The Left Hand of the Law
Anti-Drag Law's Policing Ought to Inform Political Responses
One of the seemingly more successful public arguments in defense of trans people lately involves a graph depicting rates of left-handedness over time. The graph has had a long life on trans Twitter but made it to platforms as large as Last Week Tonight, when John Oliver included it in a segment last year on anti-trans political attacks. A prominent version of the graph is sourced from a 2015 Washington Post article, and it makes an impressive demonstration of the lie foundational to panics over the ostensible growth in the number of trans people, the number accessing gender affirming care, and the presumptions encoded in the accusation of “grooming.” If the end of widespread attempts to convert left-handed people to right-handedness did not lead to a permanent rise in the number of left-handed people, but instead plateaued, then recognizing or even “encouraging” left-handed people’s flourishing does not itself cause an increase in left-handedness. During a period where programs of repression or conversion wane, the graph suggests, we might expect an uptick in public identification with a stigmatized trait, but that process does not also produce more of those traits. The uptick reflects a more accurate recognition of what had been artificially suppressed.
In other words, no one is groomed into being left-handed.
It’s a smart analogy, not only because the graph makes complicated dynamics of change over time, demographic measurement, identity, and the relationship between nature and nurture visualizable along two simple axes. The benign quality of being left-handed also borrows a de-dramatizing tone useful in relaxing the absurdly high stakes around trans difference. Although being trans isn’t defined by a single common trait, like left-handedness, it would be rather straightforward to understand trans differences as likewise benign, in the sense that they name one of many variations transacted across biology and culture, rather than an exception. The left-handedness graph asks that we acknowledge our humility on the culture end of the equation, admitting that we are not so powerful as to create trans people out of thin air. More to the point: making the lives of the trans people already on this earth better doesn’t also produce more of them, inadvertently or otherwise. The graph is, if nothing else, a politically efficacious tool when being accused of plotting to do just that, or doing it accidentally.
Like many of the arguments marshaled in defense of trans people, the defensive function of the analogy to left-handedness intensely downscales to deflate moral panic’s inflationary imagination. It means to de-fang a tidal wave of legislation, administrative violence, policing, media disinformation and political violence. It refutes pretenses that being trans is a direct product of cultural relativism, sinful decadence, biomedicine, or even Satan’s designs, which share the root wish to reduce trans people’s numbers to whatever illegitimate fantasy of social hygiene is gussied up as reasonable.
The question, for me at least, is what we give up in the shrinking of trans affirmations to deflate moral panic. (For one thing, we might argue that even if making life better for trans people did encourage more people to be trans, we embrace and even desire that as a positive outcome. There is nothing inferior or negative about being trans, after all; why be conservative about our numbers?) Refuting social contagion or grooming discourse is important given their depraved cruelty and aggressive function as a pretext for real social and political violence. But their terms are so muddied on purpose by their authors that they can cloud the judgement of trans affirmation, in turn. There is a limit to the usefulness of an analogy to left-handedness; or, more precisely, its efficacy has a context.
Take anti-drag legislation, one of the newer limbs on the many-headed hydra of anti-LGBT laws being entertained throughout the United States. Tennessee earned the inglorious title of first state to pass such a measure this past week. The law criminalizes drag specifically by defining it as “adult cabaret entertainment” equivalent to stripping or sexual performance. The regulation of “adult-oriented business” under state law restricts drag shows from including children as spectators, but also restricts venues hosting drag shows from being located within 1,000 feet of parks, churches, and schools. As a criminal statute, the law makes a first offense a misdemeanor but escalates subsequent infractions to felonies with to 1-6 years in prison as punishment.
Other anti-drag bills being considered elsewhere add a second definition of drag as a status offense: being publicly trans. A pair of Texas bills introduced towards the end of 2022, for instance, define drag as “a performance in which a performer exhibits a gender identity that is different than the performer’s gender assigned at birth using clothing, makeup, or other physical markers and sings, lip syncs, dances, or otherwise performs before an audience for entertainment.” As many critics have noted, the text of bills like this potentially criminalizes trans people’s mere presence in public; or, more cautiously, any singing, dancing, or expressive act by trans people in public. One concrete fear, then, is that anti-drag laws would allow police to arrest people gathered at Pride—an especially incendiary proposition since Pride emerged out of an anti-police riot.
It’s undeniably challenging to predict what the impact of these laws will, or could, be. I understand one reaction to them to be a worry that any or all trans people doing something even mildly performative in public—stand-up comedy, protesting, or even public speaking—could be subject to arrest. But this raises an important issue concerning the practical gap between the text of a law and its implementation: policing. If we pay attention to that gap and look historically, a more complicated story emerges than the uniform endangering of all trans people in public, one that could be immensely helpful in making sense of the political impact of anti-drag laws and organizing to defeat them. Tennessee’s law doesn’t strike me as poised, even textually, to criminalize a trans woman wearing a dress, say, at a professional association’s annual meeting at a hotel in downtown Nashville. (I appreciate Chase Strangio’s specificity in talking about this law.) But I’m not convinced that the language from the Texas bills would do so either. The reason is not that the law is weak, but that its implementation will have everything to do with class, work, and the function of policing.
Policing public life through the criminalization of dress and performance has a significant precedent: anti-crossdressing laws. The first was enacted in San Francisco in 1863, when the city outlawed anyone who appeared in public “in a dress not belonging to his or her sex.” As the historian Claire Sears explains in Arresting Dress, the context of the ordinance matters a great deal. The ordinance was, to put it simply, not sophisticated enough to target trans people specifically. (Of course, how could it have? In 1863 there was no uniform class of people with a trans concept attached to them for American lawmakers to target.) Anti-crossdressing statutes were part of the post-Reconstruction legal architecture designed both to produce geographic racial hierarchy in the cementing of Jim Crow and to regulate working-class neighborhoods, aims that converged in public order and decency. Provisions targeting cross-dressing, which were used to arrest gay and trans people, sat alongside the criminalization of public nudity, drunkenness, and the catch-all term “loitering,” which converted unemployment into a criminalized status, one blanket-projected on Black men to disenfranchise them. "Cross-dressing laws,” Sears points out, “relied on the same logic as early zoning laws, seeking to confine nonnormative genders to designated private spaces and to reduce their public visibility" (14).
This context matters immensely, as Tennessee’s new law follows quite obviously in its lineage; it is, in one sense, a zoning law with criminal penalties attached, restricting a certain kind of entertainment labor it terms “drag” to specific venues and neighborhoods. And as such, we might expect that the application of the law will reflect the history of American policing, about which we already know a great deal. It’s likely that low wage nightlife performers, like dancers, drag queens, and sex workers will experience an intensification of policing from forces already long practiced at pursuing them. The era of public order policing that sprung up in the mid-nineteenth century never ended; it’s just that a middle-class gay movement gentrified a narrow path out of those neighborhoods for those with the resources to become respectable (aka “private” about their gender and sexuality) in the eyes of the law.
Anti-drag laws, in short, have long been about regulating the power of workers by producing the border around the formal labor market. The larger history here concerns, for instance, the material reasons why trans women have long practiced sex work. To transition has long meant to lose work opportunities, both because the formal labor market demands gendered passing coded as professionalism, but also because eligibility for employment is much harder to come by without ample and consistent ID documents. Another way to understand the broad impetus of the legislative and political attempt to criminalize certain supports for trans life—nightlife work, along with healthcare access, access to public education, and access to bureaucratic gender—redounds in trans people’s unevenly circumscribed access to the labor market. Gaining access to a variety of formal employment is a concrete path to the material improvement of trans people’s lives. It’s no coincidence that as we see some of the first generations of trans people from the middle and working classes successfully entering the formal labor sector through education, accessing an array of jobs they had long been shut out of, that the countermove of reactionaries is to slam that door, hard. The targeting of drag as feminized, low wage work in the service economy, is akin to chopping down a tree by hitting the bottom of the trunk with the axe first. If working class trans women and other poorly paid trans people are the first to fall back into the informal economy, the ripple effect upstream will be loud.
But that process will not be instantaneous. For a good while, the privatization of gender as private property will promise the middle class they can buy their way out of the dilemma and implicitly ratify the state’s policing power. As with the criminalization of abortion in states with the highest rates of wealth inequality, bodily autonomy remains purchasable for those who can afford the high cost of traveling to a state with better laws. Think of which trans people, likewise, could afford, at least for a time, to purchase their hormones without insurance if coverage is taken away (as several states are currently attempting). The class impact of anti-trans legislation is their substance. These laws don’t target identity directly, they go after the means of living a life with any degree of mobility.
(As an aside, this is how we know that such laws will never target straight people’s many drag rituals, or family-branded stage performances that involve crossdressing. That was never on the table to begin with.)
I suspect this is, in part, why organizing against these laws has been so challenging. Moral panics and the ideology of anti-trans politicians don’t talk about labor and class—deliberately so. By neither do responses that presume that being trans is as simple as being left-handed, so that social tolerance, which so often means non-interference from the state, is the only thing affirmative trans politics could ever desire. We may be confident that we are not demanding the production of more trans people (though even that strikes me as unnecessary and cruel), but to do so sidelines an urgent material question that sticks uncomfortably close to it: don’t we desire a world in which living trans ways of life is concretely easier? A politics grounded in the concrete of living trans lives is concerned, first and foremost, with sex workers, drag queens, and other service economy workers, precisely because defending their interests has inherent value and upstream effects. By defending the material livelihoods of the trans people most affected by the implementation of anti-drag law—those targeted by policing—we widen the scope of what counts as a remedy to anti-trans politics. Is symbolic inclusion an effective remedy? Freedom from state discrimination? Is the goal here as shallow as the consumer’s right to “wear whatever you please”? Or is the context in which what you wear conditions your labor possibilities the site of much bigger and more sophisticated politics?
These are not new fault lines for trans politics. If anything, they are the oldest ruptures we inherit. In 1952, a group of self-identified transvestites who met clandestinely in their apartments in Long Beach, California, self-published Transvestia, likely the first self-consciously trans publication in the US. You might know the name Transvestia through a later magazine by the same name, founded in the early 1960s by Virginia Prince. A decade earlier Prince went by Muriel, and she was one of the contributors to this short-lived newsletter that only put out a few issues before it folded due to lack of money. It was also a high-risk venture in an era defined by the intense legal regulation of obscenity through the postal service, the only way to send out the newsletter to subscribers.
Transvestia’s founders named themselves members of “The American Society for Equality in Dress” (A.E.E.D.) because for transvestites, the criminalization of cross-dressing in public severely structured their lives. The group was formed of trans feminine people who would be later drowned out by an emphasis on gender identity and an inner true self, both which demand consistency in presentation and identification for recognition. Mid-century transvestites were the original “part-time women,” only dressing as their female selves during the evenings and on weekends. Their middle-class and property status during the day, often dependent on presenting as middle-class white men who were lawyers, bankers, and office workers, were not anchors they were willing to give up for womanhood. And as such, they remain one of the most stigmatized groups of trans people, often interpreted to have suffered from false consciousness—as in, they would have transitioned if they could, or had more courage—or dismissed as sexual fetishists. But it’s obvious that their experience of gender was tied primarily to their class status: they wanted to keep their jobs, houses, and sometimes marriages, and they built and entire culture around it. In that sense, they had an uncommonly honest understanding of gender, however middle class.
Not surprisingly, the contrast between the mobility and power they enjoyed when dressed as men, and the constant threat of arrest and ruin if they were caught by the police dressed as women, upset them greatly, forming their first political goal.
Even more unsurprisingly, their political orientation was rather conservative. Transvestia made a pitch for the respectability of what they called “the transdress phase,” reprinting the work of sympathetic sexologists explaining that they were not homosexuals and were not psychologically ill. They demanded the right to dress as they saw fit, a right at least one member of the editorial team, Edythe Ferguson, understood in light of her long career as a lawyer to be derivative of the American right to life, liberty, and the pursuit of happiness. It was a middle-class, narrowly tailored demand, and one that they couched as a double standard. In the first issue of the newsletter, the editorial team’s policy statement explained to readers: “our effort in this direction is motivated to the MALE transvestite against unjust discrimination; the feminine element are in the heyday of their transdress manifestations.” What they meant was that women had been wearing pants more and more since the war. If a woman in pants did not constitute illegal crossdressing, then how could a man wearing a dress?
It was a clever criticism, but it instantiated the very mistake I would caution against with the law from Tennessee. Women had begun wearing pants—specifically, denim jeans—because they were granted practical permission in industrial factory work during World War II. Women had not earned “the right to wear pants” as a symbolic legal right, or as a matter of formal equality. The police had simply chosen, for obvious reasons, not to arrest them for wearing pants to and from work. Their pants were tied to their work, to the class status of being a worker in the formal labor market and the public sphere.
The misrecognition of how and why women acquired the right to wear pants by Transvestia is a stark reminder that the means through which the law is applied—the police’s role in demarcating the public from the private and the formal from the informal market—shows that “anti-trans” power is not exercised by targeting a coherent class of people who identify as trans. Race, class, and the regulation of labor constitute its real fields of application and, as such, ought to be the site of both political analysis and organizing.
The saturating fear that no trans person can step foot inside a state with a drag ban is an especially difficult feeling to transform into political analysis and action. In this case, the good news is that the law doesn’t work at such a totalizing scale. The bad news, though, is that it has never needed to in order to outflank us. The difficult news is that much as 2023’s laws largely reflect 1863’s, the trans political analysis of 2023 is still largely similar to Transvestia’s in 1952.