At SSRN, June and July were Pride Month and Law Month respectively. We decided to combine these two topics, and so we reached out to Professor Dara E. Purvis of Penn State University to talk about her work in law and how it relates to pride topics. Dara is a scholar of family law, feminist legal theory, masculinities, and sexuality, gender identity, and the law. We spoke to her about transgender issues in schools, masculinity in politics and the role of preprints in law. 

Q: You’ve written a lot recently about transgender issues, and I was struck by a comment you made in your paper about Trump, Gender Rebels and Masculinities from 2019, that transgender issues are partly controversial to people because they explode the gender binary, especially rigid ideas of masculinity. It seems that although the number of people directly affected by transgender issues is a very small number, it has sparked this tremendous national debate, certainly in the US but here in the UK as well. Why do you think so many people seem to find these issues threatening? 

DP: I do think it gets at broader questions. In my work I’m particularly interested in gender stereotypes. For example, some of my work that isn’t about transgender people directly is about care-giving fathers and non-traditional families, and there are lots of examples like that of ways that we see different versions of gender in the world around us. I think that trans people present the clearest concept of that idea that most people have seen. I think that the average person who thinks, “Oh, my daughter might be a tomboy and really enjoy sports”, doesn’t think about what that means for stereotypes of a woman and man, or a girl and boy, or femininity and masculinity as much as with trans people. Being a tomboy does kind of work against gender stereotypes in a way, but in a much more familiar way. I think this is a backlash to realising that trans people exist, that trans children exist and need support. I think that it really confronts people with the idea that the assumptions that we make about gender may just be assumptions, and that there may be more possibilities for what it means to be a man, to be a woman, to be a non-binary person. Sometimes people feel threatened by that. Sometimes people resist that. Sometimes people don’t see that in themselves, and so they find it more difficult to understand how other people could be having a different experience in the world.

Q: It seems that we’ve come quite a long way in a short space of time and maybe that’s also part of the reason why this is such a big debate. Do you think people have to take some time to catch up?

DP: Yes, I think there has been so much movement on LGBTQ+ issues generally, driven in large part by the courage of LGBTQ+ people to come out. Suddenly tonnes of people realised: I have a family member who’s gay. I have a friend who I grew up with who’s lesbian. People really had it brought home to them that these are people that I know. And again, I think that’s brave. I don’t think we had a vocabulary for what it was for people to question their gender identity in the past. And because the numbers of trans people are smaller, I think it’s easier for somebody to just live their life without being close, necessarily, to a trans person, and without realising what this means on a human level. The way that it really felt like a sea of change in attitude towards gay people, at least in America, and there was a significant backlash. I’m really struck by how many arguments from the 1990s are suddenly back in the mix both in politics and society. I think it is a symptom of progress, of changing ideas and reactions to that. 

Q: I wanted to ask about the concept of ‘the heckler’s veto’ and how that’s involved in the debate about transgender issues in schools. Your paper describes how the reactions of other school children, and the parents of school children influence the debate on transgender issues. We’ve also heard a lot of cases surrounding books that have been banned because a small number of parents deem them to be inappropriate for their children. Could you talk a bit more about how a small number of people are able to tilt the debate so much?

DP: I am looking at protection of student speech within schools under American law, so it’s a pretty specific legal doctrine. But there’s obviously a conflict between ideas. Do we let students express anything they want? Do we let them argue among themselves as they begin to develop political and just ideas about the world? And how do we do that while still teaching them? You obviously can’t just allow open debate on the politics of the day when you’re trying to keep teach kids algebra. There’s this balance of: we want to respect the ability of children to express thoughts, but we also have educational work to do.

And so, there is this case from the 1970s, Tinker v. Des Moines School District. There were children who were protesting the Vietnam War by wearing black arm bands and they got into trouble with their school. The kids challenged the disciplinary action. It got all the way to the Supreme Court, and the Court said, ‘Well, we can balance this by ruling that we want to respect the students and we want the school to allow students speech as much as possible, unless it’s disrupting the educational work of the school, and unless it’s invading the rights of all the students” (although that second part has got much less attention). So, lawyers in America think of Tinker v Des Moines to say: you can try to respect student speech unless it becomes disruptive. A natural question is, what does disruptive mean? Disruptive means the reaction of the other students. If someone says something that’s off topic in a classroom, but no one really reacts to it, then the lesson just progresses and that hasn’t harmed the educational work of the school. But if someone says something and the other students get upset, and some or all of the students start to react in a negative way, that derails a lesson. Now the school can say, ‘Well, it was a material disruption, a substantial disruption to class.’ So, it’s the students – the other children in the classroom – who have the ability to react and who in their response to speech can justify the school restricting the original students’ speech. It gives significant power to the listeners of the speech. 

One of the things I’m most troubled by is in states like Florida, where schools are explicitly trying to send messages about LGBTQ+ people being unacceptable and talking about LGBTQ+ people as somehow inappropriate for children. We have the power to tell children what is strange enough or inappropriate enough for them to react to.  What my paper is saying is, this isn’t happening in a vacuum. Children might react because their teacher has indicated something about gender. Maybe they’re reacting this way because their entire school day is structured into boys and girls, and so someone who challenges that is seen as abnormal. Given that context, I don’t think it’s appropriate for the school to be able to say, “Well, you can’t do that because your classmates might react in a disruptive way.”

Q: It seems that it makes it incredibly difficult to apply that rule across the whole country, because it works on a case-by-case basis. It does just depend on the reaction. Is that how you see it?

DP: Absolutely. It’s not a bright line rule where you can say here’s a statement you can’t say in any classroom. It’s going to be different based on the community norms and the children in the classroom. Obviously, we have a wide spectrum of opinions and perspectives on the world, and throughout the country. And it just means if the school can say, ‘Well, things got disruptive, some kids reacted,’ then that’s enough, even if it’s a statement that no one would raise an eyebrow at in another part of the country. So, it becomes difficult to predict, is very dependent on where people are, how they’re being raised, what other messages they get from other places and people. The state might be restricting speech based on other beliefs or messages in the community around them. Can someone be out at school? Can a child be open about their gender identity at school? It’s going to depend on what school they go to and where they live.

Q: In your paper from February on Transgender Students and the First Amendment you talk about American public schools as a significant venue in which matters of free speech are debated. Part of that seems to turn on whether we should see schools as places where we come together around shared ideas, or as places where we learn to disagree about the ideas we don’t share. For the benefit of our readers who won’t be as close to this debate in North American public schools, should we think about public schools as theatres in which much of this drama about free speech is being played out?

DP: I have gone back and forth on this because there’s this idea in America that if we just let people express themselves freely, the best ideas will win out. I think a lot of people have questioned that idea more in recent years, because we are seeing so much misinformation. The way that people are dividing up by information that they hear, it doesn’t feel like a marketplace anymore. It feels more like people are going into silos. I think I and a lot of other people are questioning if this approach is working. That’s one of the reasons that I think it’s important to try to allow some kind of expression and debate in schools. Obviously, the solution won’t be to go to school and debate your classmates about politics for eight hours. You still have to learn math! But along with a sort of basic curriculum that you learn, the idea of trying to allow some kind of marketplace of ideas in public schools is that this is where we teach you to interact with ideas that you may or may not agree with, to respond to them in respectful ways, even if you disagree. To have a critical perspective about what you’re learning. In contrast, there’s this idea that no, we need to teach one way of thinking and one perspective. This is the information we want to give students. I think that’s the wrong approach. I think that American education has always tried to balance these two concepts of: there’s information that we want to give you, but we also want to teach you how to react to new information. How do you decide what you agree with? How do you decide whether something is reliable? How do you react to other arguments and other perspectives? That is education and that’s how you create an informed and capable citizenry that can then go out into the world and watch political speeches or watch political debates or read the newspaper with a bunch of different facts about a bunch of different things and filter that through some kind of lens of: how do I judge this information? How do I take this information to inform or challenge or support positions that I already have? If we don’t do that in schools, how are we going to expect adults to be able to do that? 

Q: In your paper on Trump and masculinity from 2019 you write about how we can view the Trump presidency through the lens of masculinity theory and how that makes his stance on a lot of policies fall into place. In the run up to the Presidential election next year, how much of an actor is the idea of traditional masculinity in the race between Trump and Biden, if indeed it is between Trump and Biden, with Trump playing the macho man and Biden accused of being old and maybe a bit weak?

DP: Absolutely. There are many examples of this. A recent example doesn’t even have to do with Trump, it has to do with Robert F. Kennedy Jr. who is challenging Biden in the Democratic primary. There was a brief video posted of him with his shirt off, doing bench presses, weight training, and there was this reaction to this of is the manliest presidential candidate, look at how manly this guy is compared to Biden, because we haven’t seen pictures of Biden weightlifting. By contrast, there’s been a lot of controversy about Hunter Biden, President Biden’s son, and there have been some emails and even voicemails leaked that were private between them. There’s one voicemail in particular when Hunter Biden was struggling with drug addiction, where President Biden leaves him a voicemail saying something like: “I want to support you in getting help. I love you no matter what. I love you. I’m your father. We need to get you help.” I think that should be considered manly – love, nurturing, unconditional support for a child. There’s emotion in President Biden’s voice, this is clearly something central, something incredibly important to him, and you hear the love in his voice. But we don’t see that as traditionally masculine. We don’t see emotional expressions from men as masculine. And I think we should. 

And absolutely we’re going to continue to have this problem, whoever the candidate is. I suspect it will be Trump. And I think that some Trump supporters, particularly, buy into this traditional idea of what masculinity is. It’s winning. It’s being the richest guy in the room. It’s bragging about sexual assault. It’s not respecting the feelings of people around you because you’re the most important person in the room. Those are seen as masculine qualities. Those are reasons to support him for some people. And I think we certainly saw a lot of that when it was Trump running against a woman, when it was Hillary Clinton versus Trump because you did see a lot more explicitly gendered language. But you also see it in the contrast of Biden versus Trump. I think Biden is characterized as physically weaker than he is even, as mentally weaker than he is. 

I think we see this anytime that a woman of either party tries to seek higher office. You see a lot of people say people on both sides of the political divide say, well, I would support a woman for President, Senate or whatever she wants to run for – but not this woman. Somehow, we never find the woman who actually can balance being a leader, being ambitious with not being a bitch. 

Q: On that point, I’m interested to know how you transfer that to Kamala Harris and the work that she’s doing. There’s a sense that she’s not very popular in the US, and I wonder where you think that comes from. 

DP: She is facing an even more difficult potential reaction from people because she has both sexism and racism working against her. People criticize her as incompetent in a way that I don’t think you see white men criticized. Certainly not someone with her accomplishments. And I really think it’s easier to characterize people according to stereotypes, harmful, racist, sexist stereotypes. It’s easy to just sort of fall into those channels. And I think Kamala Harris obviously challenges those channels in a whole lot of ways – she’s a woman who took on a position that requires a lot of ambition and being assertive, being a lawyer, being a prosecutor before she went into politics. This really cuts against stereotypes of femininity. You know, being a brilliant verbal speaker, arguer and mastering legal doctrine and then going into the Senate and taking all these high-profile roles is also very against stereotypes of non-White people. We just saw the Supreme Court at the end of its most recent term strike down affirmative action policies, for the most part, at Universities, and the immediate response from a large segment of society was, well, obviously these people didn’t deserve to be there. There’s just an immediate current and swell of questioning the competence and intelligence of non-White people. And so, for her as a non-white woman in roles that really demonstrate her intelligence, there’s a real reaction to that. You get a backlash to something that challenges unspoken or sometimes spoken assumptions. I think there’s a real current of ‘We can’t admit that this woman is smart, we can’t admit that this woman is competent, and so we need to insult her. We need to minimize the work that she does. We need to side-line her in a way.’

Q: I want to ask about the role of preprints in your world, given how feverish legal debates have become around issues such as transgenderism. Do preprints help in getting different sides of the argument out there quickly and make them readily available to any who want to read them?

DP: Yes. So, the American law reviews tends to have, and I guess all academic publications tend to have, a long timeline. But particularly if you’re someone like me who writes about very current political and legal issues – I think my article, Transgender Students and the First Amendment is going to come out in print next year, I’m not sure exactly what month yet, and I’m excited for it to come out and to have it in print – but it is going to be a long lead time when there are state legislative actions and court decisions and things happening as it progresses. So, it’s really valuable for me to be able to get this out there, because I hope that this is useful to practitioners. 

I want to write for the interest of other legal academics, but I hope that some lawyers see it, I hope that potentially some judges see it and I hope that this is of use to people in practice. I am currently at Penn State Law, and I will be for the next year. But I’m going to be joining the faculty at Temple Law next summer, and the Dean at Temple, Rachel Rebouche, co-wrote an incredibly important article on abortion with David Cohen and Greer Donley, two other law professors, before Dobbs came out. And it was cited and had impact nationally before it came out, in preprint, and because we could all access it online and because it was incredibly important and timely and helpful to talk about what was going to happen in Dobbs. Publishing, obviously, is not an afterthought. It’s still important. But the impact that that paper had was because we could get it on SSRN, and everyone could just email a quick link and it was out. 

Here are Dara Purvis’ most recent papers, all available on SSRN:

1. Transgender Students and the First Amendment
2. Frozen Embryos, Male Consent, and Masculinities
3. Gender Stereotypes and Gender Identity in Public Schools
4. Trump, Gender Rebels, and Masculinities
5. Police Sexual Violence: Police Brutality, #MeToo, and Masculinities

You can check out her SSRN author profile here.