More than 500 anti-transgender bills were filed at both the state and federal levels in 2023. While most of them target transgender youth and their families, others place limits on the entire transgender community’s access to public life.
The bills include bans on medical care and insurance coverage, participation in sports, using bathrooms, as well as measures that update gender markers on government-issued identification and require teachers and counselors to out transgender students. There have also been bans on performing or dressing in drag so broad that they will arguably deter transgender people from going out in public altogether.
Many bills even ban states from recognizing transgender people as a class—a clear attempt to reduce them to rational basis scrutiny or below in court cases. This means that virtually any excuse the government can come up with is sufficient to legally discriminate against transgender people and overcome the protections afforded by the Equal Protection Clause of the Fourteenth Amendment.
The risk spectrum: Red states have the worst risk of passing anti-trans legislation within the next two years. Pink states are at high risk, pale pink states at moderate risk, dark blue at low risk, and pale blue states have the strongest protections for trans residents. Source: Erin in the Morning (www.erininthemorning.com/p/april-anti-trans-legislative-risk)
The number of anti-trans bills has surged compared with past years. There were only twenty-six transphobic bills in 2018, but 174 in 2022. This is not a coincidence. Rather, it is a coordinated campaign by religious conservatives and Republican legislators to turn transgender people into a wedge issue for the 2024 election, in much the same way that same-sex marriage was a wedge issue in 2004. This strategy has been in the works for nearly a decade.
In 2014, religious conservatives realized they were losing the battle over same-sex marriage and looked for a new target to attack. They picked the Houston Equal Rights Ordinance (HERO), a newly passed anti-discrimination law, and their fight against it became a template for creating a new, successful wedge issue. They rallied the base against transgender people in “women’s spaces” and HERO was defeated in 2015. Rightwing legal groups such as the Alliance Defending Freedom and the Heritage Foundation helped fund fake feminist organizations, such as the Women’s Liberation Front (WoLF), to lend a veneer of legitimacy to their claims of representing women, lesbians, and feminists.
In 2016, North Carolina legislators passed a law to prohibit transgender people from using bathrooms that aligned with their gender identity. This sparked a national outcry and resulted in boycotts and other corporate actions that would have cost the state an estimated $3.76 billion in lost revenue. Republican Governor Pat McCrory later attributed his loss in the 2016 election to the disastrous rollout of this law. Its failure made conservatives step back and reassess how best to target the transgender community for political gain.
At the Family Research Council’s 2017 Values Voter Summit, Meg Kilgannon of Concerned Parents and Educators of Fairfax County, Virginia, laid out a strategy for attacking LGBTQ+ rights by going after transgender people first: “The LGBT alliance is actually fragile, and the trans activists need the gay rights movement to help legitimize them,” Kilgannon said. “Gender identity on its own is just a bridge too far. If we separate the ‘T’ from the alphabet soup, we’ll have more success.” Kilgannon advised conservatives to do three things: Target health care for children first; avoid religious arguments; and avoid name-calling transgender people.
Also in 2017, then President Donald Trump announced via Twitter plans to ban transgender people from serving in the military, which he followed through on two years later. (President Joe Biden overturned the ban shortly after taking office, in January 2021.)
In 2019, the first bans on health care for trans youth popped up. Recently leaked emails detailed how religiously motivated conservative legislators worked with the Alliance Defending Freedom, WoLF, the Heritage Foundation, disgruntled “ex-transgender” individuals, and a network of anti-LGBTQ+ health care providers and so-called conversion therapists to introduce the bans. They coordinated with one another in constructing traveling dog-and-pony shows composed of fake experts and outraged parents who rejected their children’s identities and favored the bans.
By 2021, conservative media and political action committees like the American Principles Project PAC had targeted transgender athletes as the place to start with legislation. Over the course of three weeks in early 2022, Fox News ran 170 negative segments about transgender people. Most of these supported Florida’s “Don’t Say Gay” law and attacked collegiate swimmer Lia Thomas.
Today, twenty-one states have passed bans on transgender students from participating in sports consistent with their gender identity, despite the rarity of transgender athletes and a lack of truth about their supposed dominance in their respective sports. (Thomas won a single event at nationals; she would have placed third in that same event the previous year, and her times are nowhere near good enough to make her competitive against Olympic-level swimmers, even in her best event.)
The demise of Roe v. Wade in 2022 opened up new legal strategies to limit bodily autonomy and access to health care for transgender people, especially transgender youth. Conservative media increasingly used hyperbolic language to describe health care for trans youth as “mutilation,” “lobotomies,” and even the equivalent of Nazi experiments by Josef Mengele. Every major medical organization supports access to this care, and just like abortion, it is being banned in most states with conservative legislatures.
Today, seventeen states have already banned or restricted access to best-practice care by transgender youth, and more are likely to pass such legislation this session.
These bans go beyond forbidding surgical and other types of care for transgender youth. Some bills aim to prevent even social transition (by using clothing, hair, or makeup, for example). Others prohibit therapists from doing anything to affirm their clients’ gender identities, effectively mandating only so-called conversion therapy. Another group of bills would prohibit school officials from using a student’s preferred name and pronouns, even if supported by their parents.
More dangerous are the bills requiring all mandatory reporters, such as teachers, to tell parents if their child may be transgender. For youth living in unsupportive homes, forced outing can lead to homelessness, injury, or even death.
Other states have targeted care for trans adults. Tennessee tried to pass a law banning the state from doing business with any insurance companies that provide transgender health coverage anywhere in the United States. The goal of this is to force insurance companies nationally to stop offering packages that include transition-related health care coverage. Florida’s Board of Medicine tried to bring in changes requiring doctors to provide false information to transgender patients, and introduce a waiting period for adults to start hormone treatment. These proposed regulations closely resemble the restrictions placed on abortion providers leading up to the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision that overturned Roe last year.
These legal efforts against transgender youth target their parents as well. Republican Governor Greg Abbott of Texas instructed the state’s Department of Family and Protective Services (DFPS) to investigate supportive parents of transgender youth for abuse, leading to a wave of DFPS resignations. Florida is considering granting legal immunity to unsupportive family members who kidnap transgender children from other states and bring them to Florida. This same bill could strip supportive parents of custody, and require the state to remove children from the custody of supportive parents. Simultaneously, laws like “Don’t Say Gay” in Florida are stripping both schools and public libraries of books and funding.
Another significant target of anti-transgender legislation focuses on drag performances, fueled by the manufactured moral panic over popular drag story hours for children. These bills broadly label any sort of performance or entertainment by anyone wearing clothes, hair, or makeup traditionally associated with the opposite of their assigned sex as “adult cabaret performances.” These proposed bans are so broad that they could technically define a symphony with a transgender third clarinet as adults-only entertainment. Transgender people would be forbidden from doing anything in public that might be considered entertainment (such as playing chess in the park with someone watching). Fortunately, courts have so far found these bills to be overly vague and an unconstitutional burden on freedom of speech and expression.
Popular conservative rhetoric has steadily amplified its demonization of trans people, abandoning Kilgannon’s principle regarding name-calling. Rightwing political commentator Michael Knowles, of The Daily Wire, recently declared at the 2023 Conservative Political Action Conference that “for the good of society . . . transgenderism must be eradicated from public life entirely.” Also this year, fellow Daily Wire host Matt Walsh testified to Tennessee lawmakers against health care for trans youth. Walsh once tweeted that, “I believe that gender ideology is one of the greatest evils in human history.” Former Fox News host Tucker Carlson speaks about transgender people in apocalyptic terms, calling them a threat to the “perpetuation of the species.” More broadly, the right has increasingly accused drag performers and transgender people of being “groomers” and “pedophiles.”
This deterioration of legal protections, fueled by such hateful rhetoric, has led transgender people—and their parents—to flee conservative states targeting trans people, regardless of their financial stability. Blue states like California and Minnesota are proposing and passing “sanctuary” bills that mirror abortion sanctuary laws—setting up a divisive Constitutional battle similar to that unfolding over abortion and access to the abortion pill mifepristone.
Mainstream conservatives are no longer hiding their desire to eliminate “transgenderism.” Conservative lawmakers in red states have made this their top legislative priority, and the courts cannot always be relied on to intervene. Some trans people fear that in the long term even blue states won’t remain safe, and they’re preparing to flee the country.