The Dual State of Trans Existence
In the middle of World War II, the jurist Ernst Fraenkel established a political pathology he termed the "dual state" to describe the legal structure of fascist states. Fraenkel argued that within the same national borders, two distinct legal and political orders could operate simultaneously. The first, the "normative state," is the one we recognize: a system of laws, courts, and procedures that applies to the general populace, offering at least the semblance of predictability and due process. The second, the "prerogative state," is a shadow apparatus of arbitrary power, unburdened by legal restraint, that can be deployed against those deemed a threat to the established order. Fraenkel's theory is a terrifyingly prescient lens through which to view the contemporary political and media landscape for transgender people in the United Kingdom and the United States.
We are living in a dual state of trans existence, a carefully constructed hypocrisy where the rights and protections of the normative state are selectively applied, while the arbitrary and violent power of the prerogative state is brought to bear on one of the most marginalized communities in our society. This is not a system of equal application of the law, but a carefully managed campaign of erasure, cloaked in the language of rights and freedoms.
The most potent weapon in this campaign is the cynical manipulation of "free speech." Consider the rhetoric of figures like Graham Linehan, who has openly called for assaulting trans people in bathrooms, or Michael Knowles, who has repeatedly called for the eradication of trans people. These are not abstract thought experiments; they are direct incitements to violence and eliminationist rhetoric. Yet, within the framework of our supposed normative state, they are defended by a chorus of politicians and media commentators as mere expressions of opinion, as the exercise of a sacred right to free speech. The threats are minimized, the violent implications downplayed, and any attempt to hold these individuals accountable is met with accusations of "cancel culture" and the erosion of civil liberties. Trans people, in this formulation, are not the victims of these attacks, but the perpetrators of a campaign to silence their critics. They are portrayed as a "rabid mob of violent online leftists," a narrative that flips reality on its head, painting the targets of eliminationist rhetoric as the true threat, a form of mirror propaganda.
This is where the motte-and-bailey fallacy comes into play, a rhetorical strategy that allows for the advancement of an indefensible position by retreating to a more defensible one when challenged. The "bailey" is the indefensible, controversial, and deeply violent position: that trans people should be eradicated from public life, that they should be met with physical violence. The "motte" is the easily defensible high ground: "we are simply defending free speech." When confronted with the horrific implications of their "bailey," the purveyors of anti-trans hate retreat to the "motte," claiming they are merely brave truth-tellers standing up for the principle of open debate. They are not arguing for the eradication of a people, they claim, but for the freedom to "just ask questions."
But this defense of free speech is a lie, a cynical and transparently false front for the oppressive machinations of the prerogative state. For at the very same time that these actors are defending their right to incite violence, they are using the full force of the state to silence and erase transgender people. There is no defense of free speech in the wave of legislation sweeping across the United States, banning books with transgender characters from school libraries, criminalizing drag performances, and forbidding the use of correct pronouns in schools. These are not the actions of a state committed to the free exchange of ideas. This is the prerogative state in action, a raw and undisguised exercise of power to eliminate a disfavored minority from the public sphere.
The hypocrisy is breathtaking. The same politicians who will defend a commentator's "right" to call for trans people to be violently assaulted in bathrooms will simultaneously pass laws that make it illegal for a teacher to even acknowledge the existence of transgender people in a classroom. The same media outlets that will give a platform to those who call for violence against trans people will also run scare stories about the "dangers" of a transgender person reading a book to children in a library.
This is not a debate. It is a targeted campaign of persecution, and the language of "free speech" is merely the pretext for the operations of the prerogative state. The goal is not to win an argument, but to eliminate the opposing side from the conversation entirely, to make their very existence unspeakable, invisible, and ultimately, impossible. The dual state that Fraenkel described was not a historical anomaly, but a permanent temptation for any society that wishes to maintain the fiction of a normative order while simultaneously waging a campaign of annihilation against a targeted few. For transgender people in the UK and the US, that chilling reality is not a matter of historical record, but of daily life.
