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Biden reversed Trump ban on transgender people serving in military. Expect backlash in states.

More than 20 bills restricting transgender freedoms have already been introduced.

- February 2, 2021

On Jan. 25, President Biden signed an executive order reversing a Trump-era ban on transgender people serving openly in the U.S. military. Many advocates celebrated this rebuke of President Donald Trump’s assault on transgender people. However, state governments are preparing bills and regulations that would restrict those rights, with transgender youths targeted once again, as happened last year at this time.

The American Civil Liberties Union reports that in January alone, legislation that would bar transgender youths from taking part in school athletics was introduced in Connecticut, Iowa, Kentucky, Mississippi, Montana, New Hampshire, North Dakota, Oklahoma, Tennessee, and Texas. And bills preventing transgender people younger than 21 from obtaining what the American Academy of Pediatrics refers to as “lifesaving” gender-affirming health care have been introduced in Alabama, Iowa, Indiana, Mississippi, Missouri, Montana, South Carolina, Tennessee, Texas, and Utah, with similar legislation in Oklahoma and New Hampshire proposing felony penalties for doctors who provide such care to people younger than 21. More anti-transgender bills can be expected as state legislatures open later this year.

Surge in anti-trans legislation in the states

While the Biden administration promises to defend lesbians, gay men, bisexuals, and transgender people, backlash can be expected for pro-LGBTQ federal policies. Indeed, 2021 is already on track to produce more than the previous year’s number of proposed anti-transgender bills, most of which failed. Scholarship on LGBTQ politics suggests that anti-transgender legislation might be a new prong of the ongoing conservative strategy to use opposition to LGBTQ and women’s rights to motivate their base.

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Research on the battles over same-sex marriage that took place across the states in the early 2000s illustrates how these conservative campaigns work. Political scientist Joseph Mello studied state ballot measures prohibiting same-sex marriages, finding that conservatives used claims that religious liberty and parental rights were under assault to generate what academics call a “moral panic” over child welfare. That in turn motivated voters to turn out to oppose same-sex marriage — and while they were there, to vote for Republicans. Conservative discourse encouraged these voters to view themselves as cultural warriors oppressed by political elites.

Similar tactics are now being used to promote anti-transgender legislation, often playing to fears of government overreach in family life. Mississippi’s SB 2171 opens by prohibiting any named agent from “infringing on a parent’s right to withhold consent for any treatment, activity, or mental healthcare services that are designed and intended to form their child’s conceptions of sex and gender.” The proposed Indiana ban on transgender youths receiving care includes a provision that allows parents to sue health-care providers if those providers do treat their children. Of course, all people younger than 18 require parental permission to access care; in other words, these bills serve no rational purpose. They are instead conservative bids to shape conversations around rights, gender and sexuality.

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I examined all the bills that propose excluding transgender youths from sports and found that all specifically target transgender girls. Proponents justify the bans by pointing to scientifically debated assumptions about hormones and the need to maintain a level playing field for non-transgender girls. This contributes to the sexist view that girls and women are uniquely vulnerable and require protection.

Efforts to bar transgender girls also have racial implications. In February 2020, the Alliance Defending Freedom filed a federal lawsuit in Connecticut naming two Black girls, Andraya Yearwood and Terry Miller, as defendants in a case seeking to prohibit transgender girls from competing in high school athletics. My analysis of how proponents of these bans talk about Yearwood and Miller finds that arguments in favor of banning them from athletics relies upon racist tropes of Black men’s athleticism as well as the need to protect White women from Black men.

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How can we expect these bills to fare?

In 2020, many of the bills failed. Idaho was the only state where two anti-transgender pieces of legislation were signed into law last year; the ACLU immediately filed a federal lawsuit opposing the legislation. Few bills are likely to pass this year.

In 2020, the Supreme Court decided in Bostock v. Clayton County that LGBTQ people are protected from employment discrimination under Title VII of the 1964 Civil Rights Act’s ban on discrimination on the basis of sex. The Biden administration has announced that it will interpret the decision broadly, treating any discrimination against LGBTQ people as prohibited sex discrimination. Under that standard, Idaho’s law specifically barring transgender girls and women from competing in women’s sports will probably be interpreted as enshrining sex discrimination and struck down in the courts.

Idaho’s other anti-transgender law prohibits people from updating their birth certificates to reflect their gender identities. In August, a federal district court ruled that the law is unconstitutional.

Can this legislation shape public opinion on transgender rights?

Political scientist Andrew Flores’s research finds that as people become more informed about transgender issues, they are more likely to support transgender rights claims. In addition, Flores finds that people who know gay men or lesbians also hold positive views of transgender people. This suggests that ongoing efforts to educate the broader public about gender identity and transgender issues might make it hard to enshrine discrimination against transgender people into law. In the event that these bills become laws, they will probably be struck down in the courts, eroding their legitimacy in the public eye.

The right is likely to propose anti-LGBTQ legislation in the hopes of drawing conservative voters to the polls for gubernatorial and midterm elections, which typically see lower turnout. Biden’s executive order will be only one element in the ongoing skirmishes over transgender rights.

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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.