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A new kind of anti-trans legislation is hitting the red states

Here’s the new target, after ‘bathroom bills’ failed and marriage equality won

- February 25, 2020

Last week, South Dakota’s Republican House passed a bill banning doctors from treating young people under age 16 with hormones or gender-confirming surgeries, making doing so punishable with up to a year in jail and a $2,000 fine. While this week the bill failed to pass out of its state Senate committee, the full state Senate could still decide to take it up. Meanwhile, similar proposals have been filed in Colorado, Florida, Idaho, Oklahoma, Missouri and South Carolina, and lawmakers in Kentucky, Georgia and Texas say they are also planning to file such bills. This new wave of anti-transgender legislation comes after a national backlash derailed most state efforts to enact “bathroom bills” that would require people to use sex-segregated facilities that correspond to the sex on their birth certificate.

Why the sudden interest in transgender youth in predominantly Republican states? And what will the consequences be for transgender people across the United States?

Here’s what my research shows.

How I did my research

In a recent article, I analyzed legislative measures that would prohibit transgender people from accessing sex-segregated areas such as public restrooms and school locker rooms. Using a variety of data sources, including the Human Rights Campaign’s State Equality Index archives and the National Center for Transgender Equality’s State Action Center archives, I identified 71 bills introduced in state legislatures between Jan. 1, 2014, and Feb. 7, 2018, that included the word “transgender.”

In 2015, legislatures suddenly began paying a great deal of attention to transgender issues. Although lawmakers introduced only two bills using the word “transgender” in 2014, that increased to nine in 2015, 22 in 2016, 26 in 2017, and 15 in 2018. The vast majority of these bills outlined some kind of ban against transgender people using sex-segregated public facilities, primarily bathrooms. For instance, North Carolina’s controversial HB2 overturned local transgender rights ordinances and banned transgender-identified people from using public restrooms corresponding to their gender identification unless their birth certificates were updated.

Although my analysis ended just a few months into 2018, to date none of those bills have been signed into law. Further, in 2017, North Carolina lawmakers repealed the bathroom provision of HB2 in 2017.

Content analysis shows most of these measures use the words “sex” and “gender” interchangeably and define both as strictly biological, determined by chromosomes and based on “physical anatomy at the time of birth.” This contrasts with more contemporary understandings detaching “gender” — determined by social and legal norms — from biology, or “sex.” Collapsing sex and gender together thus allows opponents of transgender rights to assert biology determines gender.

After the Supreme Court expanded marriage rights, socially conservative forces shifted to a slightly different target

Legal advocate Shannon Minter argues that after the Supreme Court’s 2015 decision in Obergefell v. Hodges, which opened legal marriage rights to same-sex couples across the 50 states, anti-gay activists switched their focus to transgender issues. Minter explains that conservative groups argued that marriage is, by definition, a reproductive union that ought to produce children — a theory of marriage that treats it as biologically determined rather than as a social or personal union. In the same way, he argues, this new legislation reifies a biological theory of binary sex to obscure the way these bills authorize discrimination against transgender people. In this view, the uptick in anti-trans legislation is a continuation of conservative strategies aimed at rolling back the rights of LGBTQ people based on the conservative idea that there are two sexes with different, biologically determined roles.

So conservatives shifted from blocking marriage equality to blocking restroom access for transgender people in 2016. Having lost that round, they’ve shifted to “protecting” young people from gender-confirmation treatment, still grounded in the same theories of sex and gender as biologically determined.

For example, in 2019, the socially conservative Minnesota Family Council published a 66-page document titled “Responding to the Transgender Issue” in conjunction with the Heritage Foundation, the anti-LGBTQ group Alliance Defending Freedom, groups of radical feminist essentialists such as Women’s Liberation Front, or “WOLF,” and the newly minted Kelsey Coalition, composed of parents and medical professionals who do not believe children and adolescents are capable of identifying as transgender.

The guide recommends several policy steps. One requires schools to notify parents if their child expresses a different identity at school — a vague directive that aims at the fact students often come out as transgender, lesbian or gay to school counselors before they tell their families. Another suggests “girls’ physical safety and athletic opportunities can only be ensured if teams are separated by sex” rather than “gender identity.” The latter argues for limiting participation in sports on the basis of sex assigned at birth, which would formally exclude transgender boys and girls from school sports.

Most of this year’s state legislative bills limiting young people from accessing transition-related health care and participation in sports teams echo these talking points, which might not be coincidental. Earlier this month, NBC News reported Jenny Pizer of Lambda Legal identified an organization called Project Blitz, a coalition of evangelical Christian organizations, as the driving force behind model legislation that targets transgender youth.

Adverse consequences of targeting transgender youth

In 2016, the National Center for Transgender Equality published a survey of transgender adults. Of those who reported they identified as or were perceived as transgender or gender-nonconforming during their K-12 school years, 77 percent said they had been harassed or mistreated in some way; just over half reported being harassed verbally for their gender identity; a quarter indicated they’d been physically attacked, and about a tenth said they’d been sexually assaulted. Seventeen percent said they left school before they graduated because of the harassment and violence they endured. Just over half of those who reported negative experiences in schools said they had considered suicide, which is higher than the third of transgender-identified youth who had not been harassed.

Critics of legislation banning gender-affirming medical treatment point to statistics like these to argue that such legislation can actively harm transgender and gender-nonconforming youth, both physically and emotionally. Pediatricians who care for gender-nonconforming or transgender-identified children and adolescents regularly describe transition-related care as lifesaving.

We don’t yet know whether any of these bills will become law. But it’s likely state legislatures will continue trying to pass measures attempting to enact into law a strict definition of male and female as biologically distinct, permanently so.

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Zein Murib (@zeinmurib) is an assistant professor of political science at Fordham University in New York whose work focuses on the politics of sexuality, gender and race.