Podcast Summary: On the Media

Episode: Trans People are Facing a 'Dual State' in Trump's America

Air Date: March 25, 2026
Host: Michael (Micah) Loewinger (spelling varies; here, likely “Michael Leminger”), WNYC Studios
Guest: Alejandra Caraballo, civil rights attorney, Harvard Law Cyber Law Clinic instructor

Overview

This episode explores the mounting legal assaults on transgender rights across various U.S. states and examines the concept of the "dual state"—a framework coined by legal scholar Ernst Fraenkel to analyze government systems where a targeted minority is subject to arbitrary state violence and injustice. Through in-depth discussion with civil rights attorney Alejandra Caraballo, the episode details how recent and proposed laws in places like Idaho, Kansas, Tennessee, West Virginia, and Texas are stripping away rights and normalcy for trans people. The hosts and Caraballo draw comparisons to both historical civil rights regressions and rising authoritarian tactics, examining media narratives, legal precedents, and larger social implications.

Key Discussion Points & Insights

1. Wave of Anti-Trans Legislation

• Idaho bill: Would criminalize trans people using public bathrooms aligned with their gender identity; first offense could result in a year in prison. [00:08]
• Kansas law: Invalidation of trans Kansans’ driver’s licenses if their gender marker is updated; “bathroom bounty” provision allows private lawsuits ($1000) against suspected trans people in public restrooms. [01:06]
• Tennessee House Bill 754: Requires clinics to perform detransition procedures, report procedures to the Department of Health, and enter data in a state database. [01:12]
• West Virginia: Federal court upholds ban on Medicaid coverage for gender-affirming surgery, citing recent Supreme Court precedent (U.S. v. Scarmetti). [01:29]

2. The "Dual State" Framework

• Normative vs. Prerogative State:

  • The normative state represents ordinary, lawful government interactions (taxes, regular courts).
  • The prerogative state acts with arbitrary power against a minority; normal legal protection ceases to apply.
  • Fraenkel developed this concept as a lawyer in Weimar Germany, observing the process by which Jewish citizens and other minorities were systematically stripped of rights prior to the Holocaust—serving as a historical parallel (with caveats) to current U.S. legal trends against trans people. [02:07, 02:46]

  Quote:

  “The normative state is basically everything that you run into every day…[but] there's the prerogative state, which acts with an arbitrary violence against a targeted minority group. That group cannot expect any sort of fair or consistent treatment by the state.”
  — Alejandra Caraballo [02:10]

3. Medical Care & Parental Rights Double Standard

• Dual standards in health:
  • The same authorities that deregulate or champion parental choice for issues like vaccines restrict or outlaw parental choice for gender-affirming care for trans youth. [04:10]
  • Quote:

    “They claim on one hand, especially with the right around vaccines, we want to ensure that parents have the rights to choose medical treatments for their children…But when it comes to gender affirming care, they say, well, parents don't have that right anymore.”
    — Alejandra Caraballo [04:10]

• Supreme Court evasiveness:
  • Punted on parental rights to seek care in Scarmetti; but intervened to enforce parental rights against protections for trans students in CA. [05:11]
  • Quote:

    “The Supreme Court going above and beyond to protect the rights of one set of parents and then completely ignoring the rights of another set of parents…”
    — Alejandra Caraballo [06:00]

4. Practical Harms: Licenses and Restrooms

• Everyday exclusion:

  • Bans on bathroom use keep trans people from full societal participation; using the bathroom of one’s sex assigned at birth often poses danger or humiliation. [08:04]
  • License invalidation means risk of arrest, inability to drive, and being “outed” at basic checkpoints (e.g., buying beer). [09:16]
  • Even moving out of state is impeded, as license suspension follows. [10:00]

  Quote:

  “If you can't use the bathroom, you can't participate in society…For trans women, if you go and use the men's restroom, that puts you at extreme risk…Trans men are really in a bind…deep voice, beards, look just like any other man. And they're being told they have to use the women's bathroom.”
  — Alejandra Caraballo [08:04]

5. List-Making and Targeting

• Compilation of lists:

  • Kansas, Texas, Indiana compiling names of people who have updated license gender markers; potential future uses include employment bans (e.g., teaching), voting restrictions, or more. [10:28–11:11]
  • Example: In Kansas, even a person who only changed their name (not gender marker) was flagged and lost their license. [12:13]
  • These lists are legal unless used discriminatorily, but the fear is of impending or covert discrimination. [12:51]
  • Supreme Court signals it may not view “transness” as immutable, undermining protected class status (compared to religious freedom, which is protected despite being mutable). [13:27]

  Quote:

  “Pretty much every aspect of this is trying to strip any semblance of normality from a trans person’s life.”
  — Alejandra Caraballo [11:11]

6. Surveillance of Medical Care

• Data collection/intimidation:

  • State attorney generals (e.g., Tennessee) subpoena entire patient records from hospitals offering gender-affirming care, often without resistance from the institutions. [14:26]
  • DOJ has issued numerous subpoenas to gender-affirming telehealth providers, allegedly to investigate fraudulent billing but widely seen as intimidation. [16:02]
  • These actions chill access to care, reduce provider willingness, and inflict fear on patients.

  Quote:

  “This is part of the intimidation tactic…to try and force providers to stop providing gender affirming care, particularly to trans youth.”
  — Alejandra Caraballo [16:02]

7. Far-Right Rhetoric: “Eradication” of Transgenderism

• From words to lethal climate:

  • CPAC speaker Michael Knowles declared “we must eradicate transgenderism from society” (a recurring talking point for far-right influencers), which is echoed and amplified on social media by figures like Chris Rufo. [19:28]
  • The distinction between “eradicating transgenderism” vs. “trans people” is called a disingenuous smokescreen. [19:43]
  • The suicide crisis among trans youth is exploited and mocked online, with attacks and memes meant to further despair and exclusion. [20:30]

  Quote:

  “You can't coerce people into not being trans. And you can't kill ideologies. You can't kill ideas…The only thing you can do is kill people.”
  — Alejandra Caraballo [19:43]

8. Historical Parallels: Civil Rights, Reconstruction, and Regression

• The current rollback is compared to the post-Reconstruction era, where rights won were systematically erased. [23:02]

• These attacks are described as not merely backlash, but a reversal of victories—hard-fought, often quiet wins (such as changing gender markers on documents) now revoked. [21:52]

  Quote:

  “Reconstruction is probably the closest I can think of where a group who had previously been able to secure substantial civil rights protections is systematically having them erased.”
  — Alejandra Caraballo [23:07]

9. Media and Far-Right Framing: "Empathy as Weakness"

• Elon Musk and others promote the idea that empathy ("suicidal empathy") is leading to Western decline; Caraballo counters that it is actually a lack of empathy causing harm. [23:31–24:08]

Selected Notable Quotes & Moments (with Timestamps)

• [02:10] Alejandra Caraballo on Fraenkel’s dual state:
  “The normative state is basically everything that you run into every day... there’s the prerogative state, which acts with an arbitrary violence against a targeted minority group.”

• [04:10] On medical care double standards:
  “They claim on one hand, especially with the right around vaccines, we want to ensure that parents have the rights to choose medical treatments for their children. ...But when it comes to gender affirming care, they say, well, parents don’t have that right anymore.”

• [08:04] On bans isolating people from daily life:
  “If you can’t use the bathroom, you can’t participate in society…That’s exactly what this law requires.”

• [10:28–11:11] On government lists:
  “Governments compiling lists of minority groups is never a great sign.”

• [13:27] On the Supreme Court and protected class status:
  “They view being trans essentially as a choice...they don’t believe that it meets the requirements for protected class status.”

• [16:02] On DOJ medical subpoenas:
  “This is part of the intimidation tactic...to try and force providers to stop providing gender affirming care, particularly to trans youth.”

• [19:43] On far-right “eradication” language:
  “You can’t coerce people into not being trans. And you can’t kill ideologies. You can’t kill ideas. The only thing you can do is kill people.”

• [20:30] On anti-trans suicide memes:
  “It’s very clear they want to drive the factors that cause trans people to be suicidal. They don’t have to do it themselves. They can just make everything so bad that they hope that trans people do it themselves.”

• [23:07] On historical parallels:
  “Reconstruction is probably the closest I can think of where a group...is systematically having [civil rights protections] erased.”

• [24:08] On empathy:
  “It’s the lack of empathy, it’s the lack of compassion for our fellow humans that is causing so much of the problems in our world.”

Important Segment Timestamps

• 00:08: Idaho, Kansas, Tennessee, West Virginia – legislative highlights
• 02:04: Introduction of “dual state” concept
• 04:10: Medical care and parental rights hypocrisy
• 08:04–09:50: Impact of driver's license/bathroom law for trans people
• 10:28–12:13: State compilation of lists of trans people
• 14:26–18:49: Subpoenas, medical surveillance, and provider intimidation
• 19:28–21:27: “Eradication” rhetoric and online anti-trans violence
• 21:52–23:07: Civil rights rollbacks and historical analogies
• 23:31–24:08: Far-right "anti-empathy" messaging

Conclusion

This episode offers a sobering, historically grounded examination of how anti-trans laws and rhetoric in several U.S. states fit into a broader pattern of legal, administrative, and social regression. Through the lens of Fraenkel's "dual state" and informed by Caraballo’s legal expertise, it details both the macro and micro harms—to rights, safety, and societal structures—facing trans Americans, and highlights the urgent media, legal, and ethical questions raised by the current political moment.