Playing to win against the attacks on LGBTQ progress

Democrats should make smart decisions about when to fight and when to make a tactical retreat.

The LGBTQ rights movement has been the signature political success story of my lifetime.

When I was a kid, overt homophobia was routinely expressed even in a liberal, relatively gay-friendly place like New York City, and the idea that it would be intensely embarrassing and shameful to be mistaken for gay was a staple of 1990s sitcoms. Bill Clinton not only signed the incredibly homophobic Defense of Marriage Act, but he was also (by far!) the most pro-LGBTQ president we’d ever had. His appointment of an openly gay man to serve as ambassador to Luxembourg counted as a record of strong pro-LGBTQ advocacy at the time (his nomination was blocked for years by Senate Republicans, culminating in a recess appointment). In the 2008 presidential election, Barack Obama ran on the position that it should be illegal for gay and lesbian couples to get married but that they should be allowed to volunteer for military service; John McCain’s position was that volunteering for military service was unacceptable.

But the acceptability of same-sex relationships has increased so rapidly over the course of my life that Obama’s first-term stance now seems unbearably reactionary. The entire terms of the debate have shifted.

We had a roughly 10-year period of political routs (starting with the repeal of “don’t ask don’t tell,” continuing to the Obergefell decision, through to Bostock) in which the left was constantly on the march. And a new PRRI poll confirms that both marriage equality and LGBTQ non-discrimination law are not only popular but increasingly so in a population that continues to secularize and grow more tolerant.

But after taking a lot of Ls, conservatives have regrouped around a new set of issues, including an effort to ban gender-affirming medical care in Texas that will be repeated if it holds up in court and key provisions of Florida’s new Parental Rights in Education Act that seem aimed at making K-12 classrooms more hostile to LGBTQ people.

At the same time, I think progressives have grown somewhat overconfident about the broad popularity of some of these issues and are not paying enough attention to the potential electoral ramifications of supporting trans participation on women’s sports teams. The Transgender Law Center itself says that in their message testing that “our opposition wins the debate on trans youth in sports against any and all arguments we have tried for our side.”

It is not smart for elected officials to take up a political cause whose own advocates say it’s currently a losing position. And I think it’s important not to die on that hill because there are other important political fights that are winnable.

“Don’t say gay” in Florida

Opponents of the new Florida law have characterized it as a “don’t say gay” bill and seem to feel that it is obviously outrageous. I think this bill is pretty bad, but I want to warn that the polling on it is decent for conservatives given favorable wording of the question, so progressives really are going to need to make the case here.

The key provision is this sentence:

Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.

Now what the poll finds is that using that exact statutory language:

• 51 percent of Americans support “banning the teaching of sexual orientation and gender identity from kindergarten through third grade,” with 35 percent opposed.

• And 52 percent support the “age-appropriate” provision for grades four and up.

If you step back and think about it, obviously everyone thinks that pedagogy should be age-appropriate. So the fact that this only got 52 percent is an indication that people are not totally naive about what this means in practice. And in fact, the whole issue with this law is that it is deliberately ambiguous as to what is being banned.

Right now my kid’s school teaches reading, math, and science every day and also has classes they call “specials” (music, art, PE) that are taught more sporadically. If you were to ask me whether they should cut back on some of that in order to make room in the curriculum to teach about sexual orientation and gender identity, I would say no. But if you were to ask me whether some of the books available in the classroom should feature characters who have same-sex parents, I would say yes. And if I were to hear that a teacher who is married to a woman got in trouble with the authorities for telling a kid who asked about her husband that actually she has a wife, I’d be horrified.

Conservatives insist that’s not what this law is about:

• Max Eden of the American Enterprise Institute says the meaning of this is that “teachers in Florida will not be permitted to talk about sex-stuff until kids are in the fourth grade.”

• Ben Shapiro says the point of the bill is “protecting small children from the predations of adults.”

• Ron DeSantis’ press secretary says it’s an “anti-grooming bill.”

But obviously if you read the statutory language, it is not narrowly tailored to prevent the discussion of explicit sexual material with young kids. It’s been drafted with deliberately broad, deliberately vague language.

Some conservatives want a broad rollback

One interesting thing about the conservative movement is how effective they’ve been at getting everyone to shut up about the marriage issue now that their position is unpopular. The Supreme Court has gotten a lot more conservative since it handed down a 5-4 decision in favor of marriage equality, but nobody in the U.S. Senate or the conservative legal movement talked about using the Kavanaugh or Barrett nominations to reverse that.

And yet even though marriage equality is very popular, it’s still quite divisive among rank-and-file Republicans. In theory this could be a troublesome wedge issue where safe seat Republicans are constantly talking about rolling it back, and more moderate or vulnerable Republicans need to argue with them. But instead, the movement has largely acted with message discipline and savvy to just stop talking about it.

During the debate over the Florida bill, some state legislators did let their more expansive aspirations out of the bag:

Such a law would directly impact how teachers could provide instruction. At a Senate hearing on Tuesday, Republican Sen. Travis Hutson gave the example of a math problem that includes the details that “Sally has two moms or Johnny has two dads.” Republican State Sen. Dennis Baxley, who sponsors the bill in the Senate, says that is “exactly” what the bill aims to prevent.

Jim DeFede @DeFede

For those interested in seeing the entirety of Senator Ileana Garcia’s speech on Tuesday where she said being gay is “not a permanent thing” here is Part 1

This is all just to say that not only is the Florida bill vague, but it is deliberately vague. State party leaders were aware of progressive concerns about the bill and could have amended it to address those concerns if they had wanted to.

But they didn’t want to. For political purposes, they like the current dynamic where the left denounces the bill and then Republicans claim it’s actually very modest.

HB 1557 in practice

And my guess is that in practice, the impact of this legislation probably will be pretty modest.

Suppose a student with two moms mentions that fact about himself in a first-grade classroom, some other kid says that’s not possible, and then a teacher explains that some families have two moms or two dads. I think it is pretty unlikely, in practice, that this teacher will get in trouble with anyone. If anyone does try to get the teacher in trouble, then the teacher’s lawyer is going to want to cite all these Republicans saying it’s really just a modest bill about “sex stuff.” And my guess is that in practice, groups that opposed the bill as extreme and overly broad are going to flip around and will also defend the teacher by citing the “it’s only about ‘sex stuff’” argument.

And if school administrators and Florida judges do try to implement a broad clampdown on any mention of LGBTQ families, they are going to be courting an obvious backlash.

But I also don’t find the vagueness and likely lax enforcement to be totally benign. Sodomy prosecutions were extremely rare even when the laws were on the books, but they still operated as a tool that police and prosecutors could wield against people and still served to keep gay people closeted and fearful. Leaving random legislative tools around for bigots and maniacs to use to hassle teachers seems like a bad idea.

The “age-appropriate” provision for grades four and up is even worse in this regard. Obviously school material should be age-appropriate! The whole question is which material is the age-appropriate material and who is empowered to decide. Just tossing a fatuously vague provision like that out there and linking it textually to “sexual orientation or gender identity” seems designed to make schools generally more hostile to LGBTQ people. And that’s bad. But absent a specific case of overreach in implementation, it’s probably not so bad that it will produce an obvious backlash.

It’s worth trying to win these battles, but that means being smart.

Playing to win

If Ron DeSantis were running on a platform that explicitly restricted LGBTQ teaching in classrooms and also banned same-sex marriage, he would have a losing position. But he isn’t saying that explicitly. The Supreme Court took the marriage topic out of the legislative arena, and conservatives have mustered the discipline to instead fight on more ambiguous winning terrain. In contrast, Democrats seem to have pretty uniformly lined up behind an explicit and unpopular position and are largely engaging with arguments against it by denying the consequence of their position — often by butchering facts and science about athletic performance in a way that makes the left look silly even to people who aren’t invested in the particulars of the issue.

It is not obvious to me that there is a strong philosophical or conceptual basis for gender-segregated sports leagues, and someday we might come to a consensus that divisions by weight or size or some other factor make more sense for some sports. But that day has not yet arrived, and I don’t think it’s productive for activists to push Democratic candidates or elected officials to walk this plank before voters are convinced that it’s a good idea.

One prominent feminist told me that she hesitates to raise any doubts about the sports questions while trans people are under attack, but I don’t think politics really works that way. If progressives insist on hewing to a high-salience, unpopular position that trans advocacy groups concede they don’t have broadly persuasive arguments for, then school boards are going to end up dominated by bigots like Dennis Baxley and Ileana Garcia who try to craft legislation and policy that harasses and undermines LGBTQ students and teachers.

That would be a really bad outcome, and it’s worth fighting against it in a smart way — by arguing against morally indefensible policies without taking up electorally indefensible positions of our own.