A new wave of legislation is targeting the very legal existence of trans people, leaving LGBTQ+ advocates across the country to grapple with the implications.
Over 35 bills have been put forward in 2024 that seek to define trans people out of public life, according to an analysis from the Transformations Project, a grassroots nonprofit tracking anti-trans legislation. These right-wing bills are predominantly intended to change existing laws (or implement new ones) to redefine sex based on biological characteristics, thereby excluding trans and gender nonconforming people. This kind of legislation would impede trans people’s ability to move through daily public life, from using public restrooms, locker rooms, and changing areas to accessing domestic violence shelters and updating their identity documents.
Taken together, the bills would effectively require that trans and gender nonconforming people be misgendered in order to move through the world. This legislation also seems to be an early step at chipping at legal protections for trans people that already exist. When examining the wide swath of these bills, LGBTQ+ advocates believe the intent is to chip away at the gains made in the Supreme Court’s ruling in Bostock v. Clayton County, which held that sexual orientation and gender identity are protected under the definition of “sex” in the Civil Rights Act of 1964. By redefining what that word means at the statewide level, lawmakers potentially have the ability to limit the scope of that decision, thereby slowing the LGBTQ+ equality movement’s pace.
Of the 19 states that have introduced such legislation, Mississippi and Oklahoma are currently leading the pack: At least five different proposals tabled to each state’s legislature seek to redefine words like “sex” to refer to one’s “biological sex at birth.” For instance, Oklahoma’s HB 1449 defines the word “female” to mean a “natural person whose biological reproductive system is developed to produce ova” and says that a man is any individual whose “biological reproductive system is developed to fertilize the ova of a female.” The legislation also goes onto redefine other gendered terms, such as “man,” “woman,” “boy,” “girl,” “mother,” and “father,” in ways that intentionally exclude mention of the lived realities of trans people.
Some of these bills are rapidly advancing through their statehouses: Mississippi’s HB 1607 has already passed its House of Representatives, and Alabama’s HB 111 is likely headed for a House vote within the coming weeks following favorable notices in committee hearings. These proposals, which are virtually identical to one another, also go out of their way to legally erase intersex people. Their respective bill texts state that “individuals with differences in sex development, also known as ‘DSDs’ or ‘intersex conditions,’ are not a third sex.”
Jose Vazquez, communications director for the ACLU of Alabama, notes the heteronormative framing of these bills also ties legal manhood and womanhood to the act of biological reproduction, which could have direct impacts on LGBTQ+ people and individuals whose bodies don’t conform to those standards. For example: Is a gay man not fertilizing an ova then a lesser man, legally speaking? Vazquez believes the open questions left unanswered by HB 111 are “fully intentional.”
“A lot of times people want to assume that these lawmakers write these bills and aren't aware of the unintended consequences of the legislation they're writing,” he tells Them. “But we know their intention is to not just erase trans people but make life incredibly difficult for folks across the board.”
LGBTQ+ advocates have largely been left befuddled by the potential implications of this novel wave of legislation, which are opening myriad legal cans of worms in states across the country. Few of these proposals even do what they claim: For instance, the first of these bills to be made law was Kansas’ SB 180, also known as the “Women’s Bill of Rights,” which was forced through in April 2023 over the veto of Gov. Laura Kelly (D).
The majority of these bills share the same title, including the aforementioned proposals in Mississippi and Oklahoma. Alabama’s bill does not have a name aside from its bill number, but HB 405, a 2023 bill that ultimately failed to pass, was referred to as the “What Is a Woman Act,” which is also the title of a 2022 anti-trans documentary from far-right pundit Matt Walsh.
Alana Jochum, policy director for the Transgender Legal Defense and Education Fund, says this branding is intentionally misleading. She says these bills don’t “actually help in the many areas of disparities between men and women,” failing to address subjects like “bridging the pay gap, supporting paid family leave, or facilitating access to affordable childcare, birth control, or abortion,” as she states. Instead, many of these bills are patterned after model legislation from the anti-trans organization Women’s Liberation Front; she says they were then shopped around to state legislatures to “score political points at the expense of trans people, especially trans youth.”
“What they are clearly trying to do with these is narrow the definition of sex in ways that counter established federal, state, or local laws and the rich body of case law that has evolved to protect transgender people,” Jochum tells Them. “These are absolutely aimed at trying to allow for legal discrimination against transgender people.”
While even LGBTQ+ advocates weren’t clear as to what SB 180 would actually do when the bill was being debated last year, the Kansas bill has been applied broadly to strip away basic resources from trans people. Following the passage of SB 180, the state’s conservative attorney general, Kris Kobach, shut down the established process allowing trans people to update the gender marker on their driver’s license or state ID. Although it does not go so far as to retroactively void all existing identification that affirms trans people’s identities, trans applicants will reportedly see their gender markers revert to the sex they were assigned at birth if they renew their license in the future.
Denying trans people identification that matches their lived identity can be extremely dangerous, as 2015 data from the National Center for Trans Equality indicates. Overall, nearly a third of respondents (32%) who presented a license that didn’t match their presentation had had a negative experience as a result, whether it was being verbally harassed, refused services, or even assaulted. It could also result in trans people being outed any time they apply for a job, get pulled over by a police officer, or are asked to show ID while using their credit card at the grocery store.
But SB 180 has affected even more than the ability of trans Kansas to access accurate identification, according to Justin Brace, executive director of Trans Heartland, a non-profit organization that works with trans people and families across Kansas. His nonprofit has received 15 reports from trans students across the state, Brace says, who say their schools stopped allowing them to use the bathroom that most closely aligns with their sense of self following SB 180’s passage. Trans Kansans have also reported to the organization that they’ve been turned away at single-sex domestic violence shelters or transferred to prisons that do not match their gender. Brace says the law’s long reach has created tremendous anxiety among members of the state’s trans community, who don’t know how it could be applied next.
“It keeps us from being able to go out with friends, see family, or go to certain schools because they’re not safe for us anymore,” Brace tells Them. “It creates a fear, and we’re constantly afraid for our lives every time we walk out of our front doors. I don’t go out alone at all anymore. When I’m planning my day-to-day routine, I plan it around the law: Where am I going to use the bathroom? Where am I going to be safe?”
At least six other states currently have laws on the books that narrowly define sex in ways that could be detrimental to trans people, according to the Movement Advancement Project. These include Montana, Nebraska, North Dakota, Oklahoma, Tennessee, and Utah, the majority of which already have statutes on the books limiting trans restroom use in schools. Montana and Nebraska do not have trans student bathroom bans, and it remains to be seen whether their trans erasure laws will be applied to deny affirming bathroom access to trans youth.
Although LGBTQ+ advocates in Montana say they are, in many ways, still waiting to see how the state’s 2023 trans erasure law will be enforced, early indications suggest it will be used similarly to the Kansas statute: targeting access to affirming documentation. In February, the Montana Department of Health and Human Services issued a statement saying that it would no longer allow trans people to amend the gender markers on their birth certificates. This declaration defied a 2022 court ruling declaring the state’s birth certificate policies unconstitutional, over which Montana was held in contempt of court for violating last year.
While Montana’s newly enacted laws restricting drag and trans youth health care have received a great deal of attention, Andy Nelson, executive director at Western Montana LGBTQ+ Community Center, says the trans erasure statute has largely flown under the radar. Because the wording is so vague, he worries that it could go even farther than the already horrific attacks on trans people the state has seen to date.
”It’s so much broader than just banning drag,” Nelson tells Them. “It’s so much broader than just banning gender-affirming care. Erasing a whole group of people from the state code is so much more complicated than that and even more horrifying.”
While LGBTQ+ activists are still in wait-and-see mode regarding these efforts, how far states are permitted to go in erasing trans people will likely be determined by the courts. Iowa’s proposed HSB 649 goes further than other trans erasure bills by explicitly justifying anti-trans discrimination. The bill text claims that the word “equal” is not synonymous with “identical” or “same,” adding: “Separate accommodations are not inherently unequal.” That language directly mirrors the Supreme Court’s 1896 ruling in Plessy v. Ferguson, which argued that racial segregation was constitutional. The decision was ultimately overturned in 1954’s Brown v. Board of Education, a unanimous verdict that served to desegregate schools and public spaces.
Keenan Crow, director of policy and advocacy at One Iowa, says that a major concern with Iowa’s trans erasure bill is that, since 2007, the government has had statewide protections in place outlawing discrimination on the basis of both sexual orientation and gender identity. That sets Iowa apart from other states that have legally erased trans people, which do not have LGBTQ+ civil rights laws on the books, and Crow notes that it’s not evident which of the two laws would take primacy.
“It really did not take into account what the existing Iowa laws were,” Crow tells Them. “It’s so haphazard that it's hard to figure out what it would do, what it would overrule, and how they would interact. It's just a big mess — maybe a bigger mess than almost any other bill I’ve ever seen.”
Heron Greenesmith, deputy director of policy for the Transgender Law Center, believes that the aim of the trans erasure bills is ultimately about preventing trans people from partaking in any form of public life. If trans people can’t get a job without facing harassment, go to the bathroom without worrying they’ll be turned away, or even drive with the correct documentation, it makes it hard to participate in society with the rest of the world or even to simply exist. Trans people’s lives, as Greenesmith says, “become unrecognizable” without those extremely basic protections.
But what unnerves Greenesmith so deeply about this new line of attacks on trans people isn’t just how much pain it would inflict but how unapologetic they say the anti-LGBTQ+ right is being about it. “Those in power have, as they have made incredibly clear, intend this to harm trans people,” Greenesmith tells Them. “That is clear in their testimony, and that is clear in their personal messages. The vaguer the legislation is, the broader the license is to use it to harm.”
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