Drag Bans Proliferate, Care Bans Too: The Anti-Trans Legislative Digest

Pride Month is approaching and people need to understand the laws that are targeting LGBTQ+ people. This legislative digest will help do that.

This year, more than 530 anti-transgender laws have been proposed throughout the U.S., a task too daunting for most individuals to fully grasp. In response, this legislative summary aims to provide a clearer understanding of the legal environment surrounding transgender rights and LGBTQ+ legislation. While other resources, such as the maps provided by the Movement Advancement Project, offer a comprehensive view of various laws, this digest focuses specifically on laws that directly affect the transgender community. Key subjects include bans on gender-affirming care, prohibitions on drag, legislation that seeks to erase transgender legal recognition, and so-called "safe state/refuge/shield" laws aimed at protecting transgender individuals from prosecution outside their home state.

Over the last month, there has been a major uptick in anti-trans legislation as legislatures attempt to pass laws before they adjourn Sine Die. As of this month, we have seen 18 states with gender affirming care bans for trans youth - some of these states have targeted transgender adults as well. Florida, in particular, has had a rough month for transgender people with the passing of several laws targeting the community, including a gender affirming care ban targeting adults and a drag ban.

Drag bans have also passed since the previous legislative digest. Most notably, Florida passed a ban on drag that was sold as a “general obscenity law.” While the bill does not explicitly mention drag, a DeSantis tweet showed that it will be enforced as a drag ban by viewing drag events as sexual. Likewise, Texas is now the largest state with a drag ban in effect, banning “gesticulations” using “exaggerated male or female characteristics.” There are now 5 states with these bans in effect.

We have also seen more states pass laws that define trans people out of all legal protections. These bills purport to “define sex” in a narrow way based on biological roles of reproduction, exclude intersex people, and bar trans people from updating their legal documents. Oklahoma and Tennessee passed such laws this month, bringing the total number of states eliminating all transgender legal recognition to 4.

There are other laws that have targeted the trans community that do not appear on maps. Florida’s bathroom ban, which passed this month, is particularly cruel and deserves special recognition as it would imprison trans people who are seen in the bathroom of their gender identity for up to a year if a cisgender person is also in that bathroom. It creates a second class citizenship status for trans people and will be used in incredibly cruel ways moving forward. Kansas also has a bathroom ban that has already been enforced on the mother of a disabled son.

There has been no increase in shield laws this month - the total number of states with shield/refuge laws continues to hold steady at 11. Oregon’s law was slated to pass this month, but efforts there have been stymied by a Republican walkout that has prevented any further legislation from being passed.

Here are the updates on the major categories of bills moving:

Gender Affirming Care Bans

Gender affirming care bans in states with a Republican trifecta or supermajority.

Over the past month, bans on gender-affirming care have persisted, particularly in states dominated by Republican trifectas or supermajorities. Such legislation often results in the withdrawal of transgender youth from their current medication, forcing them into medical detransition. In states like South Dakota and Kentucky, these bills dictate the exact method by which physicians should "gradually reduce" patients' hormone levels until they undergo medical detransition. Furthermore, Mississippi and Indiana have enacted laws that criminalize the act of "aiding and abetting" the provision of gender-affirming care. Meanwhile, a bill currently under consideration in Ohio would mandate psychological conversion therapy as the state's preferred approach to its transgender youth population.

This month brought forth new gender affirming care bans that target trans people in extremely harsh ways. Florida’s care ban has banned gender affirming care for all trans youth, but has also banned it for virtually all trans adults as well - it bans nurse practitioners from providing care, who provide 80% of the care. It also bans care unless a misinformation form is distributed - that form has yet to be provided by the state.

This month, we also saw Nebraska’s filibuster broken after 81 days in order to get a gender affirming care ban passed within the state - they did this by tying it in with a 10 week abortion ban to secure votes. Though the ban there is not a full ban on youth care yet yet, it gives control to the state’s chief medical officer. There have been fears that this person will utilize this law in order to ban care in a similar manner to Florida. We also saw a care ban pass in Texas for transgender youth this month, aided by Democrat Shawn Thierry, a move that shocked her constituents and resulted in her county party censuring her - she is one of only a handful of Democrats nationwide to vote for such a bill.

Some bans were defeated this month, however. Most notably, Louisiana’s ban was defeated when Republican Senator Mills voted against the bill in committee. He did this in part because of a Louisiana report showing that gender affirming care is safe, effective, and results in lower suicide rates for trans youth. This drew the ire of conservative commentators like Matt Walsh. Senator Mills brushed off the outside pressure, saying that they are not his constituents.

Drag Bans

Drag bans in states with a Republican trifecta or supermajority.

Drag bans have also recently proliferated. Early in 2023, it seemed these prohibitions would face widespread defeat, with several being blocked in states across the U.S. Tennessee's drag ban, which initially garnered significant attention, was eventually halted by the courts.

However, conservatives shifted their strategy on drag bans midway through this legislative cycle. Instead of outright targeting drag, they shifted to targeting "sexual conduct” with obscenity laws. These sexual conduct laws do not explicitly mention drag, but are intended to allow overzealous prosecutors and governors to target drag for prosecution. Arkansas and North Dakota were the first two states to pass these laws.

In the past month, both Florida and Texas enacted legislation of this nature. Florida's law, although it does not explicitly reference drag, has already led to the cancellation of several drag performances and has even resulted in some Pride parades shutting down in the state. The Texas law, approved later in the month, extends restrictions further by prohibiting "gesticulations" that utilize "exaggerated male or female characteristics." Florida Gov. Ron DeSantis has openly stated his intention to leverage the legislation against drag performances, and a similar approach is anticipated in Texas.

Bills Defining Trans People Out Of The Law

“Define Sex” bill in states with a republican trifecta or supermajority.

Not content with banning gender affirming care, drag, and sports, some state legislatures have attempted to eradicate all transgender legal recognition. Laws that seek to “define sex” based on biological roles of reproduction have passed in four states. These bills use a narrow definition of sex that excludes intersex people and treats transgender people as their assigned gender at birth for all legal purposes. Tennessee became the 4th such state to pass a bill this month.

These bills have an extreme impact on the trans, intersex, and two-spirit community. Montana’s bill, for instance, eradicates trans legal recognition from 41 sections of code - including drivers licenses, birth certificates, and death certificates. Tennessee and North Dakota’s law would have similar impacts. Kansas law goes even further by banning transgender people from bathrooms in the state. Although the ban has no criminal penalty, it has already been used to force a cisgender woman out of a bathroom with her disabled adult son.

Safe State Bills

Safe state bills passed.

Despite heavy anti-trans legislation, several states have passed protective laws that help the transgender community and its allies escape prosecution over state lines. These laws, termed “shield laws,” block out of state prosecution for seeking gender affirming care. They also prevent medical records from being subpoenaed as well as extradition requests. Some of these laws, such as in Minnesota and California, also protect transgender youth from being taken out of state and forcibly detransitioned by a non-affirming parent in a custody dispute between two parents.

No new law was passed this week, leaving the total number of states at 11. Oregon was expected to pass such a law, but that law has been stymied by a Republican walkout that will result in several Republicans being no longer eligible to run for reelection in the state.