States move to criminalize transgender people for simply existing
Lawmakers across the country have filed hundreds of pieces of anti-transgender legislation for the 2023 session, setting out to further marginalize a community of people who already faced a year of unprecedented violence and threats to their existence.
While the media often portrays the anti-LGBTQ+ mission of America’s rightwing elements as part of a “culture war,” some members of the community, allies, and activists argue that it is best described as a (state) government-sponsored genocide—far from a nebulous battle of ideas and values. Depending on what state one lives in, various expressions of LGBTQ+ identity are actively being legislated out of existence and criminalized. Transgender individuals, in particular, are being stripped of rights at an alarming rate by lawmakers beholden to rightwing propaganda campaigns. Working in concert—either intentionally or unintentionally—with far-right extremists, this combination amounts to a coordinated attempt to eradicate the transgender community from wide swaths of the nation.
Gender affirming care
Definition: Gender-affirming care is a model of care which includes a spectrum of “social, psychological, behavioral or medical (including hormonal treatment or surgery) interventions designed to support and affirm an individual’s gender identity.”
One of the strongest examples of how anti-transgender laws can be considered a form of genocide are bills that ban gender affirming care. Pay special attention to part (b) in the following definition:
The United Nations Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as any “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”
Legislators in 37 states have filed bills that prohibit gender affirming care in various forms and for various age groups. If successful, their states will join the four that previously banned gender affirming care for minors.
These laws can be seen as “causing serious bodily or mental harm to members of the group,” given that gender-affirming care for transgender youth is proven to reduce odds of suicidality by 73%, according to one study.
- Bauer, et al., 2015: “…interventions to increase social inclusion and access to medical transition, and to reduce transphobia, have the potential to contribute to substantial reductions in the extremely high prevalences of suicide ideation and attempts within trans populations.”
- McNeil, et al., 2012: “Suicidal ideation and actual attempts reduced after transition, with 63% thinking about or attempting suicide more before they transitioned and only 3% thinking about or attempting suicide more post-transition.”
- de Vries, et al., 2014: “A clinical protocol of a multidisciplinary team with mental health professionals, physicians, and surgeons, including puberty suppression, followed by cross-sex hormones and gender reassignment surgery, provides gender dysphoric youth who seek gender reassignment from early puberty on, the opportunity to develop into well-functioning young adults…After gender reassignment, in young adulthood, the [gender dysphoria] was alleviated and psychological functioning had steadily improved. Well-being was similar to or better than same-age young adults from the general population. Improvements in psychological functioning were positively correlated with postsurgical subjective well-being.”
Prohibiting or criminalizing the most effective treatment for gender dysphoria will manufacture more suicides within the transgender community. Thus, by blocking life-saving healthcare, these policies cause “serious bodily or mental harm” to members of the transgender and non-binary community.
Furthermore, by banning gender-affirming treatment—in some cases far into adulthood—legislators are attempting to erase transgender individuals from existence. Not only will transgender people be prevented from accessing safe healthcare, but those who fall in the prohibited age range will also be forced to de-transition.
“Already, transgender youth who are not allowed to transition attempt suicide at a much higher rate,” wrote transgender activist Erin Reed in her newsletter. “Medical detransition will mean extremely distressing changes for trans youth, many of whom have lived as their gender for most of their lives… This is particularly cruel to transgender kids who have been receiving care for a long time and who are known as their gender by all of the peers and adults in their lives.”
- Oklahoma Senate Bill 129 would ban individuals under the age of 26 from accessing gender affirming healthcare.
- South Carolina House Bill 3730 would ban individuals under the age of 26 from accessing gender affirming healthcare.
- South Dakota House Bill 1080 is unique in not only banning gender affirming care for minors, but also ordering physicians to medically detransition trans youth in their care within the year.
- Among other states considering bills to ban gender affirming care for minors, Oklahoma leads with 32, followed by Missouri with 31, Texas with 28, Mississippi with 24, and Tennessee with 20—just a month into the 2023 legislative session.
Part (e) of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide is “forcibly transferring children of the group to another group.” At first glance, this may not seem to apply in the United States. However, several states are in the process of initiating laws that would charge parents of transgender children with child abuse for providing gender affirming healthcare to their kids. This would allow a judge to order the child taken from the parent’s custody, as first threatened by Texas officials.
In Spring 2022, Texas Gov. Greg Abbott (R) issued an order directing the Texas Department of Family and Protective Services (DFPS) to investigate gender-affirming medical care as child abuse. Had his directive not been blocked by the courts, it would have resulted in transgender and non-binary children being taken from their families and placed in the state’s underfunded foster system.
Child Welfare League of America: “Providing appropriate, compassionate medical care for your child is not child abuse. We know that youth who identify as LGBTQ are at greater risk of homelessness, substance use disorders, mental illness, suicide ideation and attempts, trauma, and other negative outcomes than their peers; the right to receive individualized, evidence-based, identity-affirming care from their doctors and other medical providers saves lives. With nearly 30,000 children in care in 2021, Texas DFPS needs to focus its limited resources protecting children from actual abuse and neglect, not investigating children and families who are vulnerable.”
Other states have attempted to pass legislation copying Abbott’s strategy of removing transgender minors from their parent’s custody through child abuse charges.
- In October, Michigan state Reps. Ryan Berman, Steve Carra, Luke Meerman, Beau LaFave, and Steve Marino—all Republicans—introduced a bill that would charge parents with first-degree child abuse for obtaining a “gender transition procedure” for their child.
- Tennessee’s state senate recently passed Senate Bill 1, which criminalizes parents who help their children obtain gender affirming care—even when they travel out of state to do so.
- Texas lawmakers introduced House Bill 672 to formalize Gov. Abbott’s child abuse directive. If this bill were to become law, parents who consent to gender affirming care would be engaging in “conduct that places a child in imminent danger.”
- Wyoming’s state senate passed Senate File 111 to criminalize parents who consent to gender affirming care for their child. The same week, Wyoming lawmakers killed a bill to raise the legal marriage age to 18 years old—meaning, 16 is old enough to marry but not old enough to obtain life-saving gender affirming healthcare.
Stages of genocide
Another way of thinking of genocides is the progression of events that lead up to the mass killing of victims. Gregory Stanton, a professor of genocidal studies and founder of Genocide Watch, developed a list of ten stages that can predict a genocide. His model is based on the Holocaust, the Rwandan genocide, and the Cambodian genocide.
Some stages fit what we’re seeing in the U.S. with LGBTQ+ rights better than others. This is to be expected, as the oppression of the community isn’t an organized nationwide phenomenon. Instead, certain states are chipping away at the rights of transgender and non-binary people incrementally, while other states increase protections for the LGBTQ+ community.
The stages that most clearly fit the current situation are related to media and propaganda: namely, the “Classification” and “Dehumanization” phases. These two stages in particular work in concert to give Americans permission to discriminate against LGBTQ+ individuals.
Definition: Division of “us” and “them”
Example: German and Jew, Hutu and Tutsi
Rightwing media has played a large role in creating stigma and delegitimizing LGBTQ+ individuals.
These rightwing campaigns have real legal consequences for transgender individuals. For example, a female student was assaulted by a male student in a skirt in a Loudoun County, Virginia, school bathroom. Rightwing media outlets like The Daily Wire and Fox News portrayed the attack as a result of trans-inclusive bathroom policies. In truth, however, the policies were not approved until months after the assault. Virginia Gov. Glenn Youngkin (R) then forced schools to ban transgender students from using bathrooms associated with their preferred gender.
Laws and regulations that deny access to public toilets by gender identity send the message that transgender people are somehow dangerous and need to be swept into segregated spaces. Nine states have introduced bathroom bills so far this year: Arizona, Arkansas, Connecticut, Idaho, Illinois, Kentucky, Minnesota, Nebraska, and North Dakota.
Definition: One group denies the humanity of the other group
Example: the Nazis referred to Jews as “vermin”
During this stage, the dominant power vilifies the targeted group, often using media to spread propaganda. The clearest and most dangerous example is the recent rightwing branding of the LGBTQ+ community and their allies as “groomers” and pedophiles. The tactic was used against Disney for the company’s opposition to Florida Gov. Ron DeSantis’ “Don’t Say Gay” bill; schools and libraries) that host Drag Queen Story Hour events; and hospitals that provide gender affirming care to minors.
The demonization of LGBTQ+ individuals and allies would not be possible without the cooperation of media outlets like Fox News. In a three-week period from March to April 2022, Fox News ran 170 segments on trans people, throughout which the network “repeatedly invoked the long-debunked myth that trans people pose a threat to minors and seek to groom them.” The vilifying and dehumanizing language used by hosts like Tucker Carlson works to incite violence against the LGBTQ+ community, inspiring self-invented heroes to avenge the imaginary harm to children they have been told is happening.
Unstable individuals watching the biggest cable news show in America can thus be inspired towards threats and violence. We saw this when Carlson amplified false claims against children’s hospitals for performing hysterectomies for trans youth (which, to be clear, was not true); the hospitals were then inundated with bomb threats.
After a full year of disseminating hate speech and anti-LGBTQ+ rhetoric, Carlson acted baffled as to why a man would shoot up an LGBTQ+ club in Colorado, adding that the tragedy was being used as a pretext to censor rightwing speech.
“These horrifying murders in Colorado over the weekend quickly became a pretext for yet more censorship of your speech,” Carlson said. “You are responsible for this, they told you, because you said the wrong thing.”
Carlson then accused the groups and individuals that he said were calling for “censorship” — in this case, the LGBTQ community and its allies — of engaging in, perpetuating, or suborning the “genital mutilation” and sexual abuse and exploitation of children.
Days later, Carlson had the founder of anti-trans group “Gays Against Groomers” on his show to declare that killing LGBTQ+ individuals would not stop “until we end this evil agenda that is attacking children.”
Rightwing media campaigns to smear drag queens for “sexualizing” children delegitimize a valid form of artistic expression and cast performers as a danger to society, comparing them to a category of criminal most likely to evoke revulsion and violence: pedophiles.
Republican lawmakers followed these cues, introducing 30 bills so far this year to limit or outright ban drag performances. The worst of this legislation is phrased vaguely enough to allow the criminalization of transgender people just for existing in public spaces.
- Montana House Bill 359 defines drag as “exhibit[ing] a gender identity that is different than the performer’s gender assigned at birth using clothing, makeup, or other physical markers and sings, lip syncs, dances, or otherwise performs for entertainment to appeal to a prurient interest.” Prurient means “having or encouraging an excessive interest in sexual matters.” Any business that hosts a drag performance is categorized as a sexually oriented business and may not allow a minor on its premises. Furthermore, the bill prohibits schools or libraries that receive state funding from hosting drag performances, like drag queen story hour events.
- The Tennessee Senate passed SB 3 last week, which declares that “male [and] female impersonators” are in the same “prurient” category as strippers. As currently worded, SB 3 would make being a “male or female impersonator”—something that could include simply existing as a transgender or non-binary person—on public property or in view of a minor a crime.
- West Virginia Senate Bill 253 makes it a crime for “male or female impersonators” to perform where they “could be viewed by a person who is a minor,” “regardless of whether or not performed for consideration.” The phrasing obviously allows transgender and non-binary individuals to be criminally charged for existing in any location where a child could potentially be present.