights of the interviews are presented below in a Q&A format, with excerpted comments lightly edited for clarity.)
Berkeley News: Every day, it seems, we’re hearing new reports about laws to limit LGBTQ+ rights or about individual attacks on LGBTQ+ people. What exactly are we seeing here?
Russell Robinson, professor of law and faculty director of the Center on Race, Sexuality & Culture: I think that the Republican Party finds it really frightening that 55% of Republicans support same-sex marriage. That, you know, children in Republican homes are coming out as trans, as nonbinary, as gay or bisexual or lesbian. And so, I think the right wing feels under threat from cultural change. And what we’re seeing is a reaction to that fear.
There’s this nostalgia for the “good old days,” when LGBTQ folks were closeted and Black people stayed in their place and women were in the household and not in the workplace. That is really at the core of Trump’s campaign and the Republican Party agenda.
Sonia Katyal, chair of the campus-wide Haas LGBTQ Citizenship faculty cluster and associate dean for faculty development and research at Berkeley Law: In the public, there’s not a tremendous degree of understanding of what it means to be trans, what it means to be non-binary. And I think that that’s changing, because more and more youth are figuring out who they are and demanding rights and protections based on their identity.
That’s an incredibly exciting thing. But every time you have individuals who demand recognition or demand their rights, you’re always going to have people who may not necessarily understand yet or people who are uncomfortable with this.
Em Huang, director of LGBTQ+ advancement and equity in the Gender Equity Resource Center: If anything, there was very little explicit anti-trans legislation for quite a while. Most of that has only come up more recently. And that’s because of how trans people have been invisiblized — or maybe controlled is a good word.
Legislation comes in when people think: “Wait, this norm is changing, and I don’t want it to change in this particular way.” For your whole life, you might believe, “Oh, trans people don’t exist like that. This is just a far-off concept that has no bearing on my life or existence. I don’t need to think about that. I don’t need to deal with any of the discomfort that I have around that.”
If it didn’t cause them discomfort, then why would they be pushing back?
Given the support for same-sex marriage and increasing public acceptance and legal support for LGBTQ rights, why is this backlash happening now?
Jennifer Chatman, professor of management and associate dean for academic affairs at Berkeley Haas: The basic notion of backlash is that it occurs when the powerful perceive that a less powerful or previously underrepresented group — women, racial minorities, LGBTQ people — is gaining power.
In my mind, this is what the Tea Party, the Trump movement and so-called populism or nationalism are all about: the powerful— in this country, that would be men who are white and straight — clinging to power and literally lashing out at those who threaten their grip on power.
So, the answer to the question — why now? — is that LGBTQ people have made visible strides of late.
Huang: None of this is new, right?
The “Don’t Say Gay” bill in Florida, for example, or the things that are going on in Texas — it’s not like all of a sudden this year or last year all these conservative folks decide, “Oh, trans and queer people are terrible, and we must protect x, y, and z things.”
Those feelings or those viewpoints have existed for a long time, and they continue to exist.
Katyal: For many years, Republicans, although not exclusively Republicans, have learned LGBT issues operate as a wedge issue.
But it also brings out constituencies of individuals who are usually religiously affiliated, who are very uncomfortable with LGBTQ rights — it brings them out to the polls on Election Day.
That’s what happened when we think about the passage of Proposition 8 (a 2008 California ballot measure that banned same-sex marriage). … It happened in the ‘80s regarding the AIDS crisis.
And yet, these appeals to suspicion and fear — isn’t there a degree of outright discrimination involved?
Katyal: If you can identify a particular constituency and frame them as somehow impinging on your rights, then you can get people out to the polls to vote against them. There’s nothing more un-American than that, frankly.
The U.S. Supreme Court has had the opportunity to rule on provisions that have targeted the LGBT population, and the court has overturned them because they’re motivated by animus, they’re motivated by hatred.
I can’t imagine the same thing isn’t happening here. It’s so well documented that every single one of these initiatives is motivated out of hatred for a particular group.
Gabriel Lenz, professor of political science: One interpretation of critical race theory being used so much in Republican political attacks is that it’s a way of getting fears about race, and about Black people, into campaigns without seeming racist. There’s a constant search for a way of doing this.
The same might apply to LGBTQ issues. You can speak to a deep-seated bias without speaking the language of bias.
The other fear that this taps into — people fear contamination by things they perceive as weird and foreign. For some people, LGBTQ issues tap into these contamination fears.
To what extent is there a parallel, or a connection, between attacks on critical race theory and LGBTQ rights?
Desmond Jagmohan, assistant professor of political science: In both cases, there’s an effort to frame the teaching of progressive social movements, whether it’s the Black freedom struggle or the LGBTQ struggle, as lessons that somehow undermine American civic ideals, the story of America that sustains the national fabric.
Critical race theory is framed as indoctrinating white students into a sense of being ashamed of being white. I suspect that they worry less about making Americans feel ashamed of being heterosexual or heteronormative, as much as they want to suggest that it somehow encourages forms of sexual identity that some on the right consider morally deviant.
Robinson: In 2016, Trump was fairly mild in his attacks on LGBTQ folks, compared to his attacks on Mexicans and Muslims and women. By 2021, LGBTQ rights were becoming more central in the right-wing attack.
It started with the executive order that Trump issued on critical race theory before the 2020 election. And then more recently, it seems like some of those same forces have glommed on to trans rights and gay rights.
It sounds like some of the activists in the Republican Party see organizing a moral panic around the “grooming” of children and making them “vulnerable” to LGBTQ identification and behavior as the next battlefield that they think will lift their vote.
Why would this appeal to right-wing Republicans as a way to drive voter turnout?
Lenz: Voters feel they have better things to do with their lives than pay attention to politics, and they sense their votes will never make a difference in elections. So, it’s hard to motivate people to show up to vote.
Especially in a very competitive, polarized system, you often see political organizers looking for some sort of fear-based motivation.
Jagmohan: This might be one of the safest areas in which these politicians can take a stance. Were they to take a stance on things like workers’ rights, or things that working-class whites really care about, they might be at odds with their party and their financial backers.
It might be that LGBTQ people, in their eyes — there’s no real cost to targeting them. And it’s really alarming that they’re willing to do that to a group.
Robinson: You have to remember the racial uprising of the summer of 2020, after George Floyd and Breonna Taylor’s killings and the mass civil rights protests that included a lot of mainstream white people — people who weren’t seen as radicals for racial justice. And then Biden won in 2020.
That really frightened the Republican Party. And this (the concerted attacks on LGBTQ+ rights) is an effort to try to roll the clock back and try to put the genie back in the bottle.
They think they’re going to rile up their base through these laws, through media attacks against critical race theory, through the claim that schools are forcing transgender identity on kids.
They think this is the way to win the midterms.
It’s striking that many of the GOP efforts — controlling who uses bathrooms, banning transgender athletes from competing in sports, banning LGBTQ-themed books —focus on schools, and learning.
Jagmohan: We have to remember that the front lines of American politics have always been education.
That’s the thing that’s been both terrifying and politically brilliant: This approach reframes education — it’s about race and education, about LGBTQ youth as a form of the state indoctrinating children and undermining parental authority.
With this, you can drive moderate conservatives more deeply into the conservative camp.
Katyal: On one hand, some of these initiatives say: We want to put the autonomy in the hands of parents, so we don’t want kids to be exposed to LGBT issues before they’re in third grade. So, that looks really supportive of the interests of parents’ rights.
But a lot of parents actually want their kids to be exposed to diverse families as early as possible so that they realize that families come in all different shapes and sizes.
On the other hand, you have these initiatives that actually erase parental autonomy when they deny parents the right to pursue gender-affirming medical care. So, there is an internal inconsistency.
Lawrence Rosenthal, chair and lead researcher, Berkeley Center for Right-Wing Studies: The Republican Party has defended participants in the Jan. 6 violence. Party leaders give them a pass, for whatever ensemble of reasons, starting with: They’re the base, and if we don’t follow the base, we can’t win elections.
These extraordinary, fantastical ideas, generated from the most extreme right, are migrating into the Republican Party and its leaders. The LGBTQ focus is the most extreme iteration of this migration.
Authoritarian figures like Vladimir Putin in Russia, Viktor Orbán in Hungary — hostility to LGBTQ communities is central to their politics, too. Is there a connection with what’s happening in the U.S.?
Rosenthal: In the U.S., at the extreme right wing of the Republican Party, there is a dynamic toward solidarity with Putinism. In that world, the respect for Putin has been extraordinary.
Sometimes it’s called traditionalism, sometimes traditional values. Sometimes it’s called Christian values. The categories get larger and larger — Christian nationalism, and then white nationalism.
In the U.S., within this ideological worldview — people are still just stunned that there is same-sex marriage in the United States.
Robinson: It’s not just in Hungary or in Russia. Emmanuel Macron in France also talks about so-called gender ideology. There is a sense in some parts of the West, in the U.K., for example, that transgender rights are a threat to people who are cisgender. The transgender-predator trope is circulating in many countries, including the UK.
The measures to ban books that deal with gender identity themes, or limit the ability of parents to provide gender-affirming medical care for their children, or bills to restrict use of bathrooms — how are these likely to fare in the courts?
Katyal: It’s too soon to know.
The most important thing is that when the Supreme Court has had the opportunity to speak clearly and with one voice, it has held that employment discrimination against LGB and transgender individuals is illegal under Title VII (of the Civil Rights Act of 1964) . That opinion, which was written by Justice Neil Gorsuch, has a really important message.
Whether or not the scope of that ruling can extend to these other more complicated familial issues and parental issues — we’ll see how it goes.
Robinson: I would predict the court would not roll back Obergefell v. Hodges (which legalized same-sex marriage), in part because of the broad public support. … I think that many of these state laws, the “Don’t Say Gay” bill in Florida, are vulnerable. I would expect many of them will be struck down by the lower courts.
But when there’s a contest between LGBTQ rights and the rights of religious people — right-wing religious people, to be specific — the pattern has already been established that LGBTQ rights are secondary to the rights of conservative religious people.
For example, when a Catholic charity said, “We will not facilitate adoption by same-sex couples because our faith says they’re not married, even though the law says they are married,” Justice Gorsuch and the other justices ruled for the Catholic charity.
Most of these proposed laws are affecting conservative states, such as Texas and Florida. While they’re distant from California, do they have a harmful impact here?
Huang: It absolutely has a massive impact on mental health, and that translates into physical health. That translates into the ways that folks engage the world.
We know that LGBTQ youth — and not only youth — have severely high rates of housing insecurity and food insecurity.
This comes not only from the incredibly, overtly violent legislation or policies or practices, but also the things that are perceived to be neutral, but that have impacts on people anyway.
I’m paid to do this work, and this is something that weighs on me so much because it’s not only my work, it’s my life. I’m literally opening up my social media, scrolling down and hoping that I don’t see people in my world say that my existence is up for debate.
Katyal: In my whole life at Berkeley, probably the one thing that’s made the biggest impact on me has been the recognition of how these debates affect my trans and non-binary and queer students, whether it happens in Florida or Texas.
I’m reminded of how students must have felt during the civil rights era before there were federal laws that protected them.
It means that we, as educators, have to do everything we can here in California to make sure that our students feel safe and feel supported and feel protected.
As we consider this backlash against LGBTQ rights, what does the future hold? Is this going to burn out after the election, or will it be with us for a while?
Lenz: Voters may be getting more used to other people being openly gay, but openly transgender still seems foreign to some people, especially outside of cities.
But it’ll probably be a losing issue in a few years. As values change, my hunch is that voter attitudes on transgender people will eventually track opinion on same-sex marriage, which eventually became widely accepted.
Robinson: If this strategy doesn’t work in the midterm elections, do the Republicans abandon this form of identity politics, or does it take a new form?
I think we know that if it works, if Republicans win with this strategy, we’ll see more attacks on LGBTQ folks, more attacks on racial justice. So it really is an important kind of test case for justice.
Justice is on the ballot in November.
Jagmohan: Martin Luther King Jr. had this very powerful notion: Whenever you have a victory, you’re going to face a backlash — and then you have to recalibrate and push forward. This is how progress moves.
We tend to think of a struggle to win rights, but we need to think of the struggle to maintain the rights we won. We need to think of the fragility of rights and the fragility of goodness in this country.