MUSIC - Marden Hill: Hijack

Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. I got a promotional mail recently from the conservative Hillsdale College in Hillsdale, Michigan, advertising their school and looking for donations. The very first line of the letter says, "If we're going to save America from the growing threats of socialism, transgenderism, and Marxism, there's only one way we can do it, education." I thought, okay, fine, a college that offers an education based on political conservatism. They're allowed. We're a politically diverse country. It's a private college. People can get educated in the context that they choose.

Then I thought about that opening sentence, and I thought, which one of these does not belong? Which one of the three things that they claim they're trying to save America from? Socialism, Marxism, and transgenderism. Now, socialism and Marxism, you can believe in them or not, okay, fine, but transgenderism? How you experience your own body as an ism, a belief system, a political philosophy? That's just hate speech to my eye. It's like saying we should save the country from left handed-ism, or blue eye-ism. The trans people I know didn't choose what gender they experienced themselves to be by way of competing isms like some audience member in a political debate. Here's a college that's fundraising off the idea that one of the three big threats to the country is a belief system that isn't a belief system.

Maybe they should be saying, "Our college helps make America safe for other ism." Labeling people who are different from the majority or different from you as threats to the social order. I had a similar thought. When I saw the news last week that the Nassau County Executive on Long Island, Bruce Blakeman, banned transgender girls and women from playing in school sports on any Nassau County athletic facilities. That's around a hundred ball fields, ice rinks, and other facilities. Blakeman said, "There's too much bullying going on of biological males trying to inject themselves in female sports. It's wrong and it's a form of bullying."

Now, maybe there's a question of how to deal with trans women athletes because people born as boys are bigger on average. There are men's and women's divisions of major sports because of that. Maybe that's a conversation among people of goodwill, but to call it bullying is just hate speech to my eye. A transgender woman or girl is just a transgender woman or girl who wants to play ball. Someone who experiences their own body as they experience it. They're not boys pretending to be girls so they can bully girls by playing field hockey, or softball, or running in a track meet. There are much easier ways that boys can bully girls.

In fact, county officials in Nassau County then said they don't even know of any examples, not one, of a transgender girl on a Nassau County team. Yet, Blakeman said he'd been thinking about issuing the ban for months. The county has lots of actual problems he can deal with, but he chose a non-problem to make a big announcement about. Now, I have a theory. It's about helping Republican candidates win elections in contested Long Island districts this year because this kind of hate speech actually sells right now to a certain percent of the population that's meaningful. That's just a theory.

Hillsdale College is saving America from an ism that isn't an ism. The Nassau County Executive is saving Long Island from an epidemic of bullying that they can't even cite one example of because transgender human beings have become political and religious targets of 2024 American politics. Hate speech, othering some of our neighbors, putting targets on their backs, masquerading as saving society from things that don't even exist. Well, who is being bullied are trans kids, some of them to death.

A case in Oklahoma shines a light on this matter. Sixteen-year-old Nex Benedict, who identified as non-binary, died after being beaten up by three older female students in a girls bathroom in Owasso High School in Oklahoma. Activists are pointing to Oklahoma's SB615, which prevents trans students from using bathrooms that align with their gender identity, as one culprit in the case. Another being far right activist Chaya Raichik, who's more known for running the account Libs of TikTok on X, which has amassed 2.9 million followers by ridiculing visible or outspoken LGBTQ people putting a target on their backs.

Let's talk about this with Alejandra Caraballo, clinical instructor at Harvard Law School's Cyber Law Clinic. Alejandra, thanks for coming on. Welcome back to WNYC.

Alejandra Caraballo: Thanks for having me.

Brian Lehrer: Is transgenderism a thing?

Alejandra Caraballo: No, it's absolutely not a thing. It's a term that's used to dehumanize trans people and reduce our existence to an ideology.

Brian Lehrer: Do people born boys who become trans girls or women, do they join sports teams so they can bully the other teams girls?

Alejandra Caraballo: Absolutely not. They're just playing for the same reasons anyone else is playing. For an opportunity, a chance to compete, an opportunity just to experience being on a team with other people and playing with their classmates. This particular executive order in Nassau County is so incredibly broad that it would apply to a girls chess team that was using a Nassau County facility. That's exactly the kinds of things we've seen. I think a lot of people tend to focus on more physical sports, such as basketball or softball or things like that, or swimming, but in reality, this can be incredibly broad.

We've seen attempts to ban trans women from fishing, from pool, or billiards as it's also called. What this really is, is it's not really about fairness in sports at all, it's really about excluding and otherizing trans people in general.

Brian Lehrer: For you at Harvard Law School, can you give us a legal analysis of, it's an executive order, what this executive order would actually permit or not?

Alejandra Caraballo: It's incredibly broad. It explicitly only applies to trans girls playing in sports, but since it applies to any county facility for any team that holds itself out as being for girls, like I said, it can apply to a team of five-year-old's playing t-ball at any county facility. It doesn't take into account anything beyond just gender identity, which would violate the Gender Expression Non Discrimination Act, which was passed in 2019 and signed into law.

Additionally, it violates the human rights law. It violates the Equal Protection Clause of the US Constitution. As you've mentioned, there's potential considerations things like needing a doctor's note or other things that we could implement as reasonable limitations, but this is not that. This is just a flat out ban. If a trans girl who has never gone through male puberty and has transitioned, has been living her life as trans since she was 4 or 5 years old, if she's 13 and wanting to compete on the swim team, they're saying, "Oh, well, she can compete on the boys team."

That's going to out her, that's going to cause humiliation and on top of that, because they've never had through any male puberty, they have none of the advantages that people will say they would have. Really, this is about just otherizing trans people and putting them out there to bully them and to really bring harm and concentrate it for political points.

Brian Lehrer: Listeners, anybody have a story or a question for Alejandra Caraballo, clinical instructor at the Harvard Law School Cyber Law Clinic, 212-433-WNYC. Call or text 212-433-9692. When this first came up last week, we had somebody text us a question about whether this might violate sex discrimination laws in that it only applies to trans girls playing on girls teams. It doesn't apply to trans boys playing on boys teams. Therefore, it treats the genders or even the two sexes in the traditional framing, differently in a way that would violate the Civil Rights Act. Do you have any take on that?

Alejandra Caraballo: Absolutely, there is a difference between the two. Now, they might claim it's about safety or fairness because the inherent assumption there is that it is one underlying misogyny that girls can never be as good as boys in anything, and so there almost certainly this would violate that, but I think in particular, because there are explicit gender identity protections in New York state law, there's more immediate violations that this executive order would violate.

I also just want to quickly bring up the enforcement of this is one of the most tricky aspects, particularly enforcement of this kind of executive order because you have to create this kind of gender bureaucracy to be able to actually enforce something like this. What we've seen in other states like Utah that have passed similar laws is that parents who get upset that their child is losing, oftentimes to a very gender non-conforming cis girl, that's a girl who's gender identity aligns with their sex assigned at birth, they will then facelessly accuse that girl of being trans.

In one situation in Utah, a father had to be physically removed because he was becoming belligerent and nearly violent. In another situation, a state official on one of the education boards there accused a girl of being trans on the basketball team because she was tall and was gender nonconforming, and it resulted in this girl getting death threats and so many threats that the school had to provide her security.

Ultimately it was false, but just even that kind of suspicion can create a hostility. Since trans youth are incredibly rare as you mentioned, they couldn't even cite a single example, the reality is that this is actually going to affect cis girls, the people they're claiming to protect more often than it will ever affect trans people because just of pure numbers. You're going to get false accusations and it's going to destroy people's lives, it's going to cause violence, it's going to cause threats, and so that's the part of this that people don't talk about.

Brian Lehrer: You're a law professor, you're not a sports coach or a sports writer, but is there somewhere in there a legitimate question of how to deal with trans women athletes? That's a subtler conversation that's worth having because people born as boys are bigger on average. I read the average height of an NBA player is 6'6″, a WNBA player, 6'1″. No woman has ever beat the first-place man in the New York marathon. You could go on. Is there some conversation that doesn't include all this hate that's real there?

Alejandra Caraballo: Absolutely. There's always room for reasonable conversation. These had been going on for years before this moral panic around trans people really became mainstream over the last few years. For well over two decades, the Olympics had allowed trans women to compete if they suppressed their hormones for one to two years and took feminizing hormones such as estrogen. There was constantly a look at the science at, if they suppress testosterone or have had gender-affirming surgery and they're on feminizing hormones for two or three years, how that affects their performance.

There's ways to look at it, and especially sport by sport, because certain sports, it may be more apparent than others. Then there's also the question of trans youth who've never gone through male puberty either because they went on puberty blockers and then went on feminizing hormones, and so they don't have those advantages because it's really hormones that really dictate a lot of the differences between girls and boys. It's a very nuanced conversation and one that we can have particularly about specific sports and leaving sports particularly, but you can have that conversation about balancing fairness with participation without creating these kinds of blanket bands that ostracize and push out trans girls entirely from participating in any sports at all.

Brian Lehrer: I was going to ask you next about Nex Benedict, the 16-year-old non-binary student in Oklahoma, who I mentioned in the intro, who died the morning after being beaten up by three girls in a high school bathroom earlier this month. We have several callers who want to bring up a tragic situation much closer to home here in New York. I'm going to take Jessamine in Brooklyn right now. Jessamine, you're on WNYC. Thank you for calling in.

Jessamine: Thank you, Brian. I was calling because I am a member of the Panel for Educational Policy and the parent of two trans students myself in the New York City public schools. Two days before spring break or the February break was set to begin, we learned of the horrific death by suicide of a trans student at my older child's high school, which is located in community school, District 2. I'm not sure if you're aware, but CEC too currently seats two about transphobes. There has been a lot of public outcry to remove these individuals, but the city has yet done nothing. To date, we're in this situation where we have active transphobes.

Brian Lehrer: Who appoints or elects those people?

Jessamine: Members of the CECs are elected by parents within a given school district. If you followed any education reporting from last year, we know that there was historic low turnout in the last CEC election cycle. It's widely understood that the CECs that are seated today are not necessarily representative of the constituencies that they represent.

Brian Lehrer: What makes somebody in that context, the transphobe, as you label them?

Jessamine: Their public comments denying the reality of transness, describing it as confusion rather than an essential nature of a person, a lived experience.

Brian Lehrer: Jessamine, thank you for your call. I think we have another Brooklyn parent calling about the same incident. Hi, you're on WNYC.

Speaker 4: Hello. Hi, how are you? I will do my best to keep it together like that last parent. I want to out of respect for privacy, keep my name-- I too am the father of trans kids and this environment-- My kid goes to the school where that tragedy occurred. This is a really loving environment. It's a really wonderful school, and it still happens.

Brian Lehrer: Was there something that was a bullying incident or policy, something at the school level that you think contributed to their decision to die by suicide? We lost that caller. I think he said, "Oh, he could say without losing it." Oh my God, Alejandra.

Alejandra Caraballo: This is just something that is just-- It is so difficult to hear these stories because this is what we know is happening across the United States. I think it's particularly telling the first parent who brought up the CEC and coming from the top, it's adults that are failing these kids. It's particularly adults in positions of power who are deciding to utilize hatred against trans people in order to score political points, and the kids that are suffering are the trans youth themselves, who oftentimes don't have the kinds of support that we would want every child to have.

It's just so incredibly difficult to hear stories like that. I've heard similar of others in other states such as Montana during legislative sessions. Even talking about these kinds of policies and enacting these kinds of policies, it can exact tremendous psychological harm. I also just want to say to any of the trans youth listening out there, there are so many people fighting for you and trying to make the world a better kinder place, and don't lose hope.

There's plenty of resources such as The Trevor Project that you can reach out to if you're feeling like you are having a really hard time. I hope we can give up maybe the number for The Trevor Project or similar resources because it's an incredibly difficult time and we need to be able to support all the vulnerable children who are just going through it right now.

Brian Lehrer: Do you have that number at hand for The Trevor Project?

Alejandra Caraballo: I don't have it off the top of my head.

Brian Lehrer: We're looking it up. That's all right. We're looking it up. Listeners, if that's something you think you might want to take down, we'll give you a couple of minutes as we find it ourselves, and we'll give you the number as Alejandra suggested for The Trevor Project. There are plenty of people out there supporting your life, even though there are these haters out there doing some of the things we've been documenting. Do you want to say anything about the Oklahoma case, the 16-year-old non-binary student named Nex Benedict, who was apparently beaten to death in a high school bathroom?

Alejandra Caraballo: Yes. The facts have become quite complex as the police have released more details, particularly around some of the surveillance footage in the 911 call. What we do know is that, in the days leading up, they were an in-school suspension for vaping. They had never met these three girls that they ultimately were beaten by. Throughout that time, Nex had been experiencing tremendous amounts of bullying and particularly was getting bullied by some of these girls in school suspension.

They went to the bathroom, Nex poured some water on them after they made some comments directed towards them, and they proceeded to beat Nex. From my understanding, Nex's head was bashed into the ground. They were then taken to the school principal's office where in some of the surveillance footage they looked like they were wobbling a bit as they were walking. The school failed to notify police. The mother came to pick Nex up and take them to the hospital.

There's some footage from the bodycam of the police officer that did an interview at the hospital. While Nex seemed somewhat lucid in talking the very next day, they collapsed at home and unfortunately passed away. Once they reached the hospital, they were declared dead. During that 911 call, the mother was describing them as having their hands postured up and almost being stiff as a board. We don't know yet a cause of death. The police have speculated based on incomplete information that it was not related to trauma, but until we have a full report by the medical examiner, we don't know for sure. Healthy 16-year-olds just don't randomly die especially a day after sustaining a head trauma. This is one of the things where, I think in particular people tend to focus on the bullying by the girls.

In Oklahoma, this is coming from the top. Last year, 40 anti-LGBTQ bills were introduced in Oklahoma. Several passing, banning gender-affirming care, banning the use of preferred pronouns by trans students in schools, forced outing, don't say gay style bills, a ban on using the bathroom that aligns with your gender identity. Just a whole suite of bills that passed last year. This year, they're still not done. There's 30 more anti-LGBTQ bills that have passed.

We've seen this atmosphere of hate that has just been targeted towards trans youth and in particular-- The superintendent of schools who is in charge of overseeing all the schools in Oklahoma, Ryan Walters just last summer, put out a video making it as though trans youth are a danger in schools and they're a danger to other girls. That kind of hostility really will trickle down. Kids see this. They see adults picking on a particular community, and they think it's okay to follow that example.

I think really what this is, this is a failure of the adults, particularly at the school, at the school board level, at the state level, among all the state legislators. Even just in the wake of this death, State Senator Tom Woods in Oklahoma was asked about Nex Benedict's death. He said, "We don't want this filth in our schools." Referring to LGBTQ people. Not in schools, in our state. It's fully masked off there. It's just so directed and targeted. It's no wonder that kids are learning this kind of hatred because this kind of hate has to be taught. People aren't born with it. I think it's really a story of just how much the adults are failing the youth there in Oklahoma.

Brian Lehrer: One more call, and then we're out of time. Allegra in Westchester, you're on WNYC. Hello, Allegra.

Allegra: Hi. can you hear me?

Brian Lehrer: Yes. We got you.

Allegra: Hi. I'm a relatively young, queer adult. The point that I just wanted to make about this is I think there's so much focus in the language regarding this topic about the perceived differences in levels of competitive abilities between people who are the "Assigned female at birth versus assigned male at birth." That language almost always is centered around professional athletes and athletic endeavors at the professional level.

I think it's just important to realize that so many people who partake in athletic endeavors, like in this country, probably 99% of them will never reach a professional level. For a lot of kids playing on sports teams, the competitive outcome is not necessarily the point. The point is so much more centered around teamwork and communication and friendship and just building sense of community. I'm sorry I'm getting very emotional.

Brian Lehrer: That's all right. Take your time.

Allegra: As a non-binary person who grew up playing competitive sports, I know how important having those avenues of connection were to me. I made lifelong friends, and I think I accumulated a number of skills that I'll keep with me for the remainder of my life. I just wanted to make that point as well, that this is just an avenue of social connection that we are ridding people, many whom are already feeling lonely and isolated and out of place especially young adults, due to the nature of their identities and the discrimination that they face. I just wanted to emphasize that is that I think this is such an important avenue and vehicle for social connection for me growing up. It just devastates me from this perspective also, that that is not something that's being made available to a number of kids and also young adults around the country today.

Brian Lehrer: Allegra, thank you very much. Thank you very, very much. I don't think we can top that. I think we're going to have to end it here, which we have to anyway, more or less because of the clock. I'll just read one more text message about the Nassau County executive banning trans girls from playing on Nassau County sports facilities. Listener writes, "This issue makes my blood boil. I'm a parent of a trans woman, and I know of no person who has transitioned because they want to compete in sports. This is the most ridiculous false narrative."

He's calling it bullying, and this'll be the last word, then I'll give out that contact information for The Trevor Project. Alejandra, that's the part that's so over the top that I wonder if it's even a winning issue or one that's going to backfire on him in Nassau County politics, saying that they're joining sports teams as trans girls to bully people.

Alejandra Caraballo: The thing is that we have examples around the country where people have run explicitly on this anti-trans platform, and it's a losing one. The governor of Kentucky just won re-election despite vetoing all of these bans on trans youth and standing up for trans youth. State senate seats across the country in 2022. There was the governor's race in Michigan and Arizona, where both of the governors there were attacked for supporting trans youth and the candidates bringing those attacks lost. While this may be very good for motivating I think the more extreme conservative base, it doesn't move the middle, it doesn't really change any votes. This is not an election winner. It may bring attention, it may get headlines, but it doesn't win elections. I think this is one of those things that may backfire spectacularly here in Nassau County.

Brian Lehrer: Folks, if you're looking for support as a trans or non-binary person, you can go to thetrevorproject.org, or call 866-488-7386. We thank Alejandra Caraballo from the Harvard Law School's Cyberlaw Clinic for being our guest. Thank you so much.

Alejandra Caraballo: Thank you for having me.

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