Transgender Legal Battles: A Timeline - JSTOR Daily

Transgender Legal Battles: A Timeline - JSTOR Daily
By: Transgender Posted On: May 12, 2022 View: 105

Transgender Legal Battles: A Timeline - JSTOR Daily

In 1952, Christine Jorgensen stepped off of a plane from Denmark, where she had received groundbreaking medical care and had grown into herself as a “blonde beauty,” as the New York Daily News declared upon her return to the United States. By most accounts, she was accepted whole-heartedly into mainstream society and fawned upon as an ideal feminine figure, a somewhat unexpected response to the first well-known transgender woman in the country. In a 2011 article in Feminist Studies, historian Emily Skidmore argues that Christine Jorgensen’s success stemmed from her ability to uphold cultural norms of whiteness and femininity, both by playing the part expected of her, and rejecting any associations with “sex deviates” such as gay men, or transgender women without access to sex reassignment surgeries. Ironically, the first key congressional mention of gender identity came almost sixteen years later in 1968, during a hearing of the House of Representatives Committee on Appropriations in which Dr. Stanley F. Yolles, director of the National Institute of Mental Health, described the use of federal funds to study and treat these same “sex deviates”.

The contrast between the experience of Christine Jorgensen and other lesbian, gay, bisexual, and transgender (LGBT) people in the 1950s and 60s—who were routinely discriminated against, harassed, and arrested—emphasizes the way that legislation is designed to enforce heteronormative gender roles and expectations. At the time, legislation was still focused on the criminalization of homosexuality through “gay behavior” in the bedroom and otherwise, with violent police harassment in private and public settings. Political campaigns at the time depicted gay people as dangerous and harmful, and enforcement of laws designed to control and oppress them disproportionately affected gender non-conforming people over those who “passed” as straight. Arrests of effeminate gay men, butch lesbians, low-income transgender women, “street queens,” and other gender non-conforming people were commonplace under laws that criminalized dressing or behaving in a way that the police officers deemed inappropriate for someone of a certain sex.

Both public opinion at the time and anti-LGBT legislation hinged upon the the belief that people could verify another’s gender identity through real or hypothetical cues, or “determine gender,” as researchers Laurel Westbrook and Kristen Schilt term it in their 2014 Gender and Society article. During this process, individuals use visual cues such as facial hair and clothing as proxies for biological validation of one’s sex, and when such cues conflict or become ambiguous, it may “create an interactional breakdown, generating anxiety, concern, and even anger.” This provides an incentive for cisgender people, whose own internal concept of their gender identity (as a man or woman) aligns with the sex they were assigned by a doctor at birth (male or female), to maintain and enforce a system in which “heterosexuality is positioned as the only natural and desirable sexual form.” On the other side of the same coin that allowed Christine Jorgensen to be accepted, there are implied and explicit forms of violence against people who do not fit neatly into heteronormative gender and sexuality boxes, with a harsher consequences for non-white or lower income communities.

In June 1969, patrons at a dodgy New York City gay bar called the Stonewall Inn began to fight back, creating a scene during a routine police raid of the premises. An event that purportedly started with a butch woman resisting arrest soon drew a crowd and turned into a six-day rebellion that would become a catalyst for gay rights movements around the country. Notably, the Stonewall Uprising was only one of a series of backlashes against inhumane police treatment of gay bar clientele at the time, including raids of Compton’s Cafeteria in San Francisco and the Black Cat Tavern in Los Angeles, but the context around the Stonewall Uprising in particular situated it as notable and memorable, allowing it to live on in historical accounts as the spark for gay liberation. On the first anniversary of Stonewall, the first gay liberation marches were held in New York City, San Francisco, and Los Angeles, to commemorate the event. Those annual celebrations were the foundation for today’s pride parades and festivals, held across the country in the summer months.

Despite these instances of protest and growing resistance, legislative progress lagged for nearly three more decades. While arrests for “cross-dressing” tapered off, police found new ways to use “sodomy laws,” which outlawed certain types of sexual conduct, to harass and arrest gay people. Although many of these laws applied to straight–and even married–couples, they were focusing on LGBT circles, as a way to continue policing proper gender roles and identities. In 1982, 27-year-old bartender Michael Hardwick was arrested in Georgia for consensual sex in his own bedroom, after a police officer entered his house on a false warrant. The district attorney chose not to prosecute the case, but Hardwick and the American Civil Liberties Union (ACLU) took the Bowers v. Hardwick case to the federal courts, until ultimately, the Supreme Court ruled that the sodomy law in question was constitutional and allowed to stand, along with existing sodomy laws in 24 other states. These laws slowly toppled over time, but 14 states still criminalized sodomy when Bowers v. Hardwick was overturned by Lawrence v. Texas in 2003, after police entered John Lawrence’s apartment on a false report of a weapon on the premises and found him engaged in so-called “homosexual conduct” with Tyron Garner.

Other legislation in the 1990s and early 2000s restricted financial means and support of the LGBT community, allowing discrimination against “transvestites” in housing and disability coverage, and criticizing use of funds toward LGBT art and film. In 1996, Bill Clinton signed the Defense of Marriage Act (DOMA), invalidating any marriage between individuals of the same sex and enacting officially for the purposes of federal law, definitions of both “marriage” and “spouse” to avoid any interpretive gray area. Simultaneously, and in contrast to restrictive laws being created, the plight and suffering of LGBT people began to enter the public and legislative arena. In 1998, Representative Tom Lantos of California, Holocaust survivor and human rights champion, stood before Congress and urged them to fight for the fair treatment of LGBT people globally. He argued, eloquently, in his opening statement,

Whatever our views on our own domestic laws, Mr. Speaker, the Caucus and all Members of Congress should be standing together in decrying the persecution of individuals and the denial of human rights for any reason, including sexual orientation. … Gay, lesbian, bisexual, and transgendered people in communities all around the world have been brutally punished both physically and mentally for exercising their fundamental human rights to freedom of speech, freedom of association, and freedom of belief. Mr. Speaker, these violations fall squarely within the scope of international human rights laws.

Just two months after Tom Lantos called attention to the suffering of LGBT people in other areas of the world, the disfigured, nearly lifeless body of Matthew Shepard, a gay college student, was discovered by a kid in Laramie, Wyoming. Matthew Shepard passed away in the hospital six days later, without waking from an injury-induced coma, and his death triggered a large-scale change in the public opinion of gay people and hate crime legislation. Awareness of the unfair treatment of LGBT individuals continued to grow in the 2000s, and in 2009, forty years after the original Stonewall Uprising, President Barack Obama designated June as LGBT Pride Month. That same year, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act amended the wording of the Federal Hate Crimes Law to include crimes based on real or perceived sexual orientation, gender, gender identity, or disability.

As the legislative landscape moved toward prohibiting explicit discrimination against LGBT people in the bedroom, the workforce, the military, and the nation’s schools, the social and legal system maintaining the heterosexual status quo of sex, gender, and sexuality began to lose control. The Obama Administration (2009-2017) was marked by the push and pull of progressive laws allowing more freedoms for LGBT Americans alongside restrictive laws with a new focus on controlling the lives of gender non-conforming youth. In stark juxtaposition, laws benefiting transgender adults passed as waves of attacks on transgender kids were introduced. The passing of the School Success and Opportunity Act in California, allowing students to participate in programs and use facilities consistent with their gender identity, regardless of sex assigned at birth, was quickly followed by the first proposed “bathroom bill” in Arizona, criminalizing use of facilities that did not align with one’s sex assigned at birth. Although this bill in Arizona ultimately failed, it set the precedent for a series of similar bills in other states.

In 2018, the first bills were introduced in New Hampshire explicitly prohibiting insurance coverage and performance of gender-affirming healthcare–such as hormone replacement treatment (HRT), puberty blockers, and “sex reassignment surgeries”–for transgender youth. Simultaneously, the world-wide discussion around sex enforcement in women’s sports, which had previously focused on testing endogenous testosterone levels in cisgender women, refocused onto banning transgender women and girls from participation. In 2019, Georgia introduced the first bill designed to limit the participation of athletes, specifically youth, in sports based on biological sex. In the following years, attempted legal restrictions on gender-affirming healthcare and participation in sports would soar, reaching highs of 34 and 67 introduced bills, respectively, in 2021. So far in 2022, bills have been introduced in Florida and passed the House in Idaho that would criminally prosecute any medical providers who provide gender-affirming care. Texas has gone so far as to introduce a bill that classifies the acceptance and affirmation of transgender children as child abuse and criminalizes parents who support a child’s.

With the focus on controlling the ability of transgender youth to express or affirm their identities through healthcare, participation in activities, or acceptance from adults in their lives, the pertinent question becomes: why do these issues warrant such strict restrictions on the affirmation and validation of transgender children and youth? Is it truly harmful or dangerous to do so, either for the transgender youth or their cisgender peers? 

Proponents of laws restricting gender-affirming care access generally cite concerns that children are too young to understand their own gender and the implications of taking hormones or undergoing surgery, or that they will come to accept their gender identity as aligning with their sex assigned at birth and will regret transitioning. For example, in a 2017 article in The New Atlantis, a journal funded by a conservative advocacy group and not peer reviewed, lead author Paul Hruz and colleagues argue that the disruption of puberty, even when temporary, may be harmful, because “gender identity is shaped during puberty and adolescence as young people’s bodies become more sexually differentiated and mature”. The authors find this especially relevant in the context of scientific unknowns and conflicting findings on the outcomes of gender non-conforming children; although most adolescents that experience gender dysphoria continue to report these feelings through adulthood, the same finding does not hold up for young children under 12 who express discomfort with their assigned sex or gender role.

On the contrary, S Giordano argues that failing to delay puberty for transgender children has the potential to harm children equally, or more. Blocking puberty allows children to alleviate the distress of gender dysphoria while allowing them the time to consider whether they want to continue with a medical transition. In his 2008 article in the Journal for Medical Ethics, he describes, “if the child does not wish to transition, puberty suppressant drugs can be withheld and development restarts as normal. If the child decides to change sex, transition is much smoother if puberty has been arrested.” Giordano further concludes,

If allowing puberty to progress appears likely to harm the child, puberty should be suspended. There is nothing unethical with interfering with spontaneous development, when spontaneous development causes great harm to the child. Indeed, it is unethical to let children suffer, when their suffering can be alleviated.

Although they ultimately disagree on the path forward, both authors acknowledge that transgender populations are particularly vulnerable to anxiety, depression, and suicidal ideation–making improved care an important public health issue. The most recent, large-scale survey of transgender adults in the United States found that 81.7 percent of respondents had seriously considered suicide in their lifetimes, and the surveyed population had a past-year prevalence of suicide attempts 18 times higher than the general US population. In addition, the study identified unique risk factors for transgender populations, concluding,

It’s clear that minority stress experiences, such as family rejection, discrimination experiences, and lack of access to gender affirming health care, create added risks for transgender people. Furthermore, the cumulative effect of experiencing multiple minority stressors is associated with dramatically higher prevalence of suicidality.

Notably, this 2019 research report by the Williams Institute also emphasized factors that were associated with a lower risk of suicidal ideation and attempt for respondents, including supportive family, access to hormone therapy and/or surgical care, and the presence of gender identity nondiscrimination statutes. A more recent research report published by the same group indicated that gender-affirming medical care, including pubertal suppression treatment, is recommended and supported as evidence-based patient care for transgender youth by several large-scale pediatric and psychiatric organizations, as it improves overall mental and physical health. Similarly, the World Professional Association for Transgender Health (WPATH) guidelines for providing the highest standards of care, which are “based on the best available science and expert professional consensus,” ultimately stress that “withholding puberty suppression and subsequent feminizing or masculinizing hormone therapy is not a neutral option for adolescents.” These reports arrive at an understanding that recognizes knowledge gaps in current scientific evidence and the potential risks of treatments, while accounting for the known risks of denying or delaying care to transgender youth and adults.

Research in the Human Diversity Lab led by Kristina Olson, currently at Princeton University, has shown that the development of transgender children and their understanding of their gender matches cisgender children with the same gender identity, rather than sex assigned at birth. In a 2015 paper published in Psychological Science, they conclude, “transgender children show responses that look largely indistinguishable from those of cisgender children, who match transgender children’s gender expression on both more- and less-controllable measures.” The group further found in a 2019 study, published in PNAS, that gender identity of transgender children is “self-socialized” based on observations in all facets of their lives, rather than socialized based on how they are treated at home. They note,

Transgender children’s gender development does not appear to show lingering impact of early sex-assignment or sex-specific socialization. That is, a 10-y-old transgender girl who was labeled a boy at birth and raised for 9 y as a boy, a 10-y-old transgender girl who was labeled a boy at birth and raised for 5 y as a boy, and a 10-y-old cisgender girl … who was labeled a girl at birth and was raised for 10 y as a girl did not significantly differ in their identification and preferences…. These findings therefore provide preliminary evidence that neither sex assignment at birth nor direct or indirect sex-specific socialization and expectations … necessarily define how a child later identifies or expresses their gender.

In light of these findings and the many unanswered questions about gender development and outcomes of care in youth, researchers have developed the “gender affirmative model” of care, which advocates for “listen[ing] to the child and decipher[ing] with the help of parents or caregivers what the child is communicating about both gender identity and gender expressions.” In this model, children are supported through the process of exploring their gender expression as they mature, and ultimately, making informed decisions about their care at appropriate ages.

Overall, research relating to physical and mental health outcomes in transgender youth indicates that rejection by family and community predicts negative outcomes, and that positive support from family, friends, and community protects youth and predicts positive outcomes. Current legislation restricting access of transgender youth to activities and facilities consistent with their gender identity, prohibiting gender-affirming care, and criminalizing family support functionally confines them in all aspects of their lives. Together, these sets of legislation would prohibit both social and medical transition for transgender youth to live and express themselves in a way that is consistent with their gender identity. As Laurel Westbrook and Kristen Schilt described, attempts to police participation in sex-segregated spaces and deny support to transgender people are designed to “uphold the logic of gender segregation” and “reassert the naturalness of a male-female binary”, which averts and subdues any panic or uncertainty around determining where transgender and gender non-conforming people fit into this system.

Through this lens, new waves of laws allowing discrimination and controlling access to social support for transgender youth may be reinventions of the cross-dressing and sodomy laws that enforced heterosexual and cisgender norms of behavior. As society struggles to reinforce a rigid gender binary in the face of growing dissent, the battle lines are formed by the lives, bodies, and health of transgender youth–all while their voices often go unheard.


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