While transgender rights are making gains at the federal level, states are pushing back

More than half of US states are currently considering one or more anti-trans bills. Most of these bills are aimed at restricting health care for transgender youth or preventing them from participating in sports for their self-identified genders.

President Joe Biden campaigned for president promising to pursue equality for members of the lesbian, gay, bisexual, transgender and queer community (LGBTQ). To deliver on that promise once he was in office, Biden reversed one of his predecessor’s most divisive actions and lifted the ban on transgender Americans serving in the United States military.

It’s been one of the few occasions so far in 2021 in which transgender people have actually gained rights. Elsewhere, state governments, particularly those led by Republicans, have been headed in the opposite direction, passing an array of legislation that some have classified as anti-transgender. This follows four years in which the administration of President Donald Trump repeatedly stripped rights from transgender people.

Per the American Civil Liberties Union (ACLU) and the Freedom for All Americans campaign, more than half of US states are currently considering one or more anti-trans bills. Most of these bills are aimed at restricting health care for transgender youth or preventing them from participating in sports for their self-identified genders. Other bills are framed as laws for protecting religious freedoms.

Biden’s support for transgender people

For transgender individuals, the arrival of the Biden administration brought immediate relief from the legislative agenda of the previous administration.

Though President Donald Trump had said during his 2016 presidential campaign that he would be a “real friend” to the LGBTQ community, in his first year in office, Trump announced via Twitter he would be banning transgender people from serving in the military.

President Biden reversed Trump’s ban, signing the “Executive Order on Enabling All Qualified Americans to Serve Their Country in Uniform” on January 25. The order makes it so “all transgender individuals who wish to serve in the United States military and can meet the appropriate standards shall be able to do so openly and free from discrimination.”

In the executive order, Biden stated, “It is my conviction as Commander in Chief of the Armed Forces that gender identity should not be a bar to military service.” Biden cited military research that found “open transgender service has had no significant impact on operational effectiveness or unit cohesion in foreign militaries.”

The January 25 executive order is not the only pro-trans stance Biden has taken. His first day in office included the signing of another executive order that affirmed the 2020 Supreme Court decision in Bostock v. Clayton County, which found “discrimination ‘because of . . . sex’ covers discrimination on the basis of gender identity and sexual orientation.”

Though the executive order did not prescribe a specific legislative action, it was intended to emphasize that the Biden administration and the Department of Justice would actively root out actions that were discriminatory toward LGBTQ people.

On March 8, Biden signed another executive order addressing discrimination in educational environments, including for issues of sexual orientation and gender identity. The order commands Attorney General Merrick Garland and Secretary of Education Miguel Cardona to review federal agency policies to ensure they do not violate Title IX prohibitions against discrimination based on sex.

The Biden administration also includes the first openly transgender person to be a federal official: in March, Dr. Rachel Levine, a transgender woman, was confirmed by the Senate to serve as the assistant secretary for health in the Department of Health and Human Services.

State anti-trans laws

As of March 25, the American Civil Liberties Union (ACLU) had categorized nearly 100 separate pieces of legislation aimed at limiting the rights of transgender people. According to the ACLU, these bills:

“Target transgender and nonbinary people for discrimination, such as by barring or criminalizing healthcare for transgender youth, barring access to the use of appropriate facilities like restrooms, restricting transgender students’ ability to fully participate in school and sports, allowing religiously-motivated discrimination against trans people, or making it more difficult for trans people to get identification documents with their name and gender.”

Examples of such bills include the recently passed HB1570 in Arkansas that outlaws all forms of gender-affirming medical care for anyone under the age of 18. The “Save Adolescents from Experimentation (SAFE) Act” is ostensibly intended to protect young people from invasive treatments that could have long-term effects on their mental and physical development.

However, the ACLU called the law “cruel and discriminatory legislation” because it would bar trans youth from getting needed medical care and insurance. Holly Dickson, the executive director of the ACLU in Arkansas said, “This bill flies in the face of common decency, basic human rights, and the advice of every major medical association – not to mention federal law.”

The ACLU vowed to sue if the bill was signed into law, but on April 5, Governor Asa Hutchinson said he would veto the bill. It could still become law, though, if the state’s assembly overturns the veto.

Other legislation currently circulating in the US that critics have labeled as being anti-trans would require trans student athletes compete in sports based on their biological sex, not their gender identity. For instance, Mississippi recently passed the SB2536, the “Mississippi Fairness Act,” which requires all public institutions of higher learning to designate their sports teams by biological sex.

Like much of this sort of legislation, the focus of the law is on preventing biologically male athletes who identify as trans women from competing with other female athletes. The assumption is that trans women have an advantage in athletics.

The Mississippi branch of the ACLU issued a statement that said there is “simply no data” to support the concerns that SB2536 was designed to address. It cited the Olympics, which has permitted transgender athletes to compete according to their gender identity for many years, but has yet to have a transgender athlete win a medal.

Though these types of laws have also been proposed in states that went “blue” in 2020 (i.e., voted for Biden), such as Arizona, the states where these so-called anti-trans laws are getting the most traction are ones with conservative leadership. The legislatures of both Arkansas and Mississippi are controlled by Republicans and the governors of each state are also Republicans.

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