These past 12 months have felt like a particularly heavy time to be a member of the LGBTQ+ community in America. In February, Texas Gov. Greg Abbott ordered the state’s Department of Family and Protective Services to investigate parents that allow minors to socially or medically transition, forcing countless families to flee the state. This year, more than 124 drag shows have faced protests and threats of violence, while Drag Queen Story Hour events and Pride festivals have been targeted by bomb threats.
These events, combined with an oppressive legislative environment, have made life particularly challenging for LGBTQ+ people, but especially youth. Several states enacted laws in 2022 restricting trans student participation in athletics, while Alabama passed a first-of-its-kind youth medical care ban and Florida pushed through a “Don’t Say Gay” law curtailing discussions of LGBTQ+ identities in K-3 classrooms. In total, HRC estimates that more than 300 anti-LGBTQ+ bills were either passed or introduced in at least 36 states, and the vast majority of those efforts targeted already vulnerable young people.
If you find yourself wondering how things got this bad, it’s the result of years, if not decades, of conservatives pushing to strip rights and protections from the LGBTQ+ community by any means necessary. According to LGBTQ+ advocates, the goal of right-wing activists is to test the waters to see how much the public will allow them to discriminate — moving on from one wave of legislation to another as the tides shift. For instance: If a series of bills targeting trans access to public restroom use fail, the movement simply adopts a new target, whether it’s schools, sports participation, or affirming health care treatment.
“These are the same folks that we’ve been fighting forever,” Cathryn Oakley, the state legislative director for HRC, tells Them. “Their short-term goals change, but their long-term goals stay the same: to prevent LGBTQ people from having social and legal acceptance. That is what they are here for.”
As we look ahead to yet another year of historic anti-trans legislation, it’s important to know where we’ve come from to better understand where we’re going.
Although advocates trace the recent wave of anti-LGBTQ+ bills all the way back to attempts to ban marriage equality during the George W. Bush era, they say the more specific assaults on trans youth have their roots in the fights over affirming bathroom access in Houston and North Carolina in 2015 and 2016, respectively.
In the fall of 2015, right-wing activists in Houston ran a now-infamous ad campaign claiming that the city’s Equal Rights Ordinance (HERO), which outlawed discrimination on the basis of LGBTQ+ identity, allowed sexual predators to prey on young girls in public restrooms. Black-and-white commercials broadcast on YouTube and on public television depicted a man entering a bathroom stall after a young girl dressed in a school uniform, latching the door behind him as she looked on in fear. The narrator warned that the scenario was now legal under the city’s ordinance, which was voted in by the city council in 2014: “Any man, any time could enter a woman’s bathroom simply by claiming to be a woman that day. No one is exempt, even registered sex offenders.” The ordinance was repealed in November 2015.
The smear tactics employed against HERO were based upon dangerous tropes that cast trans people as “bathroom predators,” ignoring the fact that trans people are far more likely to experience violence in places of public accommodation than inflict it. A 2016 survey by the National Center for Trans Equality (NCTE) found that around 60 percent of respondents had been denied access to a gender-congruent restroom facility at some point in their lives. Twelve percent of survey takers said they had been harassed, verbally assaulted, or attacked while using a public bathroom within the past year alone.
Sybastian Smith, a national organizer for NCTE, says the attacks on HERO also ignore the fact that dozens of cities across the U.S. have had inclusive non-discrimination ordinances in place for decades with no issues.
“The spread of false information about transgender people is harmful, leads to fear of the community, and creates a narrative that is just not true,” Smith tells Them.” There are many cities across our nation that have policy protections in place for trans residents of their towns. The need for these types of protections shows that LGBTQ+ people are more often the oppressed and not the oppressors. Trans people usually choose to live their lives in silence or do not disclose their gender identity as a way to protect themselves. Silence mixed with fear leads to trans people not accessing or being able to access the health care and the opportunities they need to survive.”
HERO was ultimately voted down at the ballot box — 61 percent to 39 percent — and the right-wing’s resounding victory in that campaign would set the stage for both HB 2 and many of the campaigns to come. These fights share something key in common: They are based upon the same reactionary fear that the existence of trans people is a threat to others, whether it’s their physical safety, their rights, or even their ability to win scholarships. In the case of North Carolina, that anxiety manifested as the nation’s first anti-trans bathroom law, which prohibited trans people from using the public restroom that most closely corresponds with their gender identity. It was signed in March 2016, just weeks after Charlotte, the state’s largest city, passed its own trans-inclusive non-discrimination law.
HB 2 was ultimately repealed following boycotts from major companies like Apple and Google, which threatened to halt all future expansions in North Carolina over the law. The backlash, which was estimated to potentially lose the state $3.7 billion over the next 12 years, also likely cost the man who signed HB 2 into law, former Gov. Pat McCrory, his job in the November 2016 election. But in many ways, the damage had already been done: More than a dozen states introduced copycat legislation the following year.
Even as the right-wing coalesced around trans people as a wedge issue, however, bathroom bills rarely gained much mainstream traction. After the backlash to HB2, it took another five years before any U.S. state would successfully enact restrictions on trans restroom use, despite many bills being proposed.
With bathroom bills stalling in GOP-led states like South Dakota and Texas, right-wing activists began to shift their focus to a new target: trans kids. Gillian Branstetter, a communications strategist with the American Civil Liberties Union (ACLU), tells Them that the shift in priorities was designed to “fill in those missing parts” that had been lacking in its previous push to eradicate trans people from public life. “The messaging wasn't there,” she says of the bathroom bill legislation. “The audience wasn’t there. Who does this appeal to as an issue? Who does this frighten? Who does this drive to the polls?” And by honing in on kids, conservatives had found messaging that would resonate with right-wing masses: “protecting” kids by keeping them away from trans people, or worse, from becoming trans themselves.
In 2019, South Dakota foreshadowed the next wave of attacks with several bills aimed specifically at trans youth, including a sports ban, a proposal to allow parents to refuse gender-affirming health treatments for their trans kids, and a bill prohibiting teachers from mentioning topics related to “gender dysphoria” until the 8th grade.
Although each of those bills ultimately failed to become law, advocates say South Dakota is often treated by other states as a “trial balloon” for anti-trans legislation; because the state is controlled by one of the country’s most conservative lawmaking bodies, Republican lobbyists use it to test the viability of inchoate legislation before those proposals are shopped around to other jurisdictions.
“Our legislators here are incredibly accessible to lobbyists,” Libby Skarin, policy director for the ACLU of South Dakota, tells Them. “Most don't even have offices or a single staff member, and the legislature has a Republican supermajority. Our legislative session also moves incredibly quickly. You can typically get a bill passed and signed before mid-March, which means that you can spread template legislation to other states in the same year the first bill passes. We treat all the anti-LGBTQ+ bills we see as a serious threat because we know that once that first domino falls, it's much easier for bad policy to get enacted in other states.”
Idaho was the first state to pick up where South Dakota left off. In March 2020, it became the first U.S. state to ever enact a law limiting trans youth participation in school sports, despite the fact that there were no recorded cases of a trans student competing in athletics in the state. By March 2021, more than half of the country’s legislatures introduced targeting trans student athletes, particularly trans girls, and for the first time, some of them were signed into law. After the ACLU filed a lawsuit to overturn the policy, 14 states signed an amicus brief in support of Idaho, including Alabama, Kentucky, Louisiana, Mississippi, and Texas.
To date, 18 states have enacted laws banning trans youth from sports, although these efforts are beginning to slow. In December, an Ohio bill mandating student athletes compete in accordance with their “biological sex” was defeated after language requiring that sports participation be determined by genital examinations was removed from the bill. The state’s Republican governor, Mike DeWine, condemned the legislation, which has been voted down multiple times in various iterations.
The tide of anti-trans legislation is in the midst of a shift once again, just as we have seen so often in the past. Amid the unprecedented focus on trans youth, far-right media platforms joined in helping to further a novel kind of hysteria centered around the bodies of trans children.
In April 2021, Brooklyn-based realtor Chaya Raichik rebranded her Twitter handle as Libs of TikTok. The timing of Raichik’s pivot was significant: Just weeks before her account became Libs of TikTok, Arkansas became the first state to ever outlaw gender-affirming health care for trans minors. Libs of TikTok, which now counts millions of followers across its platforms, would go on to play an increasingly key role in spreading anti-LGBTQ+ misinformation as its reach grew — for instance, targeting children’s hospitals that offer life-saving medical treatment to trans youth.
Mainstream right-wing media outlets have further incited transphobia by peddling a pernicious and distinctly HB-2 era falsehood: that the community is “grooming” children into being LGBTQ+. Ari Drennen, LGBTQ program director for Media Matters, says outlets like The Daily Caller and Fox News have dedicated an “extraordinary amount” of airtime to the false notion “that your child’s teachers are going to trans them or your child’s doctor is going to trans them.” Fox News’ most popular host, Tucker Carlson, has explicitly called for violence against teachers that affirm the identities of LGBTQ+ youth, claiming during a June broadcast of his nightly talk show that they “should be beaten up.” According to Media Matters, the conservative network spent over 100 days during the first six months of 2022 attacking LGBTQ+ people.
“Because they don’t really seem to have any real solutions for what a good future for this country would look like, they’re always focused on amplifying threats from the outside,” Drennen tells Them. “To right-wing media audiences, trans people are a very convenient, activating threat. They’re always going to be attacking some group of people to further their own political power.”
This year, a historic number of states introduced Arkansas-style legislation seeking to limit trans health care — 15 — and at least one of those bills passed. In April, Alabama became the first state in history to make administering gender-affirming medical care to trans minors a felony. But in truth, Republican lawmakers are just getting started: In October, Oklahoma passed a law preventing the OU Children’s Hospital, home to the only trans youth clinic in the state, from providing transition treatment, and Tennessee lawmakers have signaled the introduction of similar legislation in 2023. Florida is likely to push a statewide ban on trans youth medical care next year after the state’s Board of Medicine voted in November to pause all gender-affirming care for minors, even those currently in treatment.
If the passing of each year shatters the record level of anti-trans legislation set by the previous one, advocates don’t expect that trend to stop any time soon.
“The number of [bills] started relatively small, and it’s grown over time,” Jennifer C. Pizer, chief legal officer for Lambda Legal, tells Them. “The percentage that has become law is fairly consistent over the years, but because there's so many proposals, that ends up being a much bigger number—dozens of measures becoming law, as opposed to single digit numbers. It’s appalling.”
While Republicans have turned up the heat on trans issues, the public does not appear to share GOP operatives’ level of appetite for discrimination. Senate Minority Leader Mitch McConnell blamed Republicans’ underperformance in the 2022 midterms on the party’s obsession with trans people, while exit polls conducted by HRC found that just five percent of respondents said that youth athletics issues motivated the vote. The national advocacy group did not poll midterm voters on trans health care, but a recent Vanderbilt University poll found that 67% of Tennesseans oppose attempts to limit access to gender-affirming medical treatments.
The tactics of the far-right will keep shifting as they tally their wins and losses and recalibrate their strategy accordingly, but Oakley says the movement always has the same aim in mind. Each new piece of legislation, she says, is intended to wear down the public’s resistance to legislation targeting trans youth—and LGBTQ+ people more broadly—until ideas that once seemed extreme become commonplace.
“We have gotten numb to the pain that we allow state legislators to inflict on people,” she says. “We have allowed the rhetoric to escalate to a point where there’s not a lot of humanity in it anymore. People roll their eyes, but they don’t stop the bill from passing because that level of rhetoric just isn’t as outrageous anymore.”
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