Contextualizing Trans Children's Human Rights Violations in the United States

About this paper

I graduated from the University of Essex in March 2023 with a Master of Arts degree in the Theory and Practice of Human Rights. To graduate, I had to complete a 12,000 word dissertation on a human rights topic of my choosing. I chose to write about the rise of anti-transgender legislation in the United States, especially those laws focused on children and their gender expression. All information in this paper was accurate at the time it was originally written - Since then, the situation has become drastically worse.

Acknowledgments

Thank you to my supervisor, Rees Johnson, for the guidance and advice throughout this project (and for forcing me to finally read Foucault). I have never worked on a project this large or personal before and would not have made it this far without your support. I also want to thank my undergraduate supervisors, Dr. Michael Artime and Dr. Marnie Ritchie. They taught me the foundations of critical research and showed me that it did not have to be cold and detached but could be undertaken with compassion. I would not have made it this far without their guidance early in my academic career.

I could not have finished this project without my weekly coffee sessions with Lily, lunches at Zest with Joe, or dinners with Jamie, Imogen, Jacob, and Yan. Thanks to Matt for proofreading. Thanks to my family – Mom, Dad, Nathan, and Zane – for believing in me and supporting my decision to pursue a master’s degree overseas. Thanks to my grandparents – John, Cathy, and Miriam – For their love and support, which I felt every day. Thank you to Pebbles, whose presence on campus brought light to my worst days.

For the last few years, I’ve had the incredible privilege of coaching a middle school debate team for Aurorae Young Speech and Debate Academy. Thanks so much to Sue for hiring me almost three years ago, and thanks to my students, who have kept me going for the last year: Annabelle, Evida, Cynthia, Mingmei, Patrick, and Julinna. Their talent, ambition, and tenacity are one of my biggest inspirations.

Finally, this project is dedicated to Charley Gadd, taken from this world far too soon. I miss the warmth and humor you injected into our debate rounds. I miss our talks at Top Bar about politics, film, music, and art. I miss your poetry, which was beautiful without being sappy. I remember our last conversation, where we talked about death while I walked you to the bus stop. You said we’d finish that conversation next semester. I wish we had the chance, and I wish you could’ve known your impact on me.

Abstract

The growing trend in the United States towards anti-transgender legislation has contributed to a social environment in which transgender children’s fundamental rights to self-expression and life are threatened. Previous research into this trend has examined anti-transgender legislation in the political and social context, however, there have been few attempts to philosophically examine anti-transgender legislation. Using Michel Foucault’s understanding of discourse as it relates to power, this paper contextualizes anti-transgender legislation in the United States from a Foucauldian perspective. In doing so, it proposes that a “scientactic” discourse is created, one that attempts to justify itself using scientific language without using a scientific method. This paper argues that while anti-transgender legislation in the United States attempts to enshrine biological sex as the sole determinant of gender, it does so at the expense of legitimate scientific reasoning and ignores the potential human rights violations that result.

Chapter 1: Introduction

Some scholars say, “[g]ender affirmative approaches to supporting transgender children are becoming mainstream.”¹ However, this is only part of the story, particularly in the United States (US). The US is witnessing a concerted mobilization against the rights of trans children, especially their rights to be treated according to their gender identity or receive gender-affirming care. In 2021, for instance, Arkansas criminalized providing gender-affirming care to any gender dysphoria patient under 18—or referring such a person to another provider for gender-affirming care (presumably to limit the possibility of seeking care in another state).² This blatant criminalization of gender-affirming care for minors is not isolated to one or two states in the American South. As of March 2022, fifteen states had passed similar bills or considered them.³ While some of these laws, such as Arkansas’, are trapped in legal limbo, others have gone into full effect.⁴ Some of these bills go beyond simply placing restrictions on doctors. Bills in ten states are attempting to allow civil lawsuits against doctors, six place financial penalties on parents, and Texas and Missouri classify gender-affirming care as “child abuse.”⁵

This dissertation places the rights of transgender (or trans) children in a broader human rights perspective, mapping the landscape of US legislation that threatens those rights (along with the rights of parents and medical providers). Additionally, it treats the legislation itself as an emerging disciplinary discourse engineered to place transgender youth outside the bounds of the “normal,” marginalizing them. In treating legislation as discourse, this dissertation utilizes the work of Michel Foucault and seeks to reconcile a Foucauldian approach with a rights-centered one. To do this, it argues that trans children’s rights, when properly afforded and recognized, hold open a space for indeterminacy and contestation that Foucault would acknowledge as a site for the emergence of a politics of counter-discourse.

Context

Transgender experiences are often contrasted with “cisgender” experiences - transgender people’s gender identity differs from the sex they were assigned at birth, while cisgender people’s gender identity corresponds with it.⁶ There have always been people who have not adhered to their prescribed gender roles, even if the term “transgender” is relatively recent.⁷ In her seminal work Transgender History, Susan Stryker wrote that in the United States, “[p]eople who contradicted social expectations of what was considered typical for men or for women have existed since the early days of colonial settlement.”⁸ It is only over the past few decades—with the advent of gender-affirming surgeries, hormone treatments, and the research and literature that supports their use—that trans issues have entered into general public discourse, now manifesting in legal discourse.

From one perspective, the trans rights movement has made incredible gains in a short space of time. At the local level, Minneapolis became the first municipality to ban discrimination against trans people in 1975, and today 330 localities protect trans people from discrimination in employment and housing.⁹ In 1993 Minnesota became the first state to enact a comprehensive statewide ban (in employment, housing, public services, education, and public accommodations) on discrimination based on perceived gender identity.¹⁰ Today, twenty-one states protect against discrimination based on gender identity.¹¹ In 2009, Barack Obama signed the Hate Crimes Prevention Act into law. Named for James Byrd, Jr. and Matthew Shephard )men killed in hate crimes for, respectively, being Black and being gay), the law builds on a predecessor from 1969 to explicitly include crimes committed based on a person’s gender identity (real or perceived) in the ambit of hate crimes.¹²

Still, this has not been enough to stem the bullying and harassment that trans children often experience, leading to high depression, anxiety, and suicide rates.¹³ Meanwhile, as noted, there has been a fierce backlash to the rise of trans people’s rights in the US. This backlash often centers around bathroom facilities¹⁴ and sports.¹⁵ That backlash is also highly focused on youth and schooling, finding expression in laws such as the ones passed recently in Arkansas and Texas.

Research Question

Robust research suggests that providing gender-affirming support and care can significantly improve outcomes for trans children.¹⁶ Despite these findings, the text of legislation denying rights to transgender children systematically reifies gender and places young transgender children outside the sphere of the “normal.” Indeed, many of these measures, through their language, represent instruments of bullying. Thus, this dissertation poses a dual question: First, how does recent legislation in the US narrow the rights of trans children? Second, what discourse does that legislation enshrine concerning trans children and the phenomenon of transness?

These questions emerge as crucial to our understanding of the approximately 1.4% of children in the United States who identify as trans.¹⁷ The first question allows us to see how their rights are being challenged, on what fronts, and by what legislative strategies. The second question points us to the violent reassertion of a disciplinary discourse that insists gender is binary, fixed, and observable at birth based on primary genitalia. It is necessary to recognize this as a discourse in a Foucauldian sense in order to fully understand the power dynamics that it embeds and the ways that it shapes science to its own ends, creating a sort of parallel science to the current medical consensus on transness and gender-affirming care for trans individuals. Although it is a “new” discourse, it is also a reactionary one that re-asserts a comprehensive, putatively scientific “common sense” about what gender is and the boundaries of the normal.

Foucauldian Discourse as Methodology and Its Implications

It may seem incongruous to combine a project about the human rights of trans people with a foray into Foucauldian understandings of discourse. After all, in Foucault’s view, since the Middle Ages, “the essential role of the theory of right has been establish the legitimacy of power.”¹⁸ In other word, rights are not things that protect us from power but are a central vehicle through which power is enacted. Foucault’s philosophy has especially been criticized for viewing the law as irrelevant in what the literature describes as the “expulsion thesis.”¹⁹ Expelling the law from his analysis was crucial to paint a new characterization of power that could incorporate a variety of discourses. Alan Hunt described Foucault’s strategy as “resist[ing] the privileging of law that is characteristic of many modern political discourses.”²⁰ Foucault did not believe that the law was the only, or even the primary, way that states assert their power—Rather, he thought that it reflected “existing social relations.”²¹

To this criticism, I would respond twofold. First, even if the law simply reflects what is socially accepted, it acts as an enforcement method that directly engage and folds other oppressive discourses into itself. Tom Frost explains that “such a position still gives law a peripheral role in the social body.”²² Second, this dissertation is less concerned with law as a field and more with what the law says, specifically utilizing Foucault’s concept of discourse. Discourse refers to how power-wielding institutions create sets of knowledge that come to prescribe the boundaries of the real, intelligible, and commonsensical.²³ Because discourse comes to be accepted as both true and commonsensical, it asserts itself as ahistorical and universal.²⁴

Although primarily textual, discourses have enormous effects on the physical world and our understanding of it. As individuals accept a discourse as fact, it maps the sphere of the ordinary and acceptable. It allows them to instantiate power through it, partly by conforming themselves and their behaviors to the tenets of the discourse (thus, discourse is always connected to power). For instance, in The History of Sexuality, Foucault argues that over the course of several centuries, the church and then medical institutions created a robust discourse by which it was important for individuals to track, confess, and reveal their sexual longings.²⁵ Through this, among other things, the boundary between the normal and abominable was erected and policed (e.g., through discourses of sexual hygiene).²⁶

In Discipline and Punish, Foucault traces the history of power and describes the evolution of a “disciplinary power,” which evolved from the executions carried out by kings as a form of discipline - a series of techniques by which the body’s operations can be controlled. Under this disciplinary power, individuals’ entire lives are coerced into following scripts, rules, and strict regulations.²⁷ Disciplinary practices exist outside of traditionally disciplinary institutions like prisons - They are embedded in every institution of control, including schools and hospitals.

This is especially important when considering transgender children, as so much of their lives are shaped and influenced by educational and medical institutions. These practices create discourses of their own. Graham and Treharne note a specific example related to sex education, writing that the “menstruation content of sex education constructs women and their bodies in a negative and restrictive way…menstruation is constructed as a hygiene crisis, as something that should be hidden, and as a requirement for womanhood.”²⁸ In this case, cisgender experiences are case as the “real” and experiences outside of the gender binary become incompatible with reality. In short, I invoke Foucault mainly to explain my approach to analyzing the texts of various pieces of anti-trans legislation, exploring them to understand the discourses they enact, the disciplinary practices to which they connect, and how transgender lives experiences are constrained through these disciplinary practices.

Even still, it could be claimed that once we begin to analyze a situation using these terms, all of the physical aspects of life collapse into the relativistic concept of discourse - A concept that privileges language over lived experience.²⁹ It might be suggested that pro-trans-rights mobilizations themselves enact a normative discourse - one that enshrines a prototypical trans experience (the feeling of extreme body dysmorphia that leads the child to feel they have been born in a wrongly gendered body) and makes that experience the natural object of the medical (such as the inclusion of gender dysphoria as a diagnosis in the DSM).³⁰

I respond to these potential objections through work by Mario Moussa and Ron Scapp, who take on the question of what meaningful resistance looks like in a Foucauldian paradigm.³¹ For Moussa and Scapp, it is crucial to note that Foucault:

“Never contended that all language is oppressive. What he said…is that repression works through language, and that the struggle to overturn repression includes speaking out against it. Language can be oppressive. Speaking out, not theorizing, constitutes a counter-discourse, and it is produced by those involved “radically” and “physically” with existence.”³²

This alerts us to two things. First, focusing on language does not necessarily portend a collapse into sheer relativism. Though Foucault is primarily concerned with how language constitutes subjects through the exercise and internalization of power, he likewise recognizes that not all discourses are oppressive. The idea of the counter-discourse opens vistas of resistance that some believe to be missing in his work.³³ Second, it alerts us to the fact that those who are oppressed are the ones from whom counter-discourses emanate. To Moussa and Scapp, “only those who have been oppressed by a discourse can form a counter-discourse…Foucault hoped to clear a space in which they might speak up and begin defining themselves.”³⁴

The trans movement has enacted its own legal and medical discourses. However, this is a move of necessity, including the necessity of ensuring that trans people can receive gender-affirming treatment (i.e., without a medical diagnosis embedded in larger medicalizing discourse, trans individuals would not be able to use insurance benefits to access care).³⁵ The key is that the discourse of transness emerges from the lived experience of those who have for eons been deemed abnormal and deviant. It is the modern equivalent of the Cercle Hermaphordito’s rallying cry to “unite for defense against the world’s bitter persecution.”³⁶ It is a concerted appropriation of rights-based and medical discourse to enact a counter-discourse that seeks to clear and maintain a space for the ongoing disruption of the dominant, centuries-old Western discourse, by which gender is binary and fixed at birth - and according to which any deviation (because fascination with sexual deviation has always been high) marks the terrain of the abnormal and abominable.

Plan of the Dissertation

The next chapter explores the historical and social context of the trans rights movement in more depth to set the stage for the following discussion. It then sketches out, by turns, the framework for trans people’s rights that exists at the national and international levels. Both are fragile, still emerging, and under fierce attack in many places, including nearly half of US states. At the international level, as I explore, the International Convention on the Rights of the Child (CRC) offers a framework for understanding the rights and dignities of, specifically, trans youth.

In Chapter 3, I turn to concentrate on the American landscape and the rise of legislation and other measures that undermine the right of trans youth to access gender-affirming medical care. After describing a number of these measures in depth, I consider how they abrogate the human rights of trans children/youth. In this consideration, the idea of dignity—inherent in human rights—becomes particularly important, as do the provisions of the CRC. In Chapter 4, I change focus to concentrate on measures that undermine the rights of trans youth to gender affirming social treatment, including bans on participation by trans girls and women in competitive sports; policies to enforce the use of bathrooms and other facilities based on one’s assigned sex at birth; and attempts to extirpate all discussion of LGBTQ issues from publicly funded schools (so-called Don’t Say Gay bills). Once again, I consider both the ways these measures undercut the rights of trans children and youth and the ways they enshrine a reactionary discourse that reasserts the primacy of biological sex to identity. In conclusion, I take a step back and review the impact of these measures both on trans children’s rights and American politics more generally.

Chapter 2: Historical Context of Trans Children in the United States

US Historical and Social Context

History is clear that there have always been individuals who today would likely describe themselves as transgender.³⁷ That said, the recognition of a distinct movement for trans people’s visibility and rights is a relatively recent phenomenon. In 1895, a group of individuals who called themselves “androgynes” formed the Cercle Hermaphroditos, the purpose of which was to “united for defense against the world’s bitter persecution.”³⁸ This was an outlier, however, and it would take medical advancements to push the movement for social recognition forward.

In the 1950s US, trans issues rocketed to visibility with the case of Christine Jorgensen, who traveled to Denmark to receive an innovative combination of hormone therapy and gender-affirming surgery.³⁹ Upon her return, Jorgensen received a great deal of positive attention from Hollywood and sensationalist coverage in the national press. Later, she became one of the first trans people to be denied a marriage license based on her assigned gender at birth (Jorgensen was heterosexual and sought to marry a man).⁴⁰

Then came the Stonewall Riots in 1969. Two transwomen, Marsh P. Johnson and Sylvia Riveria, are thought to have been among the first to fight back during the police raid of the Stonewall Inn. Later; they went on to co-found Street Transvestite Action Revolutionaries (STAR) and open the nation’s first homeless shelter specifically for homeless LGBTQ youth (both had experienced homelessness themselves).⁴¹ Although the contribution of transwomen to Stonewall would not be fully appreciated until later, Stonewall represented a turning point in the fight for LGBTQ equality. Still, it would take nearly two and a half more decades for the first state ban on discrimination based on gender identity to pass in Minnesota in 1993.⁴² Further gains came on the back of the brutal murder of a 21-year-old transgender man, Brandon Tenna, and the 1999 movie about his life and death, Boys Don’t Cry.⁴³

Meanwhile, despite slow progress on social and political fronts, treatment regimens for trans individuals continued to develop. The World Professional Association for Transgender Health (WPATH). founded in 1979, published a comprehensive standard of care for trans patients that same year.⁴⁴ By the early 1980s, the first pediatric gender clinics began to open in the Netherlands, and Dutch physicians started to acknowledge the value of delaying the onset of unwanted secondary sex characteristics, implementing a protocol involving so-called “puberty blocker” to forestall their development. Unlike more invasive surgical procedures such as facial feminization or sex reassignment surgery, this treatment could only be administered to transgender children. Their effects are easily reversible if patients decide not to go through with gender transition.⁴⁵ By 2009, the US Endocrine Society published detailed guidelines for treating transgender individuals that closely conformed to the Dutch model and included support for the use of puberty blockers followed by gender-affirming hormone therapy in adulthood.⁴⁶ This model remains the standard of gender-affirming treatment for adolescents to the present.

With the development of treatment regimens that begin in early adolescence, there arose new awareness of what gender-affirming social support for transgender children might look like, as well as a backlash to that awareness. In 2014 Laverne Cox became the first transgender woman to be featured on Time’s cover. In 2015 Caitlyn Jenner graced the cover of Vanity Fair. In December 2016, National Geographic debuted a special issue on “Gender Revolution” which featured a 9-year-old transgender girl from Kansas City named Avery Jackson on its cover.⁴⁷ Jackson says “the best thing about being a girl is now I don’t have to pretend to be a boy.”⁴⁸ The issue received both plaudits and pushback.⁴⁹

As noted, a significant amount of backlash has emerged over bathroom use - a fact that, while beyond the scope of our purposes here, deserves its own dissertation-length treatment.⁵⁰ For instance, in March 2016, the state of North Carolina passed a law that mandates each public-school child use the bathroom that conforms to the gender they were assigned at birth. The law was passed to nullify, through state-level action, a local Charlotte ordinance that allowed public school students to choose which bathroom to use, based on their expressed gender, irrespective of the gender they were assigned at birth.⁵¹ Similar struggles have emerged in several states, in one case reaching the Supreme Court. In that case, the Court opted not to set a national precedent but left the lower court ruling in place - a verdict in favor of a transgender student who sued to be able to use the bathroom corresponding to his expressed gender identity.⁵² This precedent applies to Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

Although the mobilization for trans people’s rights over the past several decades has been swift and dramatic, trans people still face enormous barriers. Trans children, specifically, face pervasive discrimination in schools and after-school activities like sports.⁵³ They encounter high levels of bullying, harassment, violence, and abuse.⁵⁴ According to the Youth Risk Behavior Survey, transgender children are bullied physically and emotionally at rates between 200% and 600% of the national average.⁵⁵ They may be prevented from using their chosen name, or preferred pronouns, or forced to use wrongly-gendered facilities. These experiences create shame and make it difficult for the child to embrace the gender they experience, only increasing the chances of suicide.⁵⁶ According to Horton:

Trans pupils experiencing harassment and transphobia are less likely to be able to concentrate in class, have lower educational aspirations and poorer educational attainment. Trans pupils report hiding at lunch times, avoiding gendered spaces like bathrooms and changing rooms, and not participating in extra-curricular events and activities due to lack of safety. Trans youth have high levels of school absenteeism due to harassment. Lack of affirmative or safe school environments is also associated with trans pupils dropping out of education or transferring schools.⁵⁷

The toll from being harassed and misgendered (often at home and school) can be steep, particularly combined with the ongoing stress of living as a gender one does not identify with. The results are a “strikingly high prevalence of behavioral health diagnoses among youth diagnosed with gender dysphoria (up to 60%).”⁵⁸ These include high anxiety, depression, suicidal ideation, self-harm, and substance abuse. The rates of suicide attempts are shocking: “[l]arge surveys of TGD individuals in the U.S. have shown that 40% of adults and 35% of youth have attempted suicide.”⁵⁹ Thus, the struggle to ensure proper treatment, socially and medically, for trans youth is literally a matter of life-and-death.

Placing Issues of Trans Youth in a Human Rights Framework

A human rights framework is the obvious way to ensure equity and dignity for trans people. Powell, Shapiro, and Stein argue that the rights framework can be compared to arguments for the equality of trans individuals that the authors collectively call “born that way” reasoning.⁶⁰ There are three varieties of “born that way” reasoning: innate, immutable, and not chosen.⁶¹ These assert, respectively, that gender identity is static and unchangeable for the individual, and that gender identity is not a matter of choice.⁶² The argument this becomes that it is manifestly unfair to punish individuals for something that is fixed and beyond their control—for the way they were born.

The authors take aim at the “born that way” arguments for several reasons. First, they suggest that it is still unclear that gender identity is genetic; existing research suggests, rather, that it is the result of a complex interplay of genetic, environmental, and social factors.⁶³ Second, they find the claim that gender is unchangeable unconvincing, particularly given the fluid conceptualizations of gender that are ascendant among younger people.⁶⁴ The first and second arguments are thus vulnerable to potential research findings and social phenomena such as gender fluidity that challenge the genetic and immutable nature of gender identity. Moreover, the argument for equitable treatment of trans people can come to rely on a rigid conception of a gender binary that is itself under heavy critique, not only be, e.g., nonbinary individuals but by cisgender individuals who seek to break free of rigid gender binaries.⁶⁵ Third, they suggest that there is, in fact, a degree of choice in how people express their gender identity, and this becomes important because:

“While gender identity is not subject to conscious choice, the overt expression of gender identity includes many choices, including dress, hair, naming, and all the other options that indicate one gender or another—including which public bathroom to use. Those opposed to transgender rights wish to deny transgender people (and everyone else) these choices. Opponents do not express concern about transpersons’ inner sense of identity but about outwardly expressed choices.”⁶⁶

By contrast, Powell, Shapiro, and Stein argue that we should consider the right to express one’s gender as part of the same bundle of fundamental human rights that belong to all humans and that undergird their ability “to live and flourish in their communities—with the freedom to learn, work, love, and play—and build lives connected with others at home, in the workplace, and in public settings without fear for their safety and survival.”⁶⁷ Cisgender individuals are presumed to have the fundamental right to express their felt gender identity—i.e., to have the right to gender self-determination. This is not necessarily explicitly coded in law but can be seen in how easily cisgender people can access hormone treatment or surgeries designed ot affirm their cisgender identity.⁶⁸ That right extends to trans individuals if we apply a human rights framework, according to which all humans share the same essential bundle of rights by virtue of their being human. Per the Universal Declaration of Human Rights and the International Covenants on Human Rights, “[it is] proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”⁶⁹

Of course, the human rights framework applies somewhat differently in the case of children. Though children are presumed to bear the panoply of human rights from birth, they are also subject to family power and protections, and their decision-making capabilities may not be well developed, depending on age. For these reasons, the present paper does not treat the area of rights and law where there is a conflict between the child and their parents over the child’s gender identity. Instead, it treats the attack on rights where the child is acting with at least the parents’/guardians’ permission, if not complete, gender-affirming support.

Transgender Children’s Rights as Human Rights: The International Stage

The CRC, which came into effect in 1989 and has since been ratified by all the nations of the world save for the US and Somalia, “calls on States Parties to take all appropriate measures to ensure that children receive a panoply of specific rights, including the right to a name and nationality; access to healthcare, education, and parental care; and protection from exploitation, abuse, and neglect.”⁷⁰ Among the provisions left out of that list is Article 6 of the CRC, which states that, “States Parties shall ensure to the maximum extent possible the survival and development of the child.”⁷¹ Given the extent to which being forced to live against one’s own internal gender identity impedes the social and psychological development of the child and their full flourishing, not to mention the extreme prevalence of suicide among trans youth, Article 6 can be read as ensuring that children have the right to grow and develop in line with their felt gender identity.

More generally, the rights of trans people are part of the framework of universal human rights. On that count, the United Nations has taken empathic (if primarily symbolic) recent action. In 2011, the U.N. passed a resolution focused on sexual orientation and gender identity, asserting that these should not be grounds for abridgement of universally recognized human rights.⁷² According to the press release issued on the date of the resolution’s passage, it took pressure from Transgender Europe (TGEU)⁷³ and the Global Action for Trans Equality (GATE)⁷⁴ for gender identity to be included in the grounds of the resolution, reflecting a longstanding pattern by which transgender rights often emerge in tension with gay/lesbian/bisexual rights. However, transgender individuals were and continue to be central to the larger LGBTQ movement.⁷⁵

Despite symbolic progress, international expansion of trans rights has been slow and halting, even in Europe, which is often looked to as a beacon of progress on LGBTQ issues. As of 2022, just nine European Union nations allow trans individuals to change their legal gender identity on the basis of self-determination rather than having to submit to psychiatric examinations.⁷⁶ Most European Union countries still require a mental health diagnosis for a change in legal gender identity to proceed.⁷⁷ Meanwhile, nine countries—including Finland, Latvia, and the Czech Republic—still require applicants to undergo sterilization to change their official gender identity on documents such as birth certificates⁷⁸ (Although Sweden was the first nation to allow trans individuals to change their gender officially, it viewed this need as the outcome of mental illness; due to eugenics-related politics, transgender individuals were thought unfit to bear and raise children, therefore their legal transition required sterilization.⁷⁹ This set the pattern for numerous other nations, and indeed, there are de facto sterilization requirement in some US states, via requirements for so-called bottom surgery.)⁸⁰ Meanwhile, Malta is the only nation in Europe to apply an informed consent model to trans-affirming healthcare, and just two nations—Malta and France—have effected all-age bans on conversion therapy for trans people.

Turning to Asia, the picture is even bleaker. According to OutRight Action International, “No country in the ASEAN region has sexual orientation and gender identity protections as part of their constitution. Only two countries have either local level or national level laws on anti-discrimination—Thailand and the Philippines.”⁸¹ In the MENA region, meanwhile, one researcher looked at Egypt, Tunisia, and Lebanon and concluded that all three of them:

“Lack clear avenues for transgender people to obtain legal gender recognition, increasing their vulnerability to abuses by security forces such as arbitrary arrests, and to systemic discrimination in healthcare, housing, and employment. Medical and judicial authorities in these countries arbitrarily restrict access to legal gender recognition based on misinformed perspectives that see transgender identities as pathological.”⁸²

With regard to Africa more generally, information pertaining to transgender rights is scarce, but LGBTQ rights overall are in decline, with, e.g., Uganda and Nigeria expanding their anti-gay legislation in recent years.⁸³ As of 2019, three out of five African nations had laws punishing “homosexuality and the public expression of sexual or gender behaviour that does not conform with heterosexual norms,” with some also making it illegal merely to advocate for LGBTQ rights.⁸⁴ In Latin America and the Caribbean there have been substantial gains in past decades, and a number of nations allow transgender individuals to change their gender on official documents. However, “[t]he majority of South American countries have some kind of anti-discrimination law, but no effective mechanisms to enforce those laws. In spite of those progresses, the LAC region registers the highest rate of violence and hate crimes against SGM in the world.”⁸⁵

Transgender Rights as Human Rights: The US Context

The phrase most used in the scholarly literature to describe the legal framework for transgender rights in the US is “thin, heterogeneous and ad hoc.”⁸⁶ This accrues in part to the complex federal-state-local system of lawmaking, policy, and judicial review in the US, combined with reluctance on the part of legislatures to make sweeping statements concerning hotly contested issues. Some of the progress that has been made over the past several decades has been by lobbying federal agencies to enact regulatory changes without changing federal policy itself. This was a successful tactic under the Obama administration, particularly within the departments of Justice, Education, Health and Human Services, and Housing and Urban Development.⁸⁷ Such changes can easily be reversed by successive administrations, as was seen under President Trump;⁸⁸ thus they are a fragile basis for the according of human rights. Indeed, there is no framework for according trans rights qua human rights in the U.S., as this brief review suggests.

According to the Movement Advancement Project, twenty-two states currently have statutes prohibiting discrimination on the basis of gender identity.⁸⁹ New York and California statutes prohibit discrimination on the basis of gender identity across a wide variety of sectors, including employment, housing, and lending—but so do statutes in, for instance, Nevada and Colorado. Among states without state-level anti-discrimination statutes, there is a wide range in percent of population covered by local non-discrimination ordinances. In South Carolina, presently there are no local ordinances offering protection, and in Mississippi just 6% of the population is thereby protect; however, local ordinances protect 33% of the population in Indiana, 35% in Pennsylvania, 46% in Arizona, and 60% in Florida. Meanwhile, two states—Arkansas and Tennessee—have state-level statutes that prohibit passage or implementation of local anti-discrimination ordinances.⁹⁰

Additional protections are derived from legal cases, particularly under Title VII, which protects individuals from discrimination on the basis of (among other things) sex, with “on the basis of sex” defined to include, though it is not limited to:

“…of or on the basis of pregnancy, childbirth, or related medical conditions, and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work…”⁹¹

Although not a case involving transgender issues, it is worth noting that in the 1989 case of Price Waterhouse v. Hopkins,⁹² the Supreme Court ruled that the prohibition against discrimination on the basis of sex prohibited discrimination based on sex stereotypes as well. Specifically, in that case, a woman named Ann Hopkins had been denied a promotion because—according to her employers—she was insufficiently feminine in how she walked, dressed, spoke, etc.⁹³ The decision underlined, in accordance with previous rulings, that Title VII’s “because of sex” provision strikes at the “entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”⁹⁴ Thus, it follows that in Rosa v. Parks W. Bank & Trust Co.,⁹⁵ the First Circuit ruled that a bank could not deny a biological man a loan simply because he was dressed as a woman, and that in Schwenck v. Hartford the plaintiff had a valid Title VII claim because she was treated as a “man who ‘failed to act like one’” during an attempted rape by a prison guard.⁹⁶ A fairly long line of similar decisions lay the groundwork for the Court’s 2020 ruling in Bostock v. Clayton County that Title VII specifically prohibits discrimination based on being gay or transgender.⁹⁷

Chapter 3: Medical Gender-Affirming Care and Human Rights

Attempts to Abrogate the Right of Trans Children to Gender-Affirming Medical Care

State-level bans on children’s rights to gender-affirming medical care have emerged in several states and have been proposed in many others. In addition to the passed legislation discussed below, twenty-three state-level bans on gender-affirming medical care have been introduced and either are pending or have failed.⁹⁸ At least one state, Texas, has abrogated that right via an executive order to investigate for child abuse those parents who provide gender-affirming medical care to their trans children.

Arkansas led the way on this type of legislation with H.B. 1570 in 2021.⁹⁹ At the time, “Chase Strangio, an attorney with the American Civil Liberties Union, told media outlets that this bill…is the ‘single most extreme anti-trans law to ever pass through a state legislature’”—though arguably it has been followed by even harsher measures in other states.”¹⁰⁰ Titled the “Arkansas Save Adolescents from Experimentation (SAFE) Act, the bill prohibits medical personnel from providing gender-affirming medical care—including the prescription of puberty blockers or hormones or gender reassignment surgeries—to anyone under the age of 18; it likewise prohibits medical personnel from providing referrals for such services (presumably to block referral to providers in states where the procedure is legal).¹⁰¹ The bill outlaws use of state funds or Medicaid funds for such procedures, stipulating that insurers operating in the state should not reimburse for any such procedures on people under the age of 18.¹⁰² (It also stipulates, more generally, that insurers are not required to provide coverage for gender transitions to anyone, regardless of age).¹⁰³ In addition to professional disciplinary action, the law makes providers vulnerable to lawsuits for performing any such procedures, and it tolls the date of filing such lawsuits for 20 years after a patient reaches the age of maturity.¹⁰⁴

On March 30, 2022, Arizona’s Republican governor, Doug Ducey, signed two pieces of anti-trans legislation into law: a ban on participation in women’s and girls’ sports by transgender athletes at state-funded schools (discussed in the next chapter) and a bill to deny any “irreversible” gender-affirming procedure to children under the age of 18.¹⁰⁵ The second of the bills, SB 1138, is titled “Arizona’s Children Deserve Help Not Harm Act”¹⁰⁶ and became effective on March 31, 2022 (the 2022 Day of Visibility). The one-year delay was expressly so that trans children currently taking puberty-blockers or hormones could transition off of them, since the bill applies not just to future treatment but to those undergoing treatment at the time of the bill’s passage.¹⁰⁷

Although advertised as a ban on “irreversible” procedures, the bill—which resembles the Arkansas model very closely—is sweeping and outlaws the provision of all gender-transition procedures as well as referral to another medical provider (presumably out of state providers) who might perform the same:

“A physician or other health care professional may not provide gender transition procedures to any individual who is under eighteen years of age. A physician or other health care professional may not refer any individual who is under eighteen years of age to any health care professional for gender transition procedures.”¹⁰⁸

No state monies can be allocated for such purposes; Medicaid monies may not be used for such purposes; and no tax deductions may be taken for costs related to such purposes.¹⁰⁹ Medical professionals are subject to professional discipline for providing gender-affirming care to trans people under 18 or making referrals for such care.¹¹⁰ Additionally, the bill provides that, “A person may assert an actual or threatened violation of this section as a claim or defense in a judicial or administrative proceeding and obtain compensatory damages, injunctive relief, declaratory relief or any other appropriate relief,” setting the stage for lawsuits against medical professionals who might violate the ban on gender-affirming medical care.¹¹¹ This provision is tolled so that minors with a claim are able to bring suit for up to 20 years after reaching the age of majority.

Alabama’s SB 184, signed into law by Republican Governor Kay Ivey on April 8, 2022, goes farther than the Arkansas and Arizona legislation and criminalizes provision of gender-affirming medical care.¹¹²

The official title for SB 184 is the “Alabama Vulnerable Child Compassion and Protection Act.”¹¹³ It provides that “no person” shall perform or administer any of the following treatments on a minor “for the purpose of attempting to alter the appearance of or affirm the minor’s perception of his or her gender or sex, if that appearance or perception is inconsistent with the minor’s sex as defined in this act”:¹¹⁴ provision of puberty blockers, prescribing testosterone or other androgens to girls; prescribing estrogen to boys; performing any surgeries that result in sterilization; performing any surgeries that are meant to give the appearance of a different gender than the one assigned at birth; or removing any healthy body part or tissue.¹¹⁵ For the purposes of this provision, a person’s “sex” is defined in the act as “[t]he biological state of being male or female, based on the individual’s sex organs, chromosomes, and endogenous hormone profiles.”¹¹⁶ Violations of this provision are categorized as a Class C felony,¹¹⁷ which carries a sentence of up to ten years and includes crimes such as stalking with intent to cause fear of serious injury and robbery with threatened or actual force.¹¹⁸

Interestingly, SB 184 carries another provision unrelated specifically to medical practitioners. It stipulates that:

“No nurse, counselor, teacher, principal, or other administrative official at a public or private school attended by a minor shall do either of the following: Encourage or coerce a minor to withhold from the minor’s parent or legal guardian the fact that the minor’s perception of his or her gender or sex is inconsistent with the minor’s sex; Withhold from a minor’s parent or legal guardian information related to a minor’s perception that his or her gender or sex is inconsistent with his or her sex.¹¹⁹

Thus, there is an overlap between this bill and the “Don’t Say Gay” bill passed on the same day.

Finally, in Texas, on February 22, 2022, Governor Greg Abbott moved to prevent gender-affirming care not through legislation penalizing or criminalizing medical providers, but via an executive directive that equates gender-affirming medical intervention with child abuse and makes families who provide such interventions open to investigation by the Department of Family and Protective Services.¹²⁰ The directive was sent to the Texas Department of Family and Protective Services, along with a thirteen-page opinion by Texas Attorney General Ken Paxton, detailing why gender-affirming medical intervention can and should be considered child abuse under existing Texas law.¹²¹

These state moves to restrict gender-affirming medical care to trans use are in different states of legal challenge. An injunction had been upheld against Governor Abbott’s executive directive, temporarily halting abuse investigations into families with trans children, but on May 13, 2022, the Texas Supreme Court unanimously overturned the injunction and ruled that it was within the governor’s authority to issue the directive. (The court noted, meanwhile, that this did not mean that the Department of Family and Protective Services had to follow suit; the directive was, it ruled, nonbinding).¹²² Meanwhile, as of May 14, 2022, SB 184 was temporarily blocked from being enforced by the action of an Alabama federal district court judge. The injunction is in force while a lawsuit against SB 184 proceeds.¹²³ That case, Rev. Eknes-Tucker v. Marshall:

“Is brought by four Alabama parents from across the state on the grounds that it strips them of the right to make important decisions about their children’s healthcare. They are joined by a private practice pediatrician in rural Southeast Alabama, a clinical psychologist with the UAB medical system, and Reverend Paul Eknes-Tucker, Senior Pastor at Pilgrim United Church of Christ in Birmingham, all of whom could face criminal penalties under the law. The U.S. Department of Justice has also joined the suit as plaintiff-intervenor challenging the constitutionality of the law which would deny established medical treatments to youth who are transgender but not to others.”¹²⁴

As of this writing, meanwhile, the Arizona law has yet to face formal legal challenge.

Human Rights Violations

“All human beings are born free and equal in dignity and rights.”¹²⁵ This is the foundational statement of the UDHR¹²⁶ passed by the U.N. General Assembly in 1948.¹²⁷ The use of the term dignity is nearly as useful as the term rights itself. Although “dignity” is not given the same, enumerated substance as rights are through legislation and accords, its place is nonetheless invaluable. “Due significantly to its centrality in both the United Nations Charter and the Universal Declaration of Human Rights, the concept of ‘human dignity’ now plays a central role in human rights discourse.”¹²⁸

While dignity (as the Roman dignitas) was originally connected to the notion of civic status, over time it became progressively linked to the idea of the inherent worthiness of human beings—typically presented in contrast with animals.¹²⁹ Through the work of Immanuel Kant, dignity further became entwined with the concept of autonomy—the ability of individuals to “choose their destiny.”¹³⁰ Thus, implied in the concept of dignity is the right to make choices in an attempt to flourish to the best of one’s ability. In the case of children, this reading is enhanced by the international CRC, which provides that “State Parties shall ensure to the maximum extent possible the survival and development of the child.”¹³¹

State laws restricting access to gender-affirming medical care violate this principle of dignity and autonomy by forbidding trans children from—in concert with their parents/guardians, counselors, and physicians—moving toward the gender that matches their self-concept. As discussed above, the ability to make a measured, medically supervised and supported transition is core to reducing rates of anxiety, depression, and suicide among trans youth; yet these measures put transition of any level but the purely social (which is being attacked on other fronts) beyond reach.

It is particularly troubling that these measures prohibit puberty blockers alongside other treatments, since puberty blockers amount essentially to a “place holder,” allowing individuals to forestall the development of secondary gender characteristics such as breasts (for young women) and lower voices (for young men). Once these traits have developed, transitioning becomes a much more arduous path. Puberty blockers allow individuals to mature mentally and live as their felt gender for a period of years before deciding whether to go forward with other medical aspects of transition. Children are thought to have a reduced capacity for decision making, so puberty blockers hold open the space of decision making. Measures preventing the use of puberty blockers abrogate children’s right to control over their bodies as they mature.

The overriding directive of the CRC can be found in Article 3: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”¹³² As discussed in the next section of this chapter, sponsors of statutes such as these frame the legislation as being in the best interests of children. However, to do so, they deny the multiple studies suggesting that trans children who receive gender-affirming care and social support fare better on multiple counts than trans children who do not. Hence, it is debatable, at best, whether these measures take the best interests of the child as their primary consideration.

Meanwhile, these statutes abrogate the right of parents and guardians to make the best decisions they can for their children, in consultation with their children’s doctors. This violates Article 5 of the CRC, which stipulates that signatory nations:

“Shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.”¹³³

Of course, the US is not a signatory to the CRC. Still, it is interesting that such measures are being brought forward by conservative groups and politicians, which usually insist on the inviolability of family decision-making. In this regard, it is worth noting that the Republican governor of Arkansas, Asa Hutchinson, actually vetoed H.B. 1570, because he felt the measure interfered too much with the right of parents and physicians to make informed decisions on behalf of children.¹³⁴ Hutchinson suggested he would have signed the bill if it had been limited to outlawing gender confirming surgery (which was not in any event being offered for minors in Arkansas). “‘I do hope my veto will cause my Republican colleagues across the country to resist the temptation to put the state in the middle of every decision made by parents and health care professionals,’ Hutchinson said in a statement after the vote.”¹³⁵ Unfortunately, his veto was handily overridden, which sent an equally if not more powerful message to other states.

Emerging Discourse

The statues described above do not simply outlaw or proscribe gender-affirming care. They talk about it—and do so at great length. Typically, such legislation contains a series of “findings” concerning the nature of sex, gender, transness, and gender-affirming medical care. This talk coalesces into a discrete discourse in Foucault’s terms. Alternately, with American sociologist Erving Goffman, we might say that these discourses enact a “frame,” which Goffman took to mean the “culturally determined definitions of reality that allow people to make sense of objects and events.¹³⁶

Several things are remarkable about the content of this discourse. First is the fact that the texts of the bills are consistent across states, suggesting that there are organizations facilitating the circulation and codification of this discourse. Second, is the way they are titled, which from the start attunes us to the idea that a “frame” in Goffman’s sense is in play. All the titles reference the idea that children are being preyed upon in some way. For instance, the Arkansas statute is titled the “Arkansas Save Adolescents from Experimentation (SAFE) Act.¹³⁷ The suggestion is that gender-affirming medical care has no roots in medical science and presents children as the subject of experimentation. Similarly, the official title for Alabama’s SB 184 is the “Alabama Vulnerable Child Compassion and Protection Act.”¹³⁸ The idea of vulnerability is invoked explicitly, and the legislation is positioned as a shield, saving the state’s children from harm and extending compassion to them. Thus, the idea of compassion and protection for trans children is flipped on its head, making the case that the states’ children “as a whole” deserve protection from the idea and medical affirmation of transness.

This framing articulates with another major aspect of the discourse: it positions the phenomenon of transness as extremely rare; the suggestion becomes that a marginal fraction of the population is causing the meaning of sex and gender to be distorted for everyone. The figure routinely used in this type of legislation is that, “[f]or natal adult males, prevalence [of trans individuals] ranges from 0.005% to 0.014%, and for natal females, from 0.002% to 0.003%.”¹³⁹ This estimate of the numbers of trans people is based on the number of people who have received diagnoses of gender dysphoria and sought hormone treatment and surgery. When studies are conducted based on self-identification rather than confirmed diagnosis, the numbers grow immensely. For instance, “[i]n 2016, data from the Center for Disease Control’s Behavioral Risk Factor Surveillance System suggested that 0.6% of U.S. adults identify as transgender.”¹⁴⁰ Another study took data from 12 surveys conducted between 2007 and 2015 and conducted a meta-regression; it found that .39% of American adults—or more than a million adults—identified as transgender.¹⁴¹ Very recently, the Williams Institute at the UCLA School of Law, a leading organization in the field of transgender rights, estimated that  .5%, or 1.6 million people, over the age of 13 in the US identify as transgender. It further estimated that 1.4%, or 300,000, of American individuals aged 13-17 identify as trans.¹⁴² Hence, the statistics used in framing these bills are, at very best, incomplete. They portray a world as the bills’ framers would like it to be: where gender dysphoria is an aberration.

There are other claims that reinforce the “dysphoria as aberration” frame. Most notably, the bills create a narrative that trans people will be “damaged” no matter whether they are treated or not. For instance, Alabama’s SB 184 asserts:

“Several studies demonstrate that hormonal and surgical interventions often do not resolve the underlying psychological issues affecting the individual. For example, individuals who undergo cross-sex cosmetic surgical procedures have been found to suffer from elevated mortality rates higher than the general population. They experience significantly higher rates of substance abuse, depression, and psychiatric hospitalizations.¹⁴³

While it is true that transgender individuals who have transitioned still have higher rates of these things than non-trans contemporaries, they also have robustly more favorable outcomes than do trans individuals who do not receive gender affirming care.¹⁴⁴ But the framing suggests that trans individuals “are simply damaged,” no matter what care they are given; thus, invasive care is not warranted.

The selective use of statistics points to an aspect of the text of these pieces of legislation that I call “scientacticity.” By scientactic, I mean they go to great lengths to speak about sex and gender in scientific terms—imparting the aura and feel of science—without embracing other tenets of contemporary scientific discourse, which include the centrality of peer reviewed work and the necessity of reporting contrary findings. Thus, a definiteness emerges in their treatment of trans issues that is not embraced by the majority of scientific community.

They also, in a way that Foucault would enjoy immensely,¹⁴⁵ talk at length about sex and sexual organs. This articulates with the “scientacticity” of the presentation, but also creates a discourse of the natural versus the aberrant, what Foucault describes as the Scientia Sexualis:

“The mere fact that one claimed to be speaking about [sex] from the rarefied and neutral viewpoint of a science is in itself significant. This was in fact a science made up of evasions since, given its inability or refusal to speak of sex itself, it concerned itself primarily with aberrations, perversions, exceptional oddities, pathological abatements, and morbid aggravations…Claiming to speak the truth, it stirred up people’s fears; to the least oscillations of sexuality.”¹⁴⁶

Over the past several decades, as trans issues have come to the forefront, there has emerged a counter-discourse to the Scientia Sexualis, a belief that gender trumps sex and that sex can be irreverently overridden (e.g., through gender reassignment), played with (e.g., through gender ambiguity), or otherwise put to one side as the prime determinant of a person’s role and fate. This counter-discourse depends, to be sure, on its own scientific discourse, but it speaks from the margins and centers the supposedly “aberrant” as being equally real and dignified as the “normal.”

The discourse of this legislation arises as a strong rebuke to that playful counter-discourse and as a reassertion of the “normal.” Thus, these pieces of legislation typically begin by defining sex, e.g., as in Arizona’s SB 1138:

““Biological Sex” means the biological indication of male and female in the context of reproductive potential or capacity…without regard to an individual’s psychological, chosen, or subjective experience of gender.¹⁴⁷

Thus sex, and not gender, is reasserted as the natural and essential defining characteristic of an individual from birth. Gender reassignment surgery is then posed as a declination from the norm that may include some form of genital reconstruction or reformation, a hysterectomy, or the implantation of a prosthetic.¹⁴⁸ Within the context of legislation, this appears as an exhaustive list.

Across most pieces of legislation (whether proposed or passed), the same language appears. No explanation is given as to the context of such procedures or the fact that, where gender transition may be indicated in a young child, physicians do not simply proceed to hormones and surgery, but rather closely monitor the child over a period of years, potentially with the aid of puberty blockers to allow for a substantial period of observation and communication with the child. Rather, the specter is that “healthy” biological males and females are being “mutilated” and “reshaped” based on nothing but an initial expression of dysphoria that may resolve itself. The enumeration of potential surgical techniques is like a parade of horrors, making “clear” how vulnerable the state’s children are to medical experimentation.¹⁴⁹

Chapter 4: Social Gender-Affirming Care and Human Rights

Attempts to Abrogate the Right of Trans Children to Gender-Affirming Social Treatment

There are several fronts in the battle over gender-affirming social treatment of young people. Not surprisingly, they cluster mainly around schools and school-related activities and facilities. Perhaps most notable among the attempts to curtail gender-affirming social treatment of trans children are the so-called Don’t Say Gay laws. Florida passed such a measure in March 2022; by April 2022, at least a dozen other states had proposed similar laws, modeled on Florida’s.¹⁵⁰

Because it is the model for other legislative efforts around the nation, it is worth taking time to explore the Florida bill. The first aspect of note is that its proper title is “An Act Relating to Parental Rights in Education.”¹⁵¹ Thus the idea is established that something is happening across the schools to curtail parental rights. This type of naming is par for the course across similar bills. For instance, South Carolina’s H. 4555 is titled “Parent Bill of Rights,” while Minnesota’s H.F. 4827 is titled the “Parental Rights Awareness Act” and is introduced as an act to “provide for student welfare and parental awareness in education.”¹⁵²

The second detail that stands out about the Florida bill is that, where the legislation to prohibit gender-affirming medical care is verbose in its exactness—reveling in the listing of body parts, procedures, and side effects—the Florida bill, like those modeled on it, is elliptical to the point of vagueness. For instance, the header of the bill begins by saying its purpose comprises “notifying a student’s parent of specified information…to reinforce the fundamental right of parents to make decisions regarding the upbringing and control of their children in a specified manner.”¹⁵³ It is not until much later in the header, when it discusses prohibited classroom conversations, that we realize the bill’s contents relate to “sexual orientation or gender identity.”¹⁵⁴

The wording of the text of the bill proper is no less elliptical. It begins by tasking district school boards with implementing “procedures for notifying a student’s parent if there is a change in the student’s services or monitoring related to the student’s mental, emotional, or physical health or well-being and the school’s ability to provide a safe and supportive learning environment for the Student.”¹⁵⁵ Once again, it is not until much later in the text of the bill that we learn the bill relates to issues of sexual orientation and gender identity. Once decoded, it becomes clear that schools will be tasked with notifying parents if their children evince signs of queerness—an aspect of the bill that has received less press than others (though for queer students, it may be the most inimical). At stake, according to the bill, is the right of the parent to “make decisions regarding the upbringing and control of their children by requiring school district personnel to encourage a student to discuss issues relating to his or her well-being.”¹⁵⁶ To this end, additionally, schools and school personnel are forbidden from encouraging students to withhold information about themselves from their parents. The centrality of parental rights is again affirmed in Sec. 2 of the bill, which orders school boards to adopt procedures to enforce the legislation. These procedures must, “reinforce the fundamental right of parents to make decisions regarding the upbringing and control of their children by requiring school district personnel to encourage a student to discuss issues relating to his or her well-being with his or her parent…”¹⁵⁷

The more famous provision of the bill, of course, concerns what may and may not be taught or spoken of in classroom settings: “A school district may not encourage classroom discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age-appropriate or developmentally appropriate for students.”¹⁵⁸ Here it is clearer what the issue is: teaching or classroom interactions that might encourage students to express a non-normative sexual orientation or gender identity. However, there continues to be a vagueness to the wording. For instance, it is unclear what is “age appropriate.” Moreover, the wording “or in a manner” suggests the second half of the directive may apply to all grade levels, not just primary.

While some follow the Florida formula almost exactly, other pending bills are more specific. For instance, Tennessee’s H.B. 2633 was formulated to insulate teachers from legal action or repercussions in the workplace if they refer to children by the pronoun that aligns with the child’s biological sex rather than their gender identity (The measure failed).¹⁵⁹ Louisiana H.B. 387, which failed, explicitly would have prohibited teachers or other school employees from discussing their own sexual orientation or gender identity with students.¹⁶⁰ Arizona’s H.B. 2495, which was passed and signed into law, proceeds by banning “sexually explicit” materials from the classroom, unless the material advances a clear pedagogical purpose; consent forms have been sent to parents; and alternative assignments have been provided for those students who do not receive parental consent.¹⁶¹ Arizona legislators additionally succeeded in passing a bill that forces schools to “[e]mphasize biological sex and not gender identities” if they offered a sex education curriculum, in addition to giving extensive review and advisement capacities to parents.¹⁶² Finally, Arizona H.B. 2011, still in process, targets student groups, such as gay-straight alliances, stipulating that a student would need parental permission in order to take part in “any school student group or club involving sexuality, gender or gender identity.”¹⁶³ The bill also proposes that parents should be offered opportunities to review the content of the “formational documents” of any such student group, and that parents should be apprised of this right any time permission to take part is sought for their child.¹⁶⁴

A second line of attack on the rights of trans youth revolves around youth athletics. Again, Florida is one of the leaders, with a bill currently in process that that would force all state-funded schools and colleges/universities to designate their sports programs based on “biological sex,” as either male, female, or coed.¹⁶⁵ Sports designated for women or girls would not be open to “students of the male sex” (with trans women treated as being “of the male sex” for these purposes).¹⁶⁶ In addition to providing avenues for students and parents to brings suits against institutions that might transgress the law, it provides a specific avenue for resolving disputes over a student’s biological sex.¹⁶⁷ Namely, the student must supply a doctor’s signed statement indicating “the students sex based only on all of the following factors: 1. The student’s internal and external reproductive anatomy. 2. The student’s normal endogenously produced levels of testosterone, 3. An analysis of the student’s genetic makeup.”¹⁶⁸ (Provisions are then made for students who may have been born intersex or with another “medically verifiable genetic disorder of sex development.”)¹⁶⁹

Iowa has already passed a similar bill (though without the measure of requiring physician statements to resolve disputes).¹⁷⁰ Pennsylvania currently has a bill similar to Iowa’s in progress.¹⁷¹ In fact, twenty eight states are either considering similar legislation or have passed it.¹⁷² (As of May 2020, nineteen states had passed similar laws.)¹⁷³ Current figures for the so-called “bathroom bills” are difficult to come by, but in 2017 alone sixteen states held hearings on legislation to limit access to restrooms, lockers, and other gender-bifurcated facilities based on sex assigned at birth.¹⁷⁴

Human Rights Violations

Strategically, much of the legislation under discussion couches itself within a rhetoric of rights. In the case of so-called “Don’t Say Gay” bills, as we have seen, the idea of parental rights comes to the fore. In the bans on sports participation—banning trans girls and women from participating in girls’ and women’s sports—women’s rights are placed center stage. This makes it difficult to argue from a human rights perspective, since trans rights have not fully been codified as human rights, despite certain recent efforts by the U.N. (Meanwhile, parental rights and women’s rights have important and established places in the panoply of human rights.)

Therefore, it is important to think not only in terms of codified rights, but of the dignities of human. These bills are calculated to create shame around non-normative sexual orientations and gender identities. They likewise open avenues of bullying and humiliation¹⁷⁵—e.g., by encouraging students and parents to “challenge” the maleness or femaleness of sports participants. Consequently, it can be argued that such measures violate the human dignity that is inherent in human rights.

Moreover, I would suggest, these laws abrogate the right of the child to the fullest possible development, as reflected in the CRC. The scientific literature, though still developing, indicates that gender-affirming social treatment is one important factor in lessening the high rates of anxiety, depression, and suicide that are associated with the trans youth population. Meanwhile, beginning to live as the other gender is an important step in figuring out whether one wants to transition more permanently. Thus, by passing legislation that makes it difficult to live as a gender other than the one assigned at birth, this legislation abrogates the right of trans youth to pursue their own development.

There is a fragile emerging framework for the right of trans individuals to gender-affirming social support. According to the Movement Advancement Project (MAP), fifteen states, plus the District of Columbia, have robust measures in place to guarantee equity and dignity for LGBTQ individuals (with a separate breakdown offered of rights for trans people).¹⁷⁶ An additional five states were determined by MAP to offer “medium overall” LGBTQ rights—reflecting in part uneven provisions for trans individuals. Twenty-one states are ranked as having a low or negative policy tally.¹⁷⁷

Even as rights-damaging legislation is passed in many states, some forms of protection emerge on the judicial front. Most notably, in Grimm v. Gloucester County School Board, the Supreme Court refused to hear an appeal from a lower court ruling that a trans student, Ryan Grimm, could not be denied use of the bathroom facilities corresponding to his gender.¹⁷⁸ The ruling is a fragile one because the Supreme Court did not actually reach the merits of the case; it simply denied an appeal by the Gloucester County School Board. However, the lower court opinion, from the Fourth Circuit, ruling en banc, was unequivocal in its affirmation of Grimm’s rights: “At the heart of this appeal is whether equal protection and Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender. We join a growing consensus of courts in holding that the answer is resoundingly yes.”¹⁷⁹ The finding harmonizes with the Supreme Court’s decision in Price Waterhouse v. Hopkins¹⁸⁰ that Title VII protects trans individuals from discrimination on the basis of sexual stereotyping, and it raises the specter of using Title IX to overturn state bans on participation in women’s sports by trans women and girls.¹⁸¹ Even still, successes under Title VII and Title IX do not rise to the level of a statement of inherent rights; as statutes, they can be modified at will by Congress. We appear to be a long way from a determination that trans individuals have inherent rights to be treated according to their expressed genders, rather than their genders assigned at birth.

Emerging Discourse

As discussed in the last chapter, statutory attacks on the right of trans youth to gender-affirming care position themselves as acts of “protecting vulnerable youth” from depraved forms of experimentation. The positioning is slightly different with regard to social gender-affirming treatment; here the claim is that the rights of specific groups—alternately parents or cis girls/women—are being threatened by advances in equity for trans individuals. So, as discussed above, the so-called Don’t Say Gay bills are typically titled as “bills of rights” for parents. The amorphous nature of the language in these bills serves two purposes: it encourages the sense of threat from all directions, and it serves to deflect criticism that these bills target LGBTQ youth.

The language of sports bans and bathroom bills tends to be more direct, as it makes copious use of existing rulings on discrimination against women. So, for instance, Idaho’s “Fairness in Women’s Sports Act”¹⁸² begins by quoting a watershed 1996 case that ruled the Virginia Military Institute could not exclude women from its student body: “The legislature finds that there are ‘inherent differences between men and women,’ and that these differences ‘remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity,’ United States v. Virginia, 518 U.S. 515, 533 (1996).”¹⁸³ Later the text of Idaho’s H.B. 500 returns again to United States v. Virginia in order to affirm the usefulness of “sex classifications” in areas such as sports, which “allow for the ‘full-development of the talent and capacities of our nations people,’ United States v. Virginia, 518 U.S. 515, 533 (1996).”¹⁸⁴ In the logic of Idaho’s H.B. 500, the fact that sex classifications are permissible in some cases, including sports, makes it permissible to exclude people who were assigned male at birth from women’s sports. However, there is a glaring irony to the use of this rhetoric from United States v. Virginia. In that case, the rhetoric of sex classification was deemed permissible when “used to compensate women ‘for particular economic disabilities [they have] suffered,’ Califano v. Webster, 430 U. S. 313, 320 (1977) (per curiam), to ‘promot[e] equal employment opportunity,’ see California Fed. Sav. & Loan Assn. v. Guerra, 479 U. S. 272, 289 (1987), to advance full development of the talent and capacities of our Nation’s people.”¹⁸⁵ In other words, the court saw fit to respect the use of sex classifications where they would lead to atmospheres that promote, not exclude women. It is another matter entirely to use such classifications to exclude trans women. Once again, as in the bills denying gender affirming medical care, the discourse re-centers the primacy of biological sex and treats trans women as irredeemably “male,” no matter what transitions they have undergone.

Chapter 5: Conclusion

Through the decades of their emergence, trans rights have represented a concerted project of bringing people at the very margins of society to the center; emerging as a counter-discourse, in the Foucauldian sense, to the primacy of biological sex in determining a person’s fate. In the US and parts of Europe, the shift has been remarkably rapid. When the Cercle Hermaphroditos united “for defense against the world’s bitter persecution”¹⁸⁶ there was no hope for social traction; “androgynes” circulated primarily in an underworld of gay and lesbian life in places like New York and San Francisco. It would not be until the post-WWI period that the first sustained effort to study transness and provide gender-affirming medical and social support emerged, in the form of Magnus Hirschfield’s Institute for Sexual Research in Berlin; but that effort, as we have seen, was doomed by the Nazi regime. The burning of Hirschfield’s collection of arcane materials on transness and queerness (to use contemporary terminology) from around the world became the stuff of one of the Nazi’s first and largest book burnings. A student and friend of Hirschfield’s continued with his work in post-WWII America, but it was not until the 1950s, with the celebrity of Christine Jorgensen, that the vast majority of Americans had any awareness of the phenomenon of transness. Even with the Stonewall riots and the emergence of the gay and lesbian rights and visibility movement at the tail end of the 1960s, trans people were placed at the margins.

Thus, the work of trans rights and centering transness in social and political discourse in the US has transpired over a matter of several decades. Given this very brief span of time, gains have been enormous; nearly half of the states, for instance, have robust protections in place for trans individuals in areas such as housing and employment rights. Yet the framework for trans rights in the US overall is “thin, heterogeneous and ad hoc.”¹⁸⁷ The same phrase aptly describes the international scene, with some West European states offering a fairly robust framework for trans rights, but very thin and uneven progress across most of the regions of the world. The United Nation’s explicit inclusion of trans rights in the panoply of human rights, therefore, is noteworthy but largely detached from the structures under which rights are granted and protected.

Meanwhile, the backlash has been fierce, at both international and national levels. In Russia, for instance, we see the specter of Russian nationalists positioning themselves in distinction to the West’s tolerance for LGBT+ rights (Putin has described the teaching of gender fluidity to children a “crime against humanity”).¹⁸⁸ And a similar dynamic has emerged in the US, with trans rights positioned as a crucial flash point in the culture wars and red/blue divides. Children, meanwhile, have come to serve as a fulcrum for this backlash, with state and local anti-trans legislation focused on the provision of gender affirming medical support for children; the teaching of gender and sexuality in schools; the use of school facilities; and the inclusion of trans youth in sports.

This legislation abrogates the human rights of trans youth and children in numerous ways. It strikes at their right to dignity. It undercuts their bodily autonomy. It collapses the space of choice (through, i.e., bans on puberty blockers), preventing trans youth from delaying the onset of secondary sex characteristics. It undercuts the right of parents and guardians to make the best decisions possible for their children in concert with their children’s physicians.

These pieces of legislation also, whether passed or not, contribute to an emerging discourse that seeks to re-enshrine biological sex at the center of our understanding of gender. According to this discourse, it is not trans children who are vulnerable and in need of protection; rather, parents and children need protection from the very concept of transness. Supposedly, children are the unwitting victims in a push to experiment on their bodies for some ill-defined ulterior purpose. It is a discourse that masks its intentions with the language of science without adopting the practices of science. Thus, it hollows out any reference to the real and knowable to enshrine its own limits to what can be thought and said about gender, destructively so.