“It will get worse before it gets better”: Nate Shalev on anti-trans legislation

The year 2023 marks the fourth consecutive record-breaking year for the number of anti-trans bills across the country. In 2021, a total of 79 bills were introduced in state houses; as of November this year, 506 bills were being tracked by the American Civil Liberties Union (ACLU).
Some of the bills, part of a coordinated campaign by the GOP to curb the rights of transgender people, seek to deny or limit access to a range of basic necessities like healthcare and bathrooms, while others seek to bar trans youth from participating in sports or force teachers to out their students to parents.
We asked our inclusivity expert in The Lab, Nate Shalev, about the impact of these bills, why it’s happening now, and how we can support trans people in the workplace.

The last four years have all been record-breaking in terms of the number of anti-trans bills. Why is this happening right now?

Going a bit further back, some major protections for LGBTQ+ people, such as the right to same-sex marriage, were passed as language protecting trans folks was taken out of the bills. Whether that was intentional or not I can’t say, but it’s certainly one reason why it’s possible to discriminate against trans people today. In a way, for LGB people to be granted rights, there was a need for normalizing — essentially saying “Hey we’re just like everyone else,” and it seems that it required trans people to be left out. Today’s activism is partly an attempt to walk back on that initial cleaving and closing the regulatory gap.

The second reason the debate is growing louder is politics. Republicans see the anti-trans bills as a galvanizing force, just like Roe v. Wade was for a long time. Essentially, after the Supreme Court’s overturning, there was a need for a new cause that could rally the base. And I’d say the choice was rather arbitrary: sometimes it’s immigration, sometimes it’s crime… but in the end, it’s all a way to consolidate power.

Polls in the last three years show a majority of Americans favor protecting trans people from discrimination, all while a slew of anti-trans bills have been passed. Similarly, a majority of Americans were pro-choice in the period leading up to the overturning of Roe v. Wade, including in red states. Is there a similar dynamic?

In a way, yes. Regarding abortion, I think many people simply feel that everyone should have the right to do what they like. But then if you add some nuance, asking, what about late-term abortions? What about in cases of rape? Or what if the birthing parent’s life is in danger? Then you’ll get more varied answers. The trans debate is somewhat similar: ask if trans folks should have rights, and you’ll get a resounding yes. But then ask about gender-affirming care for youth, or trans women in sports, and, again, people become more hesitant. These are also the questions at which Republicans have directed their fire. Because people tend to not be well-informed or have a good understanding of what it’s like to be trans, it makes sense to start with topics about which there will be more ambivalence. After all, Republicans didn’t come out the gate attacking trans adults, they instead started where they knew they could get the most support — gender-affirming care for youth, school sports, and education. And they did get traction, all while paving the way to undermine the rights of trans adults.

While some of the most radical bills — like forcing schools to out trans children to their families or banning any mention of sexual orientation or gender identity in the classroom — are hard to see as anything but wilful hate, other parts of the debate, such as sports, appear to potentially concern conflicting virtues. Are there parts of the debate, such as prohibiting transgender women from competing on women’s sports teams, where you think there is reason for us to have a debate?

Yes, but I think the first thing to understand is that we’re talking about a very small part of the population — I’d say less than 5% — and then you have to consider what percentage of that subset are professional athletes.

The second thing to consider is that sports are inherently unequal. You have Michael Phelps who has webbed feet, basketball players who are six-five, and with regards to cisgender women, they have wildly different levels of testosterone. So regardless, you get these natural variations that cause unfairness. If we’re trying to level the playing field in sports, the discussion should start with what that actually means. Do we mean that everyone who plays volleyball has to be under six feet? Does it mean testing the hormone levels in cisgender women as well? That sounds ridiculous. So it seems to me we’re not having a discussion about fairness in sports, but about excluding trans people. And if bodies are the criteria for doing that, we end up in really murky waters, cisgender and trans people alike. A trans woman who’s been on estrogen for years will have hormone levels and muscle mass that are closer to that of a cisgender woman than a cisgender man. Are we then going to start dissecting how far gone trans people are in their transition? This isn’t a non-issue, but it’s not one that requires legislation.

Lastly, I’d say there’s a framing issue at work. When we talk about sports or bathrooms, people aren’t really worried about trans women playing sports, but men playing women’s sports; people are worried about male violence in women’s bathrooms, not trans violence. I think when people are transphobic or don’t understand trans identity, they see a trans woman as a man playing a sport. And that’s not the case.

You mentioned the regulatory divide, and how language protecting trans people was taken out of bills in order for them to pass. So what about the LGBTQ+ community’s stance on anti-trans bills as a whole — is there a schism with regard to opinions about trans rights?

I wouldn’t exactly say there’s a schism. But I think trans folks have been the most historically marginalized, and remain so today, which means they have fewer resources and lack major leadership positions. So it’s my perception that most people within the movement do think that trans rights are important, but it’s still not a priority for major national organizations. Then, yes, there is both internalized and externalized transphobia within the LGB part of the movement that can become apparent in both implicit and explicit ways. I think there’s this sentiment that, those folks over there are not me and their cause isn’t mine. When marriage rights were passed, there were a lot of cisgender gay men with wealth and power who backed that cause, and that’s not the case for trans rights today. One of the major LGBTQ+ business organizations in the US is now hosting its biggest conference in Florida. From what I’ve seen, there’s no recognition of the terrible things that Florida is doing to trans folks.

Not every trans person wants to be an activist or a spokesperson and yet they’re at the heart of Republican efforts to galvanize rank-and-file supporters and rally donors. What’s your impression of how the trans community feels at this moment?

The mental harm becomes most clear if we focus on gender-affirming care. I believe people tend to view it as a luxury, but it actually saves lives. There’s obviously a sense of hopelessness that comes with not being able to access what is essentially a life-saving medication.

More broadly, discriminatory legislation sends the message that trans people aren’t wanted. To not feel safe in a community you love raises questions: What do I do? Do I move or do I stay? This is especially true for people who haven’t yet developed that solid sense of self, and for those who don’t have a support network. We’re also seeing high levels of homelessness and unemployment that exacerbate the feeling of powerlessness and with that the risk of mental health issues, as well as suicide. That is also true in terms of intersectionality, where Black trans folks, for example, or disabled trans folks, are at even greater risk.

At this particular time, what can colleagues do to offer support?

I think the first thing is to educate yourself on the issues, trying to better understand what it means to be trans. That way you’ll be more equipped to help and also identify your own knowledge gaps. The second thing is simply to get comfortable talking about the topic, which many people aren’t at the moment.

The hesitance to have a conversation can of course be due to transphobia, but I imagine that some people are also afraid of making mistakes, saying the wrong thing and hurting someone. What’s your advice there?

I’d say you’re probably going to make a mistake at some point so just try to be okay with that and maybe prepare for what to do when it happens — and the best thing to do is to correct yourself and move on. Say somebody is using the wrong pronoun and gets corrected, then just quickly apologize and that’s it. You don’t want to spend a ton of time getting defensive or over-apologizing because then it comes about you and it’s not. And, you know, this person probably just wanted to talk to you about the deliverables or some other corporate issue so getting stuck talking about pronouns and trans identities can get pretty uncomfortable. It’s worth remembering that these types of mistakes happen all the time within the LGBTQ+ community as well so there’s no point in getting bogged down — changes often take some time to get used to.

What are the main pains that trans people encounter in an office environment?

First, there is admin. That could be things like your legal name not matching the name you go by, filling out your insurance forms or changing your pronouns or name while on the job. Even getting into the office can be tough because you have to navigate security. All this adds up to a slew of administrative hurdles, but the broader issue is that it can be mentally tough and might even force you to out yourself unwillingly.

Then there are interpersonal biases in general. That can be navigating pronouns with the rest of the staff or dealing with recruiter bias. I remember interviewing for my last full-time job and being told that I might not be ready to handle external partnerships, even though I had a ton of experience with that. So what I heard instead was, “We think you might be too queer for our clients.” Situations like that can make you second-guess yourself and wonder whether the problem is you or transphobia. I think there’s often bullying or harassment happening that doesn’t rise to any legal level of discrimination. But you’re stuck because you don’t know what to do and often end up leaving the job in hopes of things being better elsewhere.

What are some first steps a company can take if there isn’t yet a support structure in place?

A key thing is having a relocation fund to help workers living in hostile environments and not mandating travel. Another thing is flexibility: if someone isn’t comfortable with, say, attending a meeting, then have a discussion about how to help. Do you need someone to go with you? Can we have the client come here? Do you need not to go at all? My last point is very US-focused, but it’s crucial to have robust healthcare packages and insurance benefits as some trans folks aren’t able to get the care that they need in their own state. And consider extending help to not only trans employees but family members too.

Lastly, I’d like to ask where you think we are headed with regard to trans rights. Will we see the pendulum pull back to something better in the near future?

I think it’s going to get worse before it gets better as there’s momentum right now. With an election coming up, anti-trans bills and rhetoric will continue to be a galvanizing force for Republicans. For now, I don’t think enough people are educated on the topic and I don’t think enough people want to be. To most, it remains a fringe issue they see as detached from their own lives.

On a more positive note, there are people willing to fight this, even if it’s not a majority. I do hundreds of speaking engagements every year where I’m asked to talk about this topic specifically — and that’s hopeful. Driving through systemic change can feel daunting, but making changes on an individual level is equally important — the impact causes ripples. It’s on the individual level I see the most opportunity for change today.

Photo: Brad Ogbonna for Welcome to the Jungle

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