Trans rights

A grounding in the queer history of the legal system in the United Kingdom reveals striking parallels between the moral panic leading to the enactment of Section 28 of the Local Government Act 1988, and the current moment’s discourse surrounding the inclusion of transgender people in social spaces and their potential right to self-identification of gender in law. Through use of moral panic theory, this article examines and contextualizes the historical forces at play in the formation of laws around queer and trans lives in the UK, and in particular the instrumentalization of fears over the safety of children and cisgender women. The article also provides a practical example of the influence of the trans moral panic on law reform, by evaluating the debate surrounding the Gender Recognition Reform (Scotland) Bill 2022. It concludes that there is no ‘gender crisis’ in the UK, but there are powerful social forces at work to stoke a moral panic and, in doing so, stigmatize and alienate trans people in a similar manner to the stigmatization of homosexuality as an illegitimate way of life under Section 28.

Racism is foundational to reproductive control, and the United States eugenics movement shared and inspired much of the Nazi philosophy of “racial hygiene” that sought to maintain the dominance and “purity” of the white race. Today’s conservative reproductive agenda is little more than racial hygiene’s modern iteration.

Transgender people pose a grave threat to this agenda, because they resist the idea that women are defined by an innate female essence rooted in reproductive biology, and that being mothers is, therefore, their nature and destiny. If someone born with ovaries and a uterus can escape the call of motherhood and if someone born without can be a woman, the white supremacist message falls apart. If gender is “just a feeling,” as some conservatives put it, then how can we say that women’s purpose is to bear and raise children? If people can “mess with” their reproductive organs, how can reproduction be the pinnacle of human life? Gender-affirming care poses a challenge to the reproductive imperative. It must be suppressed to sustain white supremacy, or, in the words of Conservative Political Action Conference speaker Michael Knowles: “For the good of society … transgenderism must be eradicated from public life entirely.”

By rigidly policing gender norms and sexuality, anti-trans legislation reinforces the message that the proper and natural role of women is to bear children within a nuclear, heterosexual marriage. That is why the same bills that would ban gender-affirming care expressly allow nonconsensual surgeries on intersex newborns, because those interventions reinforce rather than undermine gender essentialism.

To white conservatives, womanhood is rooted in the reproductive body, and its achievement is motherhood. That message, in turn, serves to encourage reproduction with the aim of maintaining white demographic dominance. In other words, transphobia is a by-product of misogyny, which is a corollary of white supremacy. Anti-trans laws trace their roots back to racism.

More Americans now say they favor or strongly favor laws and policies that:

• Ban health care professionals from providing care related to gender transitions for minors (up 10 percentage points)
• Require trans athletes to compete on teams that match their sex at birth (up 8 points)
• Require trans people to use public bathrooms that match their sex at birth (up 8 points)
• Make it illegal for public school districts to teach about gender identity in elementary schools (up 6 points)

At the same time, fewer Americans now express support for laws and policies that:

• Protect trans people from discrimination (down 8 points since 2022)
• Require health insurance companies to cover medical care for gender transitions (down 5 points)
   

The 85-year-old self-described conservative had been invited by his grandson to a public hearing on a Republican-authored bill that would ban gender-affirming medical care for transgender youth in the state. He decided to make the short drive from his home in Milwaukee. 

[…]

For hours, Jones listened to the stories of kids who wanted to transition and said it seemed like “their brain was tearing them apart.” He now believes the decision to receive gender-affirming care should involve a child, a qualified doctor and a parent — not lawmakers. He likened the issue to lawmakers banning doctors from providing abortions.

[…]

Jones said a 14-year-old transgender teen — one of the youngest speakers who advocated for their right to go on hormones — helped to change his perspective at the hearing. In their testimony, they shared that they had recently contemplated suicide.

“I started to listen to this kid, and it wasn’t some kind of whim or something like that. This kid was actually suffering,” Jones said. “And I thought to myself, nobody has to do that. You’re only a kid.”

The GOP-controlled committee voted to advance the bill. Republican lawmakers in the Assembly passed it last week.

“Children are not allowed to get tattoos, sign contracts, get married, or smoke — so why would we allow them to physically change their gender?” Rep. Tyler August, R-Walworth, said in a statement.

Jones had a different take.

“All of these kids, they deserve a chance to see where they belong,” he said.

There are two significant problems with using gametes to define sex. First, no one checks gametes at the moment of sex assignment, let alone at conception (when they don’t yet exist). They are not observable. To base sex assignment on gametes is therefore to rely on an imperceptible dimension of sex when observation remains the principal way sex is assigned. Second, most biologists agree that neither biological determinism nor biological reductionism provides an adequate account of sex determination and development. As the Society for the Study of Evolution explains in a letter published on 5 February, the ‘scientific consensus’ defines sex in humans as a ‘biological construct that relies on a combination of chromosomes, hormonal balances, and the resulting expression of gonads, external genitalia and secondary sex characteristics. There is variation in all these biological attributes that make up sex.’ They remind us that ‘sex and gender result from the interplay of genetics and environment. Such diversity is a hallmark of biological species, including humans.’ Interplay, interaction, co-construction are concepts widely used in the biological sciences. And, in turn, the biological sciences have made considerable contributions to gender theory, where Anne Fausto-Sterling, for example, has long argued that biology interacts with cultural and historical processes to produce different ways of naming and living gender.

The language of ‘immutability’ belongs more properly to a natural law tradition in which male and female kinds are established by divine will and so belong to a version of creationism. They are immutable features of the human, as Pope Francis has affirmed. Trump speaks in the name of science, but the cameo appearance of the gamete theory notwithstanding, he does so effectively to insist that God decreed the immutable character of the two sexes, and that he, Trump, is decreeing it once more, either to echo the word of God, or to represent his own word as the word of God. Religious doctrine cannot serve as the basis for scientific research or state policy. But that what is happening in this executive order.

[…]

When authoritarians promise a return to an imaginary past, they stoke a furious nostalgia in those who have no better way to understand what is actually undermining their sense of a durable and meaningful future. We find this in the discourse of the AfD in Germany, the Fratelli d’Italia, Bolsonaro’s followers in Brazil, Trump, Orbán and Putin. But we also see the anti-gender animus among centrists hoping to recruit support from the right in order to stay in power. When diversity, equity and inclusion become ‘threats’ to the order of society, progressive politics in general is held responsible for every social ill. The result, as we have seen in recent years, can be that popular support ushers in authoritarian powers who promise to strip rights from the most vulnerable people in the name of saving the nation, the natural order, the family, society, or civilisation itself. Ideals of constitutional democracy and political freedom are regarded as dispensable in the course of such campaigns, since the preservation of the nation must be put before all else: it is a matter of self-defence.

In the early 1950s, a moral panic over gay people swept across America. LGBTQ+ individuals were cast as threats—vulnerable to blackmail, labeled “deviant sex perverts,” and accused of colluding with communist governments. Senator Joseph McCarthy, infamous for the Red Scare, pressured President Eisenhower into signing an executive order purging LGBTQ+ people from government service. With that signature, the campaign escalated rapidly—up to 10,000 federal employees were fired or forced to resign during what became known as the Lavender Scare, a far less taught but even more devastating purge than the Red Scare. The episode remains a lasting stain on U.S. history. And now, it appears we are witnessing its revival: 100 intelligence officials were just fired for participating in an LGBTQ+ support group chat—an internal network not unlike employee resource groups (ERGs) at most companies.

The firings stem from out-of-context chat logs leaked by far-right commentator Chris Rufo on Monday. Sources tell Erin in the Morning that the chat functioned as an ERG-adjacent LGBTQ+ safe space, where participants discussed topics like gender-affirming surgery, hormone therapy, workplace LGBTQ+ policies, and broader queer issues. Rufo, however, framed these conversations as evidence of misconduct, claiming that “NSA, CIA, and DIA employees discuss genital castration” and alleging discussions of “fetishes, kink, and sex.” To Rufo and his audience, merely talking about being transgender and the realities of transition is enough to be labeled “fetish” content.

Eisenhower and McCarthy would have killed for such an easily accessible list of LGBTQ+ federal employees—and the flimsy pretext to purge them.

Within a day of the chat logs’ release, Director of National Intelligence Tulsi Gabbard announced that all participants in the “obscene, pornographic, and sexually explicit” chatroom would be terminated.

A useful explainer for bewildered relatives, etc.:

Clear definitions of categories matter in the law. The use of two sex categories to talk about a species is standard in biology. In many animal species, including people, however, there are individuals who are neither male nor female or who are sometimes both. In other species, there are two sexes, but they aren’t male and female (usually these are intersex and male). And a few species have only one sex (usually female). The biological reality is that “male” and “female” are not universal immutable biological classifications but rather descriptions of typical patterns in reproductive biology. These categories, male and female, are used by biologists who fully understand that they rarely represent all the relevant biological variation in any given species or identical sets of variation across different species.

Sex is not one single, simple, uniform biological reality. Thus, biology cannot be invoked as a basis for such in legal terms. That’s the bottom line.

Of course, men and women are not the same, and reproductive biology does structure important aspects of human bodies and lives. But none of the key biological systems associated with sex in humans (chromosomes, gonads, genetics, hormones, and so on) come exclusively in two “immutable” categories. Yes, most humans have either XX or XY chromosomes, but as Judge Reyes noted, some don’t. People with either testes or ovaries are most common, but some people have both, and a few have ovotestes. Usually those with testes can produce sperm, and those with ovaries produce ova—but not always. The chromosomes one has do not always predict one’s gonads or one’s genitals or even all the elements of one’s reproductive tract. It is true that most people have the “typical” combo of chromosomes, gonad and genitals, yet there are tens of millions of people alive right now who don’t. These people are not errors, aberrations or problems; they are a part of the range of variation in our species. They are all real people. In fact, many who have these variations don’t even know it. You might be one of them.

In making laws, then, we need to recognize what the actual range of variation in sex-related biology is and how it maps across everyone.

The CDC’s move to comply with Trump’s executive order is not just an attack on transgender inclusion—it is a fundamental assault on evidence-based policymaking. Public health data drives funding allocations, legislative protections, and medical advancements. Without accurate data on transgender individuals, lawmakers and health officials will be unable to craft policies that address the unique challenges faced by the trans community.

For transgender individuals, this erasure from federal data is more than an administrative slight—it is a direct threat to their health, safety, and survival. Without demographic representation, there will be fewer initiatives tailored to trans healthcare needs, fewer resources allocated for trans youth mental health programs, and fewer protections against discrimination in medical settings.

“This is an attempt to legislate us out of existence,” said a transgender activist who wished to remain anonymous. “They are trying to make it so that we don’t ‘exist’ in public data, and if we don’t exist in the data, we don’t exist in policy. If we don’t exist in policy, we don’t get protections. And if we don’t get protections, they are making us more vulnerable.”

The document, titled “Guidance for Visa Adjudicators on Executive Order 14201: ‘Keeping Men Out of Women’s Sports,’” is ostensibly focused on preventing transgender athletes from traveling to the U.S. However, one section appears to apply far more broadly, targeting all transgender visa applicants—not just athletes. It mandates that “all visas must reflect an applicant’s sex at birth” and grants officials the authority to deny visas based on “reasonable suspicion” of a person’s transgender identity.

“Both immigrant and nonimmigrant visa applications request that an applicant identify their sex as either male or female. Moreover, all visas must reflect an applicant’s sex at birth,” the cable reads. When verifying an applicant’s sex assigned at birth, it states that the adjudicator can “rely on documents provided by the applicant,” but that “if other evidence casts reasonable doubt on the applicant’s sex, you should refuse the case under 221(g) and request additional evidence to demonstrate sex at birth.”

The memo goes on to state that applicants “misrepresenting their purpose of travel or sex” could be targeted for permanent ineligibility. It states that some common scenarios that would trigger this is if the misrepresentation is “material,” which it states would be the case for transgender athletes entering for an athletic competition. However, even this section does not limit it to transgender athletes - many other reasons for entry may be considered “material” for transgender entrants… for instance, transgender activists, immigrants fleeing oppressive regimes, and more could be swept up under this provision.

Around the world, gender-restrictive actors are organising to suppress gender-equality in schools. ALIGN’s review of the latest evidence reveals that anti-gender backlash in education is taking place from contexts as diverse as Afghanistan, Chile, Indonesia, Kenya, Pakistan, South Africa, Uganda, the US.

This ALIGN Report focuses on the activities of gender-restrictive actors and organisations who seek to promote a narrow vision of gender relations through the education system. The research shows that their influence is expanding efforts to entrench patriarchal social norms and a binary view of gender, and gaining ground across the globe.

Common aims and tactics include: to remove comprehensive sexuality education from schools, restrict girls access to learning, reinforce patriarchal gender stereotypes in textbooks and reject gender-inclusive policies in school environments. These groups are sustained by deep financial networks which drive effective strategies to amplify misinformation, provoke parental protests, and impose traditional family values.