In 2023, the Republican Party dropped any pretense of being willing to tolerate transgender people. Almost 600 anti-transgender bills were filed in the states in 2023, and 85 passed. This was a sharp rise from previous years, but also continued a trend going back to 2018. Most of these bills were bans on health care, athletics, and bathrooms for transgender youth. The GOP clearly signaled an intent to go much further, however.
At the 2023 Conservative Political Action Conference, Michael Knowles took the main stage and called for the “eradication of transgenderism from public life” to a standing ovation. Not long after, Project 2025 (led by the Heritage Foundation) published the “Mandate for Leadership,” a 900-plus-page blueprint for the next Republican administration. The first legislative item in the executive summary declares that “transgender ideology” is a form of pornography, and that all pornography should be outlawed. It then goes on to call all trans people “child predators and misogynistic exploiters of women.” It further demands that anyone who is a “purveyor of transgender ideology” be put on sex offender lists and imprisoned.
This an explicit call to make being transgender illegal, and to put anyone who fails to flee or detransition in prison, or maybe camps if there are too many for the existing system to handle. This is already the solution Donald Trump is proposing for other “undesirables.” It’s not coming from fringe organizations: This is the mainstream of the GOP. When Trump promises to be a dictator on day one, it’s so that he can implement draconian policies and laws like these. Average Americans might think, “Surely we would never go this far? This sounds positively Naziesque, and it is, and we’re better than that, right?”
Wrong.
We already have the first state proposing bills to do exactly this (and more) less than a week into the new legislative year. By January 17, more than 200 anti-transgender bills have already been filed. West Virginia’s Senate Bill 197 defines the existence of transgender people as “obscene” and bans them from being within 2,500 feet of any school. Senate Bill 194 would not only ban all transition-related care for anyone over the age of 21, but would also require that all providers (including therapists of all types) attempt to “cure” them. It would define being transgender as a “sexual deviation,” like pedophilia, exhibitionism, masochism, sadomasochism, or fetishism. Senate Bill 195 in West Virginia would declare that any material related to being transgender is obscene, which would have far-reaching implications for the internet and the First Amendment.
Florida is also taking a swipe at freedom of speech when it comes to transgender people. Senate Bill 1780 would mandate a $35,000 penalty for accusing anyone of transphobia. It would also exempt people from defamation lawsuits by trans people if their views are based on their “scientific or religious” beliefs. Which is to say, you could call a specific transgender person a child molester without evidence and not be liable to the same civil suit risks you would be if you did the same to a cisgender person. This expands protections on speech for one class of people, while restricting them for the minority they’re attacking.
Part of the First Amendment is the “right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Florida is attempting to abridge this as well. House Bill 599 would ban any state employee or contractor from changing their pronouns or using pronouns other than those associated with their sex at birth. It would also forbid other state employees or contractors from using their preferred pronouns. H.B. 599 goes a step further: It bans all nonprofits from “training, instruction, or other activity on sexual orientation, gender identity, or gender expression.” This would effectively ban all LGBTQ organizations in the state from operating. The effect is that LGBTQ people could no longer organize to petition the government, or peaceably assemble to discuss matters related to their organizations’ core missions.
When the bills banning health care for trans youth started coming up a few years ago, proponents swore that these were only about protecting children, and that adults were of course free to do what they wanted with their bodies. After the end of Roe v. Wade, they have dropped this pretense. Florida has enacted Targeted Restriction of Abortion Provider-style, or TRAP, policies on access to adult care that requires transgender people to see doctors in person for hormone prescriptions (when in the past nurse practitioners and physician assistants could do it via telehealth, which was how 80 percent of Floridians did it).
Now Governor Mike DeWine of Ohio has issued an executive order requiring that all trans health care for adults be signed off on by a psychiatrist, an endocrinologist, and a bioethicist. Insurance won’t cover this, and doctor’s offices, hospitals, and clinics do not have such teams. This is equivalent to the TRAP laws that required all abortion providers to also have level-one trauma facilities on site, as well as admitting privileges. It is a de facto ban on all health care for trans adults in Ohio.
There are also bills in several states that would make it impossible for trans people to obtain an accurate driver’s license and are likely to set up a full faith and credit clause fight in the Supreme Court. Florida House Bill 1233 would create government-held lists of transgender people by forcing them to sign affidavits of “biological sex” to obtain a driver’s license and face criminal penalties for fraud if they are transgender. Where the constitutional issue comes in will be when someone shows up at the DMV with a passport, birth certificate, and out-of-state driver’s license attesting that they are one sex and they are forced to put down another. This would seem to violate the full faith and credit clause of the Constitution, which requires states to respect the laws and judgments of courts in other states. But we’ve already been down this road with same sex marriage.
Some might argue that these bills are “extreme” and have not passed yet. However, they follow the pattern we have seen since around 2020. The Heritage Foundation and the Alliance Defending Freedom, or ADF, another group central to these efforts, state their intentions. Ultraconservative legislators start introducing test bills in a few states. And within a couple of years, the “extreme” bills are the law of the land in nearly half the states in the land. Heritage has stated that its goal is to ban pornography, and that transgender people are inherently pornographic.
Then there’s the laughable notion that these sorts of bills will fail to pass. Once Heritage and ADF have made it unthinkable to oppose such bills, legislative hearings become a kangaroo court. During the last hearings to ban health care for trans youth in South Carolina, the ADF couldn’t even be bothered to send anyone to support the bill because its leaders already knew that passage was a forgone conclusion. Everyone who testified in person was both a South Carolinian and opposed to the bill. And yet, it was still voted out of committee on a 4–1 party-line vote.
The extreme bills in Ohio, Florida, and West Virginia are almost certain to end up being passed in half the country within the next two years. We’ve seen this happen again and again with sports, health care, and bathroom bans over the past four or five years. They’ve told us what they plan to do, and now they are starting to do it, and it will happen even if Joe Biden wins reelection.
Trans people have already begun fleeing hostile states en masse, and it is only going to get worse. Transgender students effectively can no longer get a public education in half the states. This was deliberate and has direct analogies to German school policies in the 1930s. The Republican Party, and Donald Trump, have made it clear that they intend to seize power and spread this to the rest of the nation. The idea that our institutions will save us is ridiculous, as Trump’s lawyers are literally arguing at this moment that he has the right to have Supreme Court justices, senators, and representatives executed on a whim (presumably for opposing him acting like a dictator).
