State Legislation Targets Trans Community Like Never Before

Some 44 proposed anti-transgender bills across 16 states call for disclosures of sex-reassignment surgery, bans from public restrooms, DNA testing, and more.

Photo Illustration by The Daily Beast

According to a new report from the Human Rights Campaign (HRC), 44 anti-transgender bills are under consideration in 16 states. Over half of those bills target children. In total, there are now over twice as many anti-trans pieces of legislation on the table as there were in 2015.

That sudden shift is compelling evidence that the Religious Right has turned its attention away from same-sex marriage to discriminate against one of the most vulnerable populations in the country. Many of these 44 bills fall into disappointingly familiar categories. There are 29 “bathroom bills” which would ban transgender people from using the proper restrooms. And there are five variations on the so-called “First Amendment Defense Act” (FADA), which would allow anti-transgender discrimination under the guise of “sincerely held religious belief.” But some of the bills are so unusual that it’s hard to imagine what sort of rhetoric could possibly mask the bigoted animus behind them.

HB 2215 in Oklahoma would require anyone applying for a marriage license to report if they have undergone sex reassignment surgery (SRS). If so, the printed marriage licenses “shall state which party has undergone the surgery.” The bill serves no purpose beyond leaving a permanent record of someone’s surgical transition on a court document.

Lawmakers in Tennessee have also tried to place obstacles in the path of trans people who wish to marry. HB 2600 would define a “husband” as a “natural-born male” and a wife as a “natural-born female” according to their original birth certificates. Tennessee is one of just four states that will not change the sex listed on someone’s birth certificate under any circumstances, even if they have undergone SRS.

When combined with Tennessee lawmakers’ recent attempt to defy the Supreme Court and ban same-sex marriage statewide, HB 2600 may be intended to ban even straight transgender people from marrying.

Marriage is, optimistically, a once-in-a-lifetime event but peeing happens every day. And if South Dakota Gov. Dennis Daugaard signs the bill on his desk, his will become the first state to outlaw trans students from using restrooms that match their gender.

South Dakota’s “bathroom bill,” HB 1008, defines “biological sex” as the “physical condition of being male or female as determined by a person’s chromosomes and anatomy as identified at birth.” Never mind the facts that medical transition physically changes sex characteristics, chromosomes do not always correspond neatly to categories of male and female, and a small percentage of live births cannot receive a sex assignment based on anatomy alone.

There have also been zero reported instances of transgender people harassing or assaulting non-transgender people in restrooms—a fact that proponents of “bathroom bills” conveniently ignore in order to paint the legislation as a protective measure for women and girls.

In Washington state, a slate of recent bills have also targeted transgender peoples’ right to access public facilities. HB 2782, for example, would have required residents to have “male deoxyribonucleic acid” to access men’s restrooms, locker rooms, and saunas. “Female deoxyribonucleic acid,” of course, would be required to enter women’s facilities. Fortunately, the bill died before it could even get out of committee.

If passed, HB 2782 would have technically barred transgender women from the women’s room even if they had vaginas and transgender men from the men’s room even if they had penises. Worse, it fundamentally misunderstood the complexities of sex assignment. Women with complete androgen insensitivity syndrome (CAIS), for instance, have both a Y chromosome and a vagina. Where would they have peed? Who would have conducted the DNA testing?

But anti-LGBT legislators don’t seem to know much for science, as evidenced by new language that they are inserting into bills like South Dakota’s HB 1107, which would allow anyone to discriminate against trans people if they have a “religious belief or moral conviction” that “the terms male or man and female or woman refer to distinct and immutable biological sexes that are determined by anatomy and genetics by the time of birth.”

Once again: Biological sex characteristics can be changed with hormones and surgery; most people, transgender or otherwise, never undergo genetic testing; anatomy is sometimes insufficient for sex determination; and there are plenty of cases in which the comfortingly neat lines between male and female are not “distinct.” Not believing in that is tantamount to thinking that the Earth is flat.

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Added together, the effects of this wave of state-level legislation would be devastating for a minority that already suffers from alarmingly high rates of suicide and violence.

Transgender people would be denied transition-related health care even though most major medical associations recognize it as medically necessary. They would be unable to marry freely. They would be forced to use incorrect and possibly unsafe bathrooms based solely on myths about transgender sex predators. They would never be able to change their birth certificates, even if they underwent sex reassignment surgery. And they could be discriminated against, legally, by anyone who doesn’t believe in their existence.

That’s not protecting religious freedom. It’s a coordinated attack on a minority that needs protection now more than ever.