A History of the Rise of Anti-Trans Legislation in the United States

Gender justice advocates must be clear on our history as they strategize how to fight for equality under a presidential administration that is slated to be less supportive than the one they’ve gotten accustomed to over the last eight years.

Transgender activists are scrambling for a unified front against the ensuing battles, especially in light of the incoming hyper-conservative presidential administration. Lindsay Williams

This piece is published in collaboration with Echoing Ida, a Forward Together project.

If you aren’t transgender, you probably think that transgender discrimination can be easily reduced to public restroom access. Who can really blame you? After all, it’s pretty much all the media and government officials (particularly conservative ones) seem to focus on. However, if you ask the average transgender person in the United States about the most important issues facing them, you’re bound to get a different response. Health care and employment are often at the tip of their tongues.

That’s because the current backlash against transgender and gender-nonconforming (GNC) individuals in the United States didn’t just materialize out of thin air. Rather, it has been brewing for years, at the same time that there has been in the LGBTQ rights movement a decades-long erasure and sidelining of our narratives and experiences. Gender justice advocates must be clear on our history as they strategize how to fight for equality under a presidential administration that is slated to be less supportive than the one they’ve gotten accustomed to over the last eight years.

When the LGBTQ rights movement gained steam in the 1950s and ’60s, cisgender queer people bogarted their way to the forefront despite the commonly known fact that trans and gender-variant people galvanized the larger community into action.

Over the next 30 years, cisgender gay men and lesbians found their issues—largely marriage equality—bubbling to the surface of politics. In the ’90s, the U.S. Congress pushed forward the Defense of Marriage Act, which ruled that on a federal level marriage should be “between one man and one woman” and allowed states’ refusal to recognize same-sex marriages. These setbacks cemented the focus of mainstream LGBTQ activists and organizations on fighting for marriage equality, despite the existence of long-standing issues like employment and housing discrimination, violence, police profiling, and lack of adequate health care—which more drastically affect the trans community.

“I think that [as surveys have shown] most of us have experienced and continue to experience discrimination. Whether interpersonally, in the workplace, in jails and prisons, in the health-care arena, in schools, or in a myriad of other contexts, our community continues to experience widespread discrimination,” Sasha Buchert, a staff attorney at the Transgender Law Center, said to me in an interview for this piece. “I think one reason for the current wave of anti-trans legislation is that we are more visible than we have ever been. Historically, mainstream popular culture has largely ignored us, vilified us, or satirized us.”

During the mid-2000s, after nearly a decade of increased media representation of cis gay men and lesbians, the fight for anti-discrimination had progressed on many fronts. Although the public was still grappling with whether marriage equality would negatively affect social structures, some successes came in the form of federal hate crimes legislation (the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act), the repeal of many state sodomy laws, and the installation of civil union protections for same-sex partners.

Despite a long history of erasure from the larger LGBTQ rights movement, trans and GNC people began to gain more visibility. Rumblings began on college campuses in the second decade of the 2000s as trans and GNC students became more vocal about their identities and specific discrimination. Discussions on institutionalized transphobia, including a lack of access to facilities free from violence and harassment, became commonplace. As a result of student activism, TIME magazine reports that more than 150 colleges and universities in the United States have gender-neutral restroom policies and some 200 have gender-inclusive housing.

In a similar vein, trans and GNC activists and advocates began pushing for myriad legal protections in major cities like Austin, Philadelphia, Portland, San Francisco, and Washington, D.C. By 2015, the Obama administration had begun to openly support the legal and social recognition of transgender citizens. The Justice Department advocated for transgender student Gavin Grimm after his Virginia school denied him access to restrooms and facilities that corresponded with his gender, and symbolically by making proclamations on major LGBTQ days of observance, hosting LGBTQ events, and even opening the first gender-neutral bathroom in the White House.

In June of that year, the U.S. Supreme Court ruling of Obergefell v. Hodges made marriage regardless of gender or sex a constitutionally protected right. With a steady increase in transgender visibility, including the coming out of Olympic gold medalist turned reality TV star Caitlyn Jenner in that same month, trans rights were poised to become the next great battle. Conservatives responded by seizing on their tried and true fear-mongering tactics to move from queer people, in general, as a threat to specifically trans and GNC people.

“As the [transgender and gender-nonconforming] movement has matured, more and more people like [best-selling author] Janet Mock and [actress] Laverne Cox and other community role models in the public eye have fought to live dignified and authentic lives. I feel like this wave is in some degree a response to that refusal to live in the shadows,” Buchert said.

One of the earliest post-marriage equality backlashes came in November 2015, when Houston voters repealed the Houston Equal Rights Ordinance (HERO), which banned discrimination in employment, housing, and public accommodations on the basis of numerous identities, including sex, race, ethnicity, religion, disability, and most notably, gender identity and sexual orientation. Conservative politicians targeted the measure as a “bathroom bill” and used the public’s lack of familiarity and understanding of transgender issues as leverage.

“I think [anti-trans legislation] has been brewing for some time. In almost every battle for nondiscrimination protections the discussion … has almost always been reduced to fears about which bathroom people will use. This isn’t an accident. It is a scare tactic, and it isn’t the first time that people have used bathrooms to frighten the general public in an effort to defeat equal protections,” Buchert said, referring to segregation in the South in the early 20th century.

Anti-trans bathroom rhetoric is a perfectly whisked concoction of ignorance and fear for a general public still trying to come to terms with gender variance. Much like the false claim that same-sex marriages would diminish the long-standing heterosexual ones, the bathroom issue paints trans people as a threat to the safety of women and children—and usually white ones.

“The bathroom commercial that [HERO opponents] ran used a little white girl in the ad,” said Houston-based writer and blogger Monica Roberts. “They tapped into the fear and demonization of trans folks. It’s similar to the old Jim Crow fear of Black folks into generating a fear of trans folks.”

The Jim Crow tactic Roberts references relates to the idea that increased access for Black people in the United States—specifically Black men—would result in white women being at a higher risk of violence, harassment, and sexual assault. It was often used as a moral case against desegregation of public spaces in the South, but was exposed in Southern Horrors: Lynch Law In All of Its Phases by historic Black journalist Ida B. Wells-Barnett. More recently, convicted murderer Dylann Roof seized on this trope as a reason for committing the Charleston massacre and taking the lives of nine Black people. President-elect Donald Trump also has used the it against Latinx communities when he insinuated that Mexicans are rapists in a campaign speech during the 2016 presidential election.

In a similar fashion, conservatives often strip trans women of their womanhood and paint them and all transfeminine individuals as hypermasculinized, hypersexual predators, despite a major lack of evidence for this case. However, due to continued ignorance on gender identity, anti-transgender politicians maintain a hold over the general public when it comes to the bathroom debate.

In March 2016, former North Carolina Gov. Pat McCrory (R) ushered in one of the most regressive anti-LGBTQ laws in the country with HB 2, the Public Facilities Privacy and Security Act. It effectively nullified local anti-LGBTQ discrimination ordinances and specifically targeted a measure that had passed in Charlotte earlier that year. Despite continued protests, consternation from the Obama administration and the U.S. Department of Justice, and backlash from numerous businesses and organizations, the law set a precedence that conservative politicians around the country plan to follow in 2017.

“Last year we saw almost 50 anti-trans bills introduced in over a dozen states and I think we will see the same amount this year—if not more,” Buchert said. “We have already seen anti-trans legislation that has been pre-filed in Alabama, Texas, and Washington, and people have begun gathering signatures in an effort to introduce anti-trans ballot measures in South Dakota and Massachusetts for the 2018 election.”

Transgender activists are scrambling for a unified front against the ensuing battles, especially in light of the incoming hyper-conservative presidential administration. All hope isn’t lost as there have been some successes for transgender and GNC people around the country. Some states and cities continue to push forward measures to protect transgender and gender-nonconforming citizens, including with regard to public accommodations and expanded legal recognition.

As the legislative opposition to transgender equality speeds up in the coming year, the tactics employed by both sides must be documented and used as reference while strategizing. Tracking anti-trans legislation and following the efforts of organizations and advocates dedicated to transgender justice is key.

“There are a number of states who are leading the way in providing legal protections. Unfortunately, many trans people, especially trans people of color, have not experienced a lived equality and continue to experience discrimination and violence,” Buchert said. “Winning the legal protections is only a step towards equality, and [the trans community and their allies] must work to dismantle racism and transphobia and continue to shift public opinion.”