Claire Bond Potter

Why one anti-trans bill went too far for Republican Gov. Asa Hutchinson

Arkansas Gov. Asa Hutchinson vetoed Monday an anti-trans bill passed by an overwhelming majority. The Republican had already signed a bill banning trans girls from athletic competition against other girls, and one affirming the right of healthcare professionals to refuse treatment for moral or religious reasons. But HB 1570, which would have banned gender-confirming treatments for minors, was "indefensible."

Why?

First, we should stipulate that the surge in anti-trans legislation is a national phenomenon. None of this stuff was written in Arkansas. Dozens of state-level bills introduced in the aftermath of the 2020 election were written from cookie-cutter legislative templates originating from the American Legislative Exchange Council (ALEC for short), a 501(c)(3) founded at the dawn of the culture wars in 1973.

Legislation and ballot initiatives defending traditional views of sex and gender have historically whipped up the conservative base. Since 1985, ALEC has been well-known for drafting legislative templates that seek to put a brake on expanding LGBTQ civil rights and liberties. In a memo the organization has since disavowed, articulating homosexuality as a choice linked to predatory sexual behavior and pedophilia.

Although it does not embrace gay rights, ALEC does not overtly oppose them either. Instead, the organization preserves traditional stances on gender, sexuality and family by elevating "moral conscience" and "protection." This is what may have put trans girls, even more of a minority than LGBTQ adults, in the organization's crosshairs.

This shift followed Obergefell, the 2015 Supreme Court ruling that legalized gay marriage across all 50 states. The conservative backlash was swift. By February 2016, the Human Rights Campaign identified an "unprecedented onslaught of legislation … targeting transgender children." More than 40 bills were introduced in two years.

Following the 2020 election, conservative legislators in multiple, mostly red, states introduced a blitz of anti-LGBTQ legislation. Sixteen establish the right of health care, clerical and government workers to refuse services on the grounds of moral conscience or faith. Three times as many prevent minors from gender confirmation treatments; and from athletic competition against, or sharing bathrooms with, other girls.

These bills present themselves as acts of conscience and fair play. Echoing the language of the anti-gay Save Our Children campaign, they "save" kids from harms inflicted by adults. The "Save Women's Sports Act" proposes to preserve female athletes from someone who, in the words of one advertisement, "claims to be a girl, but was born a boy." The "Save Adolescents from Experimentation Act" reinforces science skepticism, implying that gender confirmation care is untested and risky.

Anti-trans activists erroneously view gender dysphoria as a myth, identifying those who support transgender children as elevating unstable, youthful "feelings" over the biological "facts" of physical bodies. "Facts don't care about your feelings," a slogan propagated by conservative media personality and anti-trans activist Ben Shapiro.

Bodies are not the only reality conservative lawmakers are concerned about: keeping conservative voters attached to emotionally-charged cultural issues energizes them. Yet only 24 percent of Americans now believe that homosexuals do not deserve rights and equal treatment. Over half of Christian millennials support gay equality.

Even anti-trans bills can be toxic. While easy to pass in red states, they are a liability for any governor aspiring to recruit the corporate donors necessary to running for national office. Gov. Kristi Noem of South Dakota threaded this needle. A potential 2024 Republican presidential candidate, she vetoed an anti-trans sports bill opposed by the NCAA and by corporations. Noem then issued her own executive orders restricting women's athletics to those whose female gender is "reflected on their birth certificate or affidavit provided upon initial enrollment." That appears tough, but because birth certificates can be changed in many states, it creates a legal window.

Asa Hutchinson may have been in a similar position. In a public statement, he explained the bill banning gender confirmation treatment was "overbroad, extreme," and failed to "grandfather those young people who are currently under hormone treatment." It was also government overreach, the governor said: "The state should not presume to jump into the middle of every medical, human and ethical issue."

Cannily, Hutchinson supports conservative principles while avoiding conflict with a Biden administration determined to legally expand transgender protections. While affirming gender difference, he has also distanced himself from the anti-science wing of the GOP by subtly admitting that gender dysphoria is, in fact, a fact, not a feeling.

Finally, by gesturing to the privacy of the doctor-patient relationship, he has signaled support for another sexual right, one that white suburbanites value most: access to legal birth control and abortion. Hutchinson signaled that his support for a more moderate Republican when he declared he could not support another Trump candidacy. Now he has raised another question: Is he supporting himself in 2024?

The GOP embrace of the new culture war isn't fooling anyone

On Monday, US Rep. Jim Jordan of Ohio, the Republican Party's most aggressive culture warrior, called for an investigation into "cancel culture."

Welcome back to the culture wars.

We've been here before.

First, there was McCarthyism. Ostensibly a Cold War campaign against fascism and communism, the House Un-American Activities Committee (HUAC) dug deeply into university campuses and media companies, ferreting out "subversive" ideas like nuclear non-proliferation, racial equality, and homosexual rights.

Alternative media—Regnery Press, The Manion Forum, The National Review, and 700 Club—supported the expansion of the right. Repudiating liberalism in both parties, by the 1970s these conservative outlets were actively resisting the "cultural excesses" of the 1960s: free speech, desegregation, free love, and freedom from religion.

Jim Jordan's initiative not only substitutes rhetoric for policy. It substitutes freedom from ideas for freedom of thought.

Conservatives at the time named this policy agenda "family values." By 1991, however, sociologist James Davison Hunter had renamed it a "culture war." Otherwise abstract issues like family, religion, patriotism and freedom were now "controversies that seem to have a life of their own," dividing Americans into opposing political camps.

By 1992, the culture wars strategy took firm root in the GOP as right-wing populists, under the leadership of Patrick Buchanan, repudiated party moderates. While Buchanan failed in his bid for the GOP nomination, at the convention that summer he urged a return to Reaganism when "they were proud to be Americans again."

"The central organizing project of this republic is freedom," Buchanan thundered, excoriating gay rights, abortion rights, and secular public education. "My friends," he continued, "we must take back our culture and take back our country."

But is the crackdown that Jordan and the Trumpist majority of the GOP are calling for—eliminating diversity initiatives on campus and hate speech on the internet as if they were indoctrination—simply another chapter in the story of the same culture war?

No.

To be sure, conservatives always sought to protect their rights at the expense of others. The "right" to be free from homosexuality at school and in public jobs required censoring curriculum as well as policies like the 1978 Briggs initiative that purged LGBT teachers from public schools, and the 1993 "Don't Ask, Don't Tell" compromise forced on Bill Clinton that allowed queer people to serve secretly in the military.

But Jordan's initiative not only substitutes culture-war rhetoric for actual policy. It substitutes freedom from ideas for freedom of thought. While conservatives are up in arms about Amazon's refusal to sell books that make false or conspiratorial claims, Trumpists are engaged in the more dangerous task of purging public libraries of LGBTQ books, suppressing reports on climate change, and ending diversity training.

Similarly, conservatives recognize that creating a parallel social media platform is not a sufficient antidote to having their speech curbed on Twitter and Facebook. Unlike television, radio, and mailings, social media built for conservatives will not be seen by, or capture the imaginations of, independent and uncommitted readers and viewers.

By contrast, in the 1990s, Republicans like Newt Gingrich offered a concrete map for waging a culture war. Designed to mirror the Bill of Rights, the 10-point "Contract with America" offered voters in 1994 an explicit program of tax benefits, welfare cuts, and a strengthened military that aligned with right-wing conservative objectives.

Today's Republicans have no policies. They have hot takes, irony, and a vague antipathy to "wokeness." If Jordan calls for investigations of non-criminal activity, Ben Shapiro bides his time with mockery. On February 26, in response to the kidnapping of Nigerian schoolchildren, he tweeted: "Time to unleash the power of hashtag."

Time will tell whether this was a winning formula, but initial signs suggest fake culture wars won't work in 2022. Yes, Donald Trump won the annual straw poll at last week's Conservative Political Action Conference with 55 percent. But since CPAC is Trump country, shouldn't he have won overwhelmingly? The answer is yes.

The GOP's increasing embrace of this new culture war isn't fooling anyone.

Much less conservatives.

The revenge of the 'liberal tears'

For four years, Donald Trump and his followers mocked Democrats as congenital failures and weepers of "liberal tears." On the 2020 trail, Trump imagined a fistfight he might have with Joe Biden (a famous male weeper), promising his followers that Biden "would go down fast and hard, crying all the way." Madison Cawthorne (R-NC), celebrated winning a Congressional seat last year by tweeting: "Cry more, lib."

It was a ritual in 2020 for Trump supporters to taunt Democrats for crying or, like a bully on a playground, anticipate with delight the tears that would flow from liberal eyes when Trump and his allies scored another victory.

But Biden won, and crying may be back. On Monday, his nominee for attorney general, Merrick Garland testified before some of the same senators who refused him a Supreme Court hearing in 2016. Garland stopped to compose himself as he told the story of his grandparents' flight from antisemitic violence, and his "obligation to the country to pay back" for their lives. While some outlets respectfully described him as "emotional," others noted that Garland was "tearing up" as he spoke.

Of course, this kind of bullying is not entirely conservative. It is also good business. Just as you can purchase bacon-scented gun oil branded as liberal tears, there are coffee mugs for sale that hold "alt-right tears," "white tears," "MAGA tears" and the tears of men who are white, straight, and just plain mediocre.

But history skews towards weeping as a conservative slur. From the 1890s through World War I, Progressive men were taunted by their "red blood" opponents as effeminate "mollycoddles" prone to breaking down in tears. Women were excluded from voting until 1920, and then from office holding for another half-century because their tears were seen as the opposite of reason. A 2019 study showed that one in eight Americans still believe women are too emotional to hold office.

While President Dwight Eisenhower was known to have a good cry when asked to recall the sacrifices of World War II, male tears largely remained a sign of political weakness and failure for most of the 20th century. In 1952, then-Senator Richard Nixon cried when confronted with a fundraising scandal. Jimmy Carter was widely reported to have wept when he lost the 1980 election while the victor, Ronald Reagan, never shed a tear in public and was famous for displays of masculine anger.

That changed with Bill Clinton, who may have done more than any modern liberal to rehabilitate crying and associate it with the Democratic party. While Clinton cried very little as president, photographers often caught him in tears as he watched the former First Lady succeed as a politician after 2000.

The association between crying and authenticity was cemented in the 2008 New Hampshire primary when a TV crew caught the normally restrained Hillary Clinton on the brink of tears, a personal moment that gave her a victory over Barack Obama. By 2016, Obama had cried so frequently in public that it was said to be "revolutionary."

Obama's emotional honesty may have encouraged other men to cry too, even Republicans. John Boehner, who cried when he became speaker of the House in 2010, routinely wept when asked about his bootstrap story. And Glenn Beck, who wept so much— faith, family violence, and George Washington were a few triggers—that he was suspected of faking it and characterized by Trump during the 2016 campaign as a "weird guy" who was "always crying."

Trump hated tears. He announced on the eve of his inauguration that he never cried because he liked "to get things done." Not crying, as if others wept at the drop of a hat, became part of the Trump brand. While Melania Trump was said to have cried in despair when her husband was elected, she never cried in public: Trump once said proudly that she wouldn't cry if he died. Although Ivanka is said to cry when calling editors to have negative publicity retracted, no one in the Trump family has been photographed in tears.

And ironically, the false narrative of Trump's victory still hinges on tears. "Gimme four more years," a white adolescent boy lip-synced on TikTok last week, draped in a Trump flag. "What comes next? Liberal tears." Bumper stickers and tee shirts that used to read "Trump 2020: make liberals cry again" have been updated for an anticipated 2024 campaign.

They are now on sale at Amazon: because the only losers are people who cry.

'This will never end': Why conservatives sound increasingly desperate and ominous

Just a day before the House stripped Georgia Republican Congressperson Marjorie Taylor Greene of her committee appointments for violent speech and disseminating conspiracy theories, Rep. Jim Jordan was apoplectic. In a surprisingly tough interview with Sandra Smith and John Roberts of Fox News, the House Republican from Ohio warned that censuring Greene was a "slippery slope" toward silencing all Americans

Although Jordan never used the phrase, Twitter picked up on the "slippery slope" argument. Acting against an elected representative was more dangerous to democracy than Greene's proposal: that House Speaker Nancy Pelosi be executed for treason.

House Republican Jim Jordan: "This will never end, and if we don't stop it now, every single American is at risk."

"Tell me where it ends, Sandra?" Jordan asked, pointing at the audience. "Who's next? Look at the cancel culture!" If the Democrats "keep attacking people, their First Amendment free speech rights, where does it end?"

American politics has always relied on logical leaps, or articles of faith. Rhetoric like "When in the course of human events" and "the only thing we have to fear is fear itself" and "there's not a liberal America and a conservative America, there's a United States of America" inspire faith in the American democratic order.

But the "slippery slope" argument invokes darkness, instilling or leveraging irrational, unfounded fears of annihilation. By the 1870s, pseudo-intellectuals like Madison Grant insisted that only colonialism, ending non-white immigration, and suppressing Black civil rights would prevent the worldwide destruction of the "Caucasian" race.

FBI Director J. Edgar Hoover saw the rise of socialism after World War I similarly, launching a decades-long assault on the left starting in 1919. Donald Trump's characterization of Latin Americans as murderous rapists enlisted fearful Americans in a ruthless and racist project to exclude, deport and divide.

But the slippery slope fallacy is also established conservative political theory. In Road to Serfdom (1944), Friedrich Hayek proposed that nearly invisible choices to restrict freedom ended in dictatorship. Contemporary legal scholars, philosophers, and ethicists take the slippery slope—that B inexorably follows A, and is far worse than A ever was—seriously. In 2003, Eugene Volokh, the legal scholar, argued in the Harvard Law Review that, while not absolute, "slippery slopes are … a real cause for concern."

The slippery slope also proposes that there is a descent into chaos and unfreedom that can only be prevented by checking liberal policy agendas: abortion, gun control, and national health insurance. On the 10th anniversary of Roe v. Wade (1973), Ronald Reagan declared that failing to protect every fetus was a slippery slope to legalizing infanticide. Paying doctors to consult with terminally ill patients under Obamacare was re-cast as a slippery slope toward "death panels." In Box v. Planned Parenthood (2019), Clarence Thomas not only incorrectly linked legal abortion to eugenics, but also insisted the procedure was "an act rife with the potential for eugenic manipulation."

Not surprisingly, much of Donald Trump's strong-man rhetoric depended on logical fallacies, many of the slippery slope variety. As he approached the 2020 election, these became more catastrophic. A vote for a Democrat was a vote to replace the American Dream with socialism. Background checks—which he had once cautiously supported—were now a "slippery slope" leading to a future "where everything is taken away."

As Jim Jordan threatened on Fox News, Republicans could learn to take everything away too. "It won't stop with Republicans. It'll-it'll go to all of us," Jordan said, jabbing his thumbs into his own chest. "So this will never end, and if we don't stop it now, every single American is at risk. And that's what concerns me." Why, Senator Dianne Feinstein's name had just been removed from a public school in California!

Slippery slope arguments are tactical. They distract from real issues, while activating conservatives to overcome their differences and rally around a vague, but potent, idea about freedom. Expect to hear more of this rhetoric in the coming months, as Republicans frantically try to rebuild a party riven by defeat and disunity, and work to hide the complicity of the party leadership in the violent end to Trump's presidency.

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