How Trump Could Attack Trans Rights

On Monday, Donald Trump announced that attorney Harmeet K. Dhillon would run the civil rights division of the Department of Justice. Dhillon has a reputation for being a rabid Trump loyalist — and a vitriolic opponent of equal rights for trans people and trans youth in particular. In 2022, for example, she filed a lawsuit on behalf of a California parent who claimed that teachers had manipulated her child into secretly transitioning. “Parents are supposed to have access to all the educational records of their children,” Dhillon said at the time. “The concept that the schools have a right to be running secret, don’t-tell-your-parents clubs and don’t-tell-your-parents programs and actively coaching children how to mutilate themselves, which is, you know, not growing your breasts, is certainly not consistent with California law.” Dhillon later secured a $100,000 settlement between her client and the school district.

Dhillon’s nomination is consistent with Trump’s demagoguing of transgender people, most infamously in a campaign ad that accused Kamala Harris of being for “they/them” while Trump was “for you.” In August, he said he’d sign an executive order “instructing every federal agency to cease the promotion of sex or gender transition at any age.” (Federal agencies are not “promoting” transition to Americans.) Although Trump may be fuzzy on the details, the people who are set to fill his administration could be savvier and could use the power of government to make life more difficult for trans and gender-nonconforming people.

I spoke with Kate Redburn, an academic fellow and a lecturer in law at Columbia Law School, to better understand the current legal landscape for trans rights and how it may change under the next administration. Redburn explained that although the next few years may be difficult, there are ways for states to protect trans rights — and trans people — from what is likely to come.

This interview has been edited for length and clarity.

I want to start by thinking about the basic legal landscape for trans rights in the U.S. Where does it stand right now? And what sort of legal attacks are we seeing on those rights?
So right now, I would say that the legal landscape is pretty mixed, and it depends a significant extent on what state you’re living in. So we can think about a few different buckets. There’s health care, there’s school participation and civic life participation, and then there’s anti-discrimination law. And right now, at the federal level, the Biden administration has been quite supportive of trans rights across those areas. In the health-care context, prohibiting discrimination on the basis of gender identity or sex stereotypes, among other things. That’s guidance that’s flipped back and forth between the Obama administration, the Trump administration, and the Biden administration. And we can anticipate that getting rescinded again when Trump’s in office.

There are also Title IX protections for students who are LGBT, or parenting, or pregnant. Those are relatively new. Just in the last year, I believe, the Biden administration issued that guidance for Title IX. So that’s trans students, and it also enforces other kinds of protections like federal laws that protect trans people who are incarcerated. On the federal level, a couple other things: One is that after the Bostock decision, the federal employment anti-discrimination law protects trans people. And the federal government has also taken the position in the trans health ban case that was argued last week that banning health care for trans youth and other gender-nonconforming youth is not constitutional. So at the federal level, the Biden administration has been very supportive of trans rights.

When you get to the state level, that’s where I’d say there is more of a mixed bag. A lot of this has focused on public spaces, especially public schools, but also government buildings. So there’s different regulations about locker rooms, sports participation, and bathrooms. That can vary by state. It can also just vary school district to school district. Some regional sports associations have different policies. But if you zoom out, about 14 states have some kind of bathroom ban for K through 12, or government buildings, or both. And then, health care is even more mixed. So 24 states currently ban transition care for minors. And six of those states actually criminalize some degree of providing care.

You mentioned Title IX. Can we develop that further? How could the Trump administration use Title IX to further marginalize trans students in particular?
There’s a couple ways. So, one, the most obvious thing that I believe Trump has said he would do again is to reinterpret Title IX to require trans exclusion from bathrooms, locker rooms, and pronoun-inclusivity policies under statutes like Title IX that are designed to protect sex equality. They could do something potentially even worse, which would be to use the fact that Title IX has the word “sex” in it to define what constitutes sex to exclude trans people. And then, threaten to cut federal support for schools that teach inclusion in various ways and say that that’s a function of enforcing Title IX.
So, historically, people tend to think of Title IX as mostly about women’s sports, but it runs the gamut for all kinds of sex equality in the education context. So if sex equality is redefined to mean trans exclusion, then there could be more serious repercussions for both the schools that support trans students but also the kinds of educational programming that talk about gender and sexual issues. And all of that could be connected to Title IX reinterpretation.

Something that also happened in the first Trump administration was a reduction in the classic Title IX enforcement — one of the functions of the Department of Education is to enforce anti-discrimination provisions in schools. And one way to reduce the efficacy of a law is to stop enforcing it.

The Supreme Court recently heard arguments in U.S. v. Skrmetti. Could you break down the significance of that case for trans rights and how it might overlap with rights for other marginalized groups?
So the case is about a law in Tennessee, which is very clearly motivated by the belief that trans kids transitioning is a bad outcome, which contravenes all consensus medical evidence. The law in Tennessee allows gender-conforming kids to access puberty blockers, hormones, and other gender-affirming care, and it prohibits trans kids from accessing the exact same treatments and procedures.

And so, the ACLU, on behalf of a group of trans kids and their parents and their families, brought a lawsuit saying that that violates the Equal Protection Clause. They also brought a claim that it violated the rights of the parents to direct the health and well-being of their children, but the Supreme Court didn’t hear that part of the case. And it’s a really important case specifically for trans rights because it poses, first of all, the question of whether or not the Constitution considers trans people to be a minority, a distinct minority, worthy of constitutional protection under equal protection.

But an even broader sense, it poses the question of whether or not the existing constitutional defense against sex discrimination can survive in the current, very conservative judicial climate. So the case is about the specific rights of trans people, but it also creates the possibility for the Court to undermine sex-discrimination constitutional law in general for everyone.

Are there ways to shore up and protect rights for trans people from future attacks under the Trump administration?
Sure, there are lots of ways to do that. One of them just happened in New York, which passed a constitutional amendment prohibiting discrimination on several bases, including gender identity. That Prop 1 was also billed as a state Equal Rights Amendment, because it protects against sex discrimination and also protects abortion rights. And there are similar campaigns at the state level around the country; enshrining trans rights in state constitutions is a great way to shore up protections. Another anti-discrimination law, as we know from a lot of other contexts, only goes so far. So the other thing that states can do is what they’ve done, at least some states have done in the abortion context, which is, for decades it’s been illegal for the federal government to provide support for abortion services and to the Hyde Amendment. So what some states have done in that context is fill the gap themselves.

And states could do that with trans care too. It happens that they would affirmatively provide access to gender-affirming care, just like they, at least, try to provide access to abortion in the absence of federal support. And that could also go to the local level. Some cities, including New York, have more local medical systems, particularly for poor people and undocumented people. And they could say explicitly that we’re not going to let anyone be too poor to transition.

We’ve talked a lot about what some states are doing to restrict trans rights. There’s also obviously a very extensive and well-funded network of right-wing organizations that collaborates with these states on that endeavor. Could you talk about who some of the major actors are and what they’re doing right now?
There are a variety of legal organizations. The one that I know the most about is the Alliance Defending Freedom, and they’re bringing a raft of lawsuits. The strategy that I think has started to be more successful and should warrant more attention is using free-speech rights and religious liberty rights against anti-discrimination law enforcement. I have an example here. So there was a case, for example, where a school had an anti-discrimination provision, and a trans student asked the professor to please use their preferred gender pronouns.

The professor refused on the grounds that using the preferred pronouns would compel him to express a belief that he did not have, which was that one’s gender identity could be different from their sex assigned at birth. And so suddenly, the law that’s designed to prevent politically powerless minorities from being harassed in public spaces gets turned into an opportunity for a person in a position of power to misgender a trans person using the free-speech law. There’s some similar challenges that ADF has also brought to allow people to foster and even adopt queer and trans youth who refuse to use those children’s preferred names and pronouns. There’s litigation about that, I believe, right now in Oregon.

What else could happen during the next four years? 
I think something that is happening around the states and is a possibility in different federal contexts is the statutory redefinition of sex itself. If trans and gender-nonconforming people are thinking about what they can do in the next few weeks to help secure their documentation, the federal government is in charge of issuing passports and Social Security cards. And so now might be the time, if people haven’t done it, to update their gender markers on those documents.

We could talk more about sports. One of the questions that I’ve been getting is, what other context is it likely to extend into? And it potentially puts on the chopping block a whole range of protections on the basis of sex, which are not specific to trans people. But depending on how that opinion gets written, it could also articulate a rule that would make it easier to discriminate against trans people in sports and bathrooms. Maybe you’re not a sports fan. These might seem like sort of trivial spaces. But the effect of not being able to use the bathroom or play on a sports team is to be told that you don’t get to participate in the community on equal terms.