Adult Trans Bans, Drag Laws, And More: Anti-trans Legislative Digest For Mid April

There are so many laws moving around the United States that it can be hard to track everything. This legislative digest will give you the state of affairs.

Anti-transgender legislation has surged across the United States, making it challenging to monitor all the developments. Every few weeks, I release a legislative digest highlighting the most significant bills and policies circulating throughout the country. This digest will provide updates on three primary categories of anti-transgender legislation: care bans, “define sex” laws, and drag bans. Furthermore, the digest will address safe-state laws, a form of progressive legislation that some states are implementing to safeguard transgender individuals.

Several legislatures passed gender-affirming care bans, bringing the total to 15 states with hormone therapy bans backed by veto-proof majorities including Missouri’s new AG policy banning many trans adults from care. Drag bans continue to advance but face obstacles from court challenges and amendments that weaken them. There is a rise in laws that define sex in ways excluding transgender people from rights, threatening restroom access and identity documents. Other bills moving include total bathroom bans and those targeting adult insurance coverage. On a positive note, 10 states now protect transgender individuals and abortion patients fleeing criminalization in other states.

There are over 472 bills moving through the United States that target transgender people, and many of these defy the previously mentioned categories. Some of the most harmful new pieces of legislation target transgender people’s bathroom rights in Florida, adult health insurance coverage in several sates, and expand on “Don’t Say Gay” bills that ban books, classroom discussion, and more.

Here are the major categories of trans bills moving right now:

Gender Affirming Care Bans

Trans care bans that ban all hormone therapy for trans youth or adults with a chance of passing.

We are currently at 15 states that ban gender affirming care for transgender youth or adults. Most of these forcibly detransition trans youth in the state - South Dakota and Kentucky’s laws even specifically have a provision telling doctors how to medically detransition youth under their care. Over the last few weeks, we have seen Idaho, Montana, Indiana, and North Dakota pass care bans for transgender youth in violation of modern standards of care from the World Professional Association of Transgender health.

Particularly noteworthy is an emergency order issued by Missouri Attorney General Andrew Bailey, which sidesteps the legislature to impose stringent rules on both youth and adult gender-affirming care. These rules effectively amount to a total ban on care for many transgender individuals, regardless of age. For example, the decree stipulates that severe dysphoria must persist for three years and requires extensive therapy. However, if an individual is depressed, they must be denied therapy. This creates a catch-22 in which gender-affirming care, which could address the depression, is withheld until the depression, caused by the absence of gender-affirming care, is resolved. This situation is akin to denying insulin to a diabetic patient until their blood sugar decreases.

Two bans remain enjoined in court - Alabama and Arkansas. These two bans passed in previous years, and court cases around them could result in several states seeing their own bans challenged. The ACLU has reported that it will be challenging the Indiana care ban immediately, along with several other care bans. Likewise, the Missouri care ban is likely also going to be challenged in short order.

Bills Defining Trans People Out Of The Law

Bills that define sex in a way that excludes trans people from all legal protections.

Several states have introduced bills aimed at removing transgender individuals' ability to obtain gender-accurate legal documents and stripping them of gender identity protections. These bills, presented as simply "defining sex" as biological and assigned at birth, are anything but simple. Because the new definition gets applied to every existing law, the consequences are devastating for transgender people. This would potentially ban them from restrooms, require birth sex on IDs and birth certificates, and deny anti-discrimination rights. These bills have passed one chamber in eight states and both chambers in Kansas, where a veto with a narrow margin for override is expected.

This week, significant developments on this topic took place in Montana, where a heated hearing exposed numerous unintended consequences of the bill. For example, the bill's definition of sex excludes intersex individuals, leading to absurd and harmful situations. Montana law bans human cloning using "female eggs," but the bill's definition of sex permits using eggs from intersex people for cloning. Another representative pointed out that under this law, Montana code would protect individuals from child sexual abuse by "the opposite or same sex." However, the exclusion of intersex people could create a legal loophole for sexual assault against them, which could be exploited.

Drag Bans

Drag bans have been a new feature in anti-trans legislation in 2023. These bans tend to target drag artists and transgender people for “exhibiting a sex different from the sex assigned at birth” while “performing in public” and typically include a clause about prurient interest. The terms are often undefined and vague, allowing police officers to arrest people for simply dancing down the street at Pride or singing at karaoke. Though these bans were pushed heavily initially, heavy opposition has lead to their weakening and we have even seen a court case overturning one in Tennessee.

Several states have weakened their drag bans considerably. After Tennessee’s drag ban was enjoined by a federal judge, Arkansas, North Dakota, and Florida all amended their drag bans to instead be bans on partially nude performance in front of children. These bills will make it much harder to prosecute things like drag queen story hours and family-friendly drag brunches. However, even bills like these are likely to be weaponized to target transgender performers and drag artists in states that pass them and so local LGBTQ+ organizations continue to oppose them.

One state appears to be pushing forward with drag bans: Montana. Montana has pushed forward with a bill that would ban “obscene performances” from anyone who “adopts a flamboyant or parodic feminine persona with glamorous or exaggerated costumes and makeup.” This bill has already passed the house and has been voted out of the Senate Judiciary Committee. It will see a full vote on the house floor.

Safe State Bills

States that have passed legislation that protects abortion and trans refugees and patients visiting over state lines.

Numerous states that criminalize transgender individuals also target trans people and abortion patients who cross state lines to access care. In response, several states have enacted laws aimed at protecting their privacy and shielding them from out-of-state investigations and warrants related to their care. These laws are referred to as "shield laws," "safe-state laws," or "patient and provider protection laws." In recent weeks, multiple states have passed such laws or issued executive orders implementing these provisions. New Jersey, Colorado, and Washington are the most recent additions to this map.

As more bills targeting transgender individuals emerge across the United States, the need for protective legislation will grow. Drag bans, care bans, and bills defining sex in ways that exclude trans people may result in individuals fleeing states in search of safe havens. With increasing threats to transgender adults in places like Missouri, nearby safe states like Minnesota and Illinois can provide a crucial safety net. Regrettably, much of the South, where the most severe bills are being passed, may be cut off from easy access to safe states. Only federal intervention or decisive court victories in the coming months can provide the necessary protections.