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Trans advocates work locally. Conservatives fight back nationally.

Support for LGBTQ rights is at an all-time high, but some state legislatures are on the attack

- May 31, 2022

On May 14, a federal court blocked Alabama from implementing a first-of-its-kind bill that would criminalize providing puberty blockers, hormone therapies or related medical procedures to transgender people 18 or younger. If the state prevails on appeal, anyone found guilty of violating the ban would face up to 10 years in prison.

Alabama’s ban is part of an unprecedented surge of state bills targeting the LGBTQ community, and transgender youths in particular, that started in 2019 and shows no sign of slowing. Most measures have involved banning transgender girls from school sports or mentioning sexuality or gender identity in schools.

Paradoxically, these restrictions are being passed even though support for LGBTQ rights is at an all-time high. More than 70 percent of Americans support marriage equality; these supporters now include a majority of Republicans. Support for transgender rights is also rising. According to polls released in 2021, two-thirds of respondents opposed measures to limit gender-affirming health care for transgender youths, like the suspended law in Alabama.

My research suggests that LGBTQ rights advocates use under-the-radar strategies for advancing reforms while conservative opponents try to generate national attention — which these bills are getting.

Why are Republicans so focused on restricting trans lives?

Americans support LGBTQ rights. Republican state legislatures attack those rights.

The fight for same-sex family rights shows the push and pull between low-visibility advocacy and high-profile opposition. Early forays into same-sex family rights centered primarily on devising low-visibility strategies for protecting same-sex co-parents.

Beginning in the 1980s, LGBTQ parenting advocates established solid, but relatively obscure, legal frameworks for advancing co-parenting rights in family court, where cases are largely shielded from public view. These efforts persuaded family court judges to grant “second-parent adoptions” to co-parenting same-sex couples, providing each parent with legal parenting status over their children even if they could not marry.

And parenting advocates often prevailed, even in conservative states.

Despite their victories, these parenting gains got little national organized pushback. Their low profile shielded them from public view and from widespread backlash. Rather, conservatives focused their attacks on preventing same-sex marriage.

Conservatives understood the capacity for same-sex marriage to rally their voters. During the 1992 Republican National Convention, a year before national gay rights groups had coalesced around marriage equality, Pat Buchanan urged his party to “stand with [President Bush] against the amoral idea that gay and lesbian couples should have the same standing in law as married men and women.” Conservative leaders had weaponized the possibility of same-sex marriage to catalyze their base.

By 1993, when the Hawaii Supreme Court issued the nation’s first court decision suggesting state constitutional support for same-sex marital rights, conservatives already had organized an all-out-offensive against what’s now called marriage equality. The Hawaii victory kicked that plan into high gear — and forced LGBTQ organizations to enter the fight for marriage equality.

My interviews with numerous parenting advocates indicate that, before Hawaii, as conservatives began targeting same-sex couples in their political rhetoric, parenting advocates were especially reluctant to join public debates about marriage rights. They feared that the attention would upend decades of quiet but steady parenting advances for lesbian and gay individuals and same-sex couples. The Hawaii Supreme Court’s decision and the juggernaut of the conservative anti-marriage movement mooted those concerns. Marriage would become a top public priority with or without LGBTQ organized support.

Americans aren’t asking for trans sports bans. So why pass them?

Transgender rights have followed a similar path

High-pitched anti-trans bathroom campaigns, which gained traction in 2016, similarly followed low-profile but relatively successful efforts for transgender students to use gender-affirming restrooms.

By 2016, an increasing number of transgender students, like Virginia’s Gavin Grimm and Pennsylvania’s Juliet Evancho, were using gender-affirming restrooms at school. Thanks in part to Nicole Maines, who in 2014 secured court support in Maine for gender-affirming restrooms in her school, Gavin, Juliet and others were able to negotiate with school principals to use bathrooms consistent with their gender identities. Despite setbacks, transgender students steadily built support, one school at a time.

Conservatives targeted bathrooms after cities like Houston (in 2014) and Charlotte (in 2016) added gender identity to their nondiscrimination ordinances. Transgender equality, conservatives warned, placed girls and women at risk by allowing what they said were men pretending to be women to use women’s restrooms. (Experts say that transgender bathroom access does not increase women’s risk of sexual violence.)

After a campaign against these policies, Houston voters defeated the city’s gender identity ordinance. Shortly after Charlotte passed its bill, the North Carolina legislature called a special session, passing a law that barred the ordinance and to ban transgender individuals from using bathrooms aligned with their gender identity.

North Carolina’s bill (and others like it) faltered. But conservatives continued to publicly and nationally stoke fears of predators — even though transgender students had been using gender-affirming bathrooms with little incident.

Transgender female athletes are targets of backlash.

The same holds for transgender athletes, particularly girls and women. Twelve states (and counting) now bar transgender student-athletes from participating on cisgender sports teams in K-12 settings, most focusing on women’s sports. Yet transgender female participation in K-12 athletics had been, on the whole, uneventful.

As with bathroom rights, transgender participation in women’s athletics didn’t register as a problem in most communities. In states implementing bans, legislators knew of few or no transgender female students in sports leagues. In most cases, transgender athletic performance on K-12 teams does not stand out.

Yet when conservatives caught wind of two Black transgender female high school track stars outcompeting their White teammates in Connecticut, they launched a national attack. Despite the rarity of transgender athletes, many Republican legislators understood that a campaign against them could mobilize voters who feared that transgender participation in K-12 sports would unfairly hold back their daughters, nieces and granddaughters — even if the facts discredited those claims.

Just as gay and lesbian family rights advocates did in the decades leading up to marriage equality, transgender students have quietly laid the groundwork for a sea change in support for transgender and nonbinary individuals. And, just as they did with same-sex marriage and bathroom rights, conservative leaders have “outed” transgender progress and targeted transgender youths to create a political boogeyman.

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Alison L. Gash (@AlisonGash) is an associate professor of political science at the University of Oregon and author, most recently, with Daniel Tichenor, of Democracy’s Child: Young People and the Politics of Control, Leverage and Agency (Oxford University Press, 2022).