Anti-Trans and Non-Binary Legislation, Part 2: Language and Its Impact

By Rafael Langer-Osuna, Melanie Rowen, and Molly Stafford

NALP Bulletin+
June 2022

Over the past year, transgender and non-binary people, and especially youth, have been the targets of well-funded coordinated attacks by anti-trans groups. In the October 2021 NALP Bulletin+, the Task Force on Supporting Gender Non-Binary Individuals in the Legal Profession published an article detailing some of the legislative pieces of these attacks (see "Anti-Trans and Non-Binary Legislation, Part 1: What NALP Members Should Know"). Specifically, we looked at the legislative campaigns to eliminate access to sports and access to healthcare for trans and non-binary kids. In the months since that article was published, we have seen some of these laws passed, as well as laws providing for the punishment of adults who support trans and non-binary kids. 

In this article, we are looking at the propaganda and messaging in our culture that underlies those campaigns, at the language being used right now to talk about gender, and how messages and terms that might not immediately register as harmful to trans and non-binary people deserve a closer look.

Our goal is to help NALP members to engage critically with what we are encountering in the news and in our professional and personal lives, so that we can make educated decisions about our language as terminology and usage continues to evolve. 




‘But the Rules Keep Changing!’

Current anti-trans propaganda is very intentional about the language it uses. Specifically, groups working to eliminate trans and non-binary people — to make it impossible to hold a trans or non-binary identity and participate in society — have adopted terms that, in recent decades, were actually developed or used by transgender and non-binary people and allies to try to create more understanding and acceptance. 

This is not new — it has happened in many contexts throughout history. Currently, we are seeing that terms such as “woke,” and “Critical Race Theory,” are being weaponized by anti-trans groups as part of a greater backlash against the Black Lives Matter movement that gained momentum after the May 2020 killing of George Floyd. Just as we need to continue to pay attention to how we engage with terms like “BIPOC” and “People of Color,” we need to stay attentive to how our language can be used to damage the very communities from which the language came.

When this happens, it can be confusing and misleading, and it can be difficult to track. It is easy to feel frustrated and at a loss for how to move forward with our language. But trans and non-binary people are experiencing concrete harm, including criminalization and violence, from these cultural attacks. So, we need to ask, and keep asking, what can we do to minimize the possibility that we unwittingly perpetuate further harm? 

 

Anti-Trans Terms and Narratives

This section considers a few terms that have been co-opted by the anti-trans movement. 

“Biological sex” and “gender identity” have been useful terms for trans and non-binary people; both terms are now being weaponized by the anti-trans movement to draw a bright line between “immutable characteristics” and “preference.” Creating this bright line encourages the narrative that there is a sharp divide between gender and sex, where gender is purely psychological, and sex is purely physiological. It’s not bad to have these two terms, although our neuroscientific understanding of the distinction between mind and body is evolving too.

The important thing to understand is that, just as a person can change their gender, biological sex is not immutable either. We know, for example, that not all non-binary people are trans, but many are, and as a result many people do change or modify their “biological sex.” This concept is further explained by a self-described queer graduate student in molecular, cellular, and developmental biology at University of Colorado Boulder, Liza Brusman: “…[J]ust like gender isn’t binary, our biology isn’t binary either: it, too, exists on a spectrum. In fact, many people’s bodies possess a combination of physical characteristics typically thought of as ‘male’ or ‘female’.”

“Gender socialization” has served as a useful term to identify how we, as a society, educate and instruct ourselves to conform to traditionally masculine and feminine gender norms and behaviors. It is now, however, being used to exclude transgender women from feminist spaces, and to erase non-binary people’s experiences altogether, with the rationalization that a person’s gender assignment at birth determines how they grew up and who they are at their core.

This reactionary position ignores the fact that socialization does not end when we turn a certain age — we are all being socialized, all the time. And, of course, being socialized in a gender that does not match one’s gender identity is radically different from being socialized in accordance with your gender identity. The former is, for some, nothing more than traumatization — an experience of being forced, as a square peg, through a round hole.

Another example is the term “assigned at birth,” which remains an important concept, but can be problematic for non-binary people when is it used as a shorthand for boy/girl/man/woman whether for purposes of describing someone’s purported “socialization,” or — more problematic still — trying to state what someone’s “sex” “actually is” or what their genitals are. As noted above, the use of AFAB (assigned female at birth) and AMAB (assigned male at birth) is problematic because these terms do not actually tell you anything about a person’s life or identity. “They describe ‘female socialization’ as if it were some singular, universal experience that cuts across all classes, races, cultures, and families, but somehow never across assigned sex,” writes Devon Price, author of the article, “‘Female Socialization’ is a Transphobic Myth.”

Queer communities and allies have been using this language, these terms, to try and make a better and more inclusive world that reflected and included us. There was context and nuance in that safe space. But as this language has become more visible and available in the mainstream, it has been deliberately co-opted by people with the opposite motive.



 

How Can We Support Trans and Non-Binary Associates and Students in Light of These Campaigns?

It is our responsibility to keep an eye on how the dialogue advances. Trans folks who are trying to establish and maintain rights, and those who mistakenly believe they can eliminate trans people, are both trying to influence gender language and its meaning. It’s not just that the framework is shifting but that context matters. It’s important to be mindful of all the dialogues at once; you can keep track of what’s going on by reading books and articles, listening to podcasts, and following blogs and Instagram posts.

We can employ our cultural humility practices in this conversation, focusing on introspection and co-learning. Rather than looking for the “right answer,” and then sticking fiercely to it, we can spend our energy on the journey of lifelong learning and leaning into the changing landscape and dynamics of our living language.


Resources

Liza Brusman, “Sex isn’t binary, and we should stop acting like it is,” Massive Science, University of Colorado, Boulder, June 14, 2019.

Devon Price, “‘Female Socialization’ is a Transphobic Myth,” Aug 2, 2021.

Rafael Langer-Osuna, Melanie Rowen, and Molly Stafford, “Anti-Trans and Non-Binary Legislation, Part 1: What NALP Members Should Know,” NALP Bulletin+, October 2021.


This article was submitted on behalf of the Task Force on Supporting Gender Non-Binary Individuals in the Legal Profession. Read Part 1 of the series.


Rafael Langer-Osuna (they/them/their) is Partner at Squire Patton Boggs.

Melanie Rowen (she/her/hers) is Associate Director of Public Interest Programs at the University of California Berkley School of Law.

Molly Stafford (she/her/hers) is Assistant Dean, CDO and External Relations at University of the Pacific McGeorge School of Law.

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