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Statewide View: ‘Anti-trans … laws are solutions to problems that do not exist’

As transgender people’s rights have been debated and then eliminated at the state level, trans people themselves have become dehumanized and their status erased.

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Ellen J. Kennedy
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Recently, a Minnesota lawyer who is a trans woman said, “People are trying to erase us from existence.” That is exactly what is happening.

For the last two years, I have team-taught a class at Mitchell Hamline School of Law in St. Paul on the rights and challenges of transgender people locally and globally. It’s possibly the only law-school course in the country with an exclusive focus on trans issues. This year we have 17 students who will soon join the legal profession as advocates for trans people.

There are slightly more than 1 million transgender adults amidst the U.S. population of 330 million people: less than 1% of the population. Yet there are more than 300 anti-LGBTQ bills in state legislatures to limit the lives of transgender people: to prohibit their access to medical treatment and to criminalize those who provide it, to prohibit trans people’s participation on sports teams congruent with their gender identity, to prohibit changes in gender and name identifiers on official documents, to exclude trans people from public facilities, to prohibit their purchase of goods and services from the open marketplace, to ban employment in certain industries, to bar fair treatment in the criminal justice system, to disregard personal dignity in health care, to prohibit trans people from parenting and adoption, and more.

Why is this happening? And why now?

In 2010, the elimination of the “Don’t Ask, Don’t Tell” provision in the military allowed gay people to serve openly. In 2015, the landmark Obergefell v. Hodges Supreme Court decision legalized gay marriage in the U.S. And in 2020, the Supreme Court decision in Bostock v. Clayton County held that Title VII of the 1964 Civil Rights Act protects gay or transgender employees against discrimination.

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The anti-trans movement appears to be a backlash to these rights. On Inauguration Day in 2017, the administration of President Donald Trump removed all mention of LGBTQ people from the websites of the White House, Department of State, and Department of Labor. This began a four-year "erasure" of LGBTQ people's legal protections against discrimination, especially protections for trans people.

The administration of President Joe Biden halted this erasure and took steps to replace, enhance, and advance trans rights.

State legislatures responded with drastic measures to oppose federal protections.

As transgender people’s rights have been debated and then eliminated at the state level, trans people themselves have become dehumanized and their status erased. In fact, the Associated Press reported on April 1 that Arizona Gov. Doug Ducey refused to say whether transgender people even exist. He dodged questions on the subject a day after signing legislation limiting transgender rights.

This dehumanization leads to bullying and violence, including a record number of murders of trans people. The American Medical Association urges an end to what Forbes called in June 2019 "the epidemic of violence against the transgender community, especially the physical dangers faced by transgender people of color."

This year’s most frequently occurring anti-trans bills exclude trans women and girls from female sports teams. A March 2021 article in Scientific American offered four noteworthy facts on this.

One, the vast majority of female athletes are cisgender, meaning their gender conforms with the identity they were assigned at birth, as are the vast majority of competition winners. There is no epidemic of transgender girls dominating female sports. In a recent, highly publicized lawsuit, Soule v. Connecticut Association of Schools, three high school female athletes sued their school district for allowing two trans women to run in girls’ track competitions. The three plaintiffs maintained they couldn’t win against “biological males” and would lose scholarships and trophies. Two days after the suit was filed, however, one plaintiff won a big event — and then she won again six days later. The judge dismissed the suit, but it spawned state-level legislation across the country to keep trans girls out of girls’ sports.

Two, policies permitting transgender athletes to play on teams that match their gender identity are not new. The Olympics have had trans-inclusive policies since 2004.

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Three, testosterone does not always equal an advantage. The notion that transgender girls have an unfair advantage comes from the idea that testosterone causes an increase in muscle mass. But transgender girls are not the only girls with high testosterone levels. An estimated 10% of women have polycystic ovarian syndrome, which creates elevated testosterone levels. They are not banned from female sports. Plus, studies of testosterone levels in athletes show no consistent relationship between testosterone and athletic performance.

And four, claiming that transgender girls have an unfair advantage in sports neglects that they often suffer from higher rates of bullying, anxiety, depression , homelessness, and poverty, making it more difficult for them to train and compete, explaining why there are so few transgender athletes in collegiate sports and the Olympics.

Although facts make it clear there is no reason to exclude trans girls and women from women’s sports, facts apparently don’t matter. False assumptions carry the day, including that all girls and women are physically inferior compared with all boys and men; that sex assigned at birth is immutable; that genitals, hormones, and chromosomes alone provide valid identity; and that women’s sports need to be “protected” from transgender athletes.

Anti-trans state sports laws are solutions to problems that do not exist. There are almost no trans girls on girls’ sports teams; yet there are laws forbidding their participation in 12 states, with legislation likely in another eight states. This issue is a lightning rod for hate.

Legislation also would restrict gender-affirming health care for trans and nonbinary youth. The leading medical organizations — namely the American Medical Association , the American Academy of Pediatrics , and the American Psychological Association — say these restrictions put the wellbeing of young people at grave risk.

Experts who spoke to our law students said that Minnesota Republicans, even those with family members who identify as LGBTQ, will never support legislation to affirm rights of this persecuted minority and that they will choose instead a party platform of exclusion, despite their own personal beliefs.

We must stand instead against the erasure of human beings.

Ellen J. Kennedy is executive director of World Without Genocide at the Mitchell Hamline School of Law in St. Paul. She wrote this for the News Tribune.

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Young woman waving lgbti flag
Picture of a young woman waving LGBTI flag under the sky.
Cristina Moliner/Getty Images/iStockphoto

Related Topics: GENDER EQUALITY
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