Defending Transgender and Nonbinary Rights: Discriminatory Laws and What You Can Do
Trans and nonbinary rights are under attack. In 2023 alone, there have already been hundreds of anti-trans bills introduced, with states enacting bans on gender-affirming care, moving to criminalize parents and doctors seeking to provide the best health care possible for their children and patients, and banning students from using school restrooms that align with their gender identity. They are also aggressively seeking to ban transgender (and all LGBTQ+ related) books and curriculum from our schools, and are doing everything they can to prohibit transgender and nonbinary students from participating in sports.
But Lambda Legal is fighting back. We’ve been fighting discrimination for 50 years and we’re not going to stop now. These unprecedented anti-LGBTQ+ legislative attacks nationwide call for an urgent response from the LGBTQ+ community, our allies, and all Americans.
The following FAQ is inspired by our March 30 “National Call: Fight Back Against Anti-Trans Hate Across the Country,” which discusses what Lambda Legal is doing to counteract the slew of anti-transgender policies and laws across the country. It contains answers to questions we received on social media and during the live virtual event where we discussed how we’re combating these attacks on various fronts, from litigation in multiple states and the Supreme Court, policy initiatives and advocacy across several state legislatures.
This is intended to update, educate, inform and share resources to help fight back these unprecedented legal and policy attacks against the transgender and nonbinary communities.
Content updated as of July 19, 2023. If you have any questions regarding this page, please email media@lambdalegal.org.
Our Work Against Anti-Transgender Attacks
Lambda Legal represents LGBTQ+ people and everyone living with HIV — in the courts of law and in the court of public opinion. At Lambda Legal, we work to defend and expand protections for transgender and non-binary people of all ages through impact litigation, policy work, advocacy, and public education.
Lambda Legal has always been at the forefront of change and this year is celebrating 50 years of fighting for LGBTQ+ people and everyone living with HIV. More information about Lambda Legal’s 50-year journey, our history and work can be found here: https://lambdalegal.org/history/.
You can also watch this video: Lambda Legal: From 1973 to Today – YouTube
Lambda Legal is fighting back against these anti-trans and nonbinary attacks in several states, such as Florida, Texas, Tennessee, Idaho, Missouri, Montana, Oklahoma, and West Virginia. We are also monitoring and supporting lawsuits and policies across the country challenging this onslaught of anti-LGBTQ+ attacks.
We have legal challenges battling ongoing efforts to strip health care from transgender and nonbinary people, legal challenges against sports bans, and legal challenges against attempts to censor discussion of LGBTQ+ issues in schools. We are also involved with public policy advocacy all throughout the country. We are providing information to legislators and advocates combatting the junk science being used to promote these bans. We are also providing testimonies in several states and we’re working closely with coalition partners throughout the country.
The politically motivated, unprecedented attacks on the LGBTQ+ community are based on misinformation and the creation of fear, built on a lack of truth and awareness about the LGBTQ+ community among the general public.
Here’s a list of current Lambda Legal litigation in states: https://lambdalegal.org/litigation-library/
Health care access for trans and nonbinary folks:
-Florida (Dekker, et al., v. Weida, et al): Challenging Florida’s anti-transgender health care rule denying gender- affirming care coverage for transgender Medicaid beneficiaries.
-Texas (Doe v. Abbott and PFLAG v. Abbott): Challenging Texas’ Department of Family and Protective Services (DFPS) attempt to investigate parents who work with medical professionals to provide their adolescent children with medically necessary gender-affirming care. Watch a video by our plaintiffs on this case here.
-Missouri: (Southampton Community Healthcare v. Bailey) Challenging Missouri’s attempt to restrict access to gender-affirming care for transgender people. As a result of our lawsuit, Missouri Attorney General Andrew Bailey issued an order terminating his anti-transgender emergency rule.
-Tennessee: (L.W. et al v. Skrmetti et al) Suing the State of Tennessee to block the state’s recently enacted discriminatory ban on medically necessary gender-affirming care for Tennessee’s transgender youth.
-Oklahoma: (Poe et.al. v. Drummond et.al.) Lawsuit on behalf of a group of five families with transgender adolescents and Dr. Shauna Lawlis of OU Health asserting that SB 613 unjustly and unfairly targets transgender youth for discrimination and interferes with parents’ rights to make decisions about their children’s health care.
-Montana: (van Garderen v. State of Montana) Lawsuit filed on behalf of two families with transgender youth and two medical providers who work with transgender youth asserting that SB 99 violates their rights under the Montana Constitution, including the right to equal protection and the right of parents to direct the upbringing of their children.
Sports Bans
Our opponents have introduced and passed several laws banning transgender youth from participating in school sports. There are 19 states that have banned transgender student-athletes in just the last three years as part of an escalating wave of state-level restrictions on the rights of transgender people. Lambda Legal and our sibling organizations have filed lawsuits in West Virginia, Tennessee, and Idaho challenging these discriminatory bans.
For example, in West Virginia, Lambda Legal with the ACLU and ACLU of West Virginia filed a lawsuit on behalf of Becky Pepper-Jackson, a 13-year-old transgender girl who wants to join her teammates on the middle school track and field team, and who has done so without incident for four seasons. When a district court judge abruptly reversed himself in January 2023 and dissolved the preliminary injunction he had previously granted allow Becky to join her teammates, we quickly pivoted to the U.S. Court of Appeals for the Fourth Circuit, which granted a stay on the district court ruling and Becky was able to try out for spring season and rejoin her teammates while the lawsuit continues. The State of West Virginia and its partners with Alliance Defending Freedom then asked the U.S. Supreme Court to reverse the Fourth Circuit ruling, but the Supreme Court refused in a 7-2 vote.
-West Virginia: (BPJ v. WV State Board of Education): Challenging West Virginia’s H.B. 3293, which bans girls and women who are transgender from participating in school sports.
-Tennessee: (L.E. v. Lee) Lawsuit on behalf of 14-year-old Luc Esquivel who is banned from participating on the boys’ golf team at his high school in Knoxville, Tennessee because he is transgender.
Don’t Say LGBTQ+
States like Florida are attempting to pass broad and vague censorship laws in schools that prohibit instruction about sexual orientation or gender identity if it is deemed “not age-appropriate or developmentally appropriate for students.” Because primary school instruction is generally discussion-based, some schools have interpreted the law to restrict anything that might elicit discussion about LGBTQ+ people or issues.
In the case of Florida “Don’t Say Gay or Trans,” the law has also imposed new notification requirements on teachers and schools, causing fear that schools will be forced to “out” students and subject them to harm. The result is that the law has silenced LGBTQ+ people and families and left students, teachers, and families guessing about what it means to comply with the law.
Lambda Legal is challenging some of these laws including Florida’s “Don’t Say Gay or Trans” law:
-Florida: (Cousins et al. v. The School Board of Orange County et al.) Challenging “Don’t Say Gay or Trans” law, which bans discussion of gender identity and sexual orientation in grades K-3 and restricts such discussions for students through grade 12. The lawsuit argues that the law is based on undefined standards of appropriateness, effectively silencing and erasing LGBTQ+ students and families.
Bathroom Bans
Lambda Legal has a long history of combating efforts to keep transgender students from using school facilities that match their gender identity, including lawsuits dating from 2016 and challenging bans in Florida, North Carolina, and Pennsylvania. We are currently challenging a ban in Oklahoma, and are teeing up future challenges as more state consider similar harmful and stigmatizing laws.
–Bridge v. Oklahoma State Department of Education: Challenge on behalf of three transgender students to S.B. 615, which bans all transgender students in Oklahoma from using school restrooms consistent with their gender identity.
Wins Against Anti-Transgender Attacks
It’s important to look at the victories that we have won in the courts. Lambda Legal and our sister organizations have blocked enforcement of these discriminatory laws in jurisdictions across the country, including in Texas, Arkansas and Alabama. When courts look at the evidence, the science and the law, we are confident that they’ll rule the right way on these issues. We also take hope from the record number of qualified jurists the Biden administration has nominated, and the U.S. Senate confirmed, to the federal bench. While we continue to see this onslaught of anti-trans legislation, we’re also seeing bright spots in places around the country. Michigan and New Mexico have passed inclusive non-discrimination protections, and Illinois, California, Maryland, and New Jersey have also enacted proactive legislation to protect transgender residents of and visitors to those states.
These attacks are not new. Lambda Legal has been fighting these kinds of bans and exclusions for many years. And we’ve been very successful.
For example, in the last few months we scored an enormous victories on behalf of state employees in North Carolina, in Kadel v. Folwell, and on behalf of transgender Medicaid recipients in both West Virginia, in Fain v. Crouch, and more recently in Florida, in Dekker v. Weida. The state employee health plan in North Carolina contained a blanket exclusion for gender-affirming care, and in West Virginia and Florida, the state Medicaid programs also banned coverage for gender affirming care. While all three decisions have been appealed, the message is clear: gender-affirming care is health care, and should be treated as such.
Another example of these attacks are against identity documents. There is a push to try to prohibit trans people from updating their identity documents. Idaho tried something similar a couple of years ago, and Lambda successfully enjoined a lawsuit that prohibited transgender people from updating their birth certificates in Idaho. We have successfully litigated similar cases in Ohio, Kansas, Puerto Rico, New York, and North Carolina. We continue to litigate cases in Oklahoma and Tennessee, and also are pushing back against the effort by the Kansas attorney general to reverse the consent judgment we won there.
Fortunately, there are some states taking affirmative trans-protective actions, including Maryland, Minnesota, Colorado and New Mexico.
Maryland recently took a huge step by codifying into law access to gender-affirming care.
Minnesota is a great example where Gov. Tim Walz signed an executive order designed to protect gender-affirming health care access in the state. Not only are these states condemning what’s happening across the country, they are affirmatively ensuring that, in these state, trans and nonbinary people and their families are safe, secure, and protected under the force of law. We need more examples like these.
What Can You Do?
Everyone has a huge role to play. All of us can support and affirmatively take a stand for trans lives by advocating, educating, and moving our state legislatures. Even if your state is not introducing anti-trans or anti-LGBTQ legislation, they could be passing proactive and protective measures that advance protections and rights for LGBTQI+ people.
You can take multiple actions to make sure that your communities are safe and inclusive and welcoming in every possible way for trans and nonbinary people across the country. And you can take action from where you are:
-You can educate yourself and your family members and friends, and those who are in those non-supportive states and get them involved.
-Lobby your elected officials, and you can take action in the affirmative and ensure that not only are we fighting against the wave that’s pushing us back, but we are pushing forward as well.
-It’s important to be in solidarity with those that live in deeply non-supportive states who are being impacted by the anti-trans legislative onslaught.
There are actions both large and small we can take daily to support trans and nonbinary people and make a huge difference now, in the face of hostile state legislatures and a rogue Supreme Court. Some of these actions include:
-Listening to trans and nonbinary people, especially young people when they share their pronouns, when they share their names, and when they share their stories. There’s a lot of misinformation in the media about who these young people, so take the time to listen to actual trans youth;
-Vocalizing your support for trans and nonbinary people. Changing hearts and minds is a large part of our work and we all have the ability to do that as well;
-Challenging anti-trans sentiment in conversations in daily life. These challenges don’t just happen in the courtroom, but occur on the street, in the gym, and in the grocery store;
-Holding awareness days or activities in your community, school or other spaces to uplift transgender people and issues throughout the year. You don’t have to be an attorney to do that;
-Calling your elected officials if you live in states that are passing harmful legislation and telling them to vote against anti-trans bills. Or better yet, showing up to testify on behalf of trans and nonbinary youth;
-Making your own workplace or school or courtroom more welcoming and inclusive of transgender and nonbinary people, and challenging discriminatory policies and structures within institutions, workplaces and communities.
-If you’re in the legal field, you can revise and rethink your documents, language, and strategy to make sure that they’re inclusive of gender expansive people.
It takes everybody. It’s not just us in the courts, it’s people in their communities as well. It’s people across the country in their states and local governments. It’s people advocating in their schools, in their workplaces, with their families, and in their places of worship. It takes all of us in this fight.
The first thing we can do is to affirm the LGBTQ youth in our lives. We know that when an LGBTQ+ youth has a supportive adult, their risk of suicide drops dramatically.
As an individual, you can:
-Show love, kindness and support: You can reach out, send affirming messages and be there for them to support them.
-Don’t make assumptions: Check your bias. Be there to lend an ear and a helping hand.
-Normalize and respect pronouns: Whether your gender identity is cis, trans or nonbinary, honoring pronouns is something we all should do. This way, no one feels othered, and it becomes part of our every day routine. Ask people for their pronouns; don’t assume them. If you misgender someone, apologize and mean it — and make sure you get it right next time.
-Prioritize listening: Listening is the best way to learn and show respect to people’s lived experiences.
-Educate yourself: The responsibility shouldn’t rely on LGBTQ+ people to educate you. You also have to do the work by educating yourself from trusted sources.
-Be a resource: If you believe someone is experiencing discrimination, support them in challenging those circumstances and share resources like the Lambda Legal Legal Help Desk. If the matter is related to mental health or crisis, direct them to Trevor Project (thetrevorproject.org) or Trans Lifeline (translifeline.org)
In terms of structural interventions, schools should implement the following (and you can advocate for them as well). Schools should:
-Establish and/or support Gay-Straight Alliances (GSAs). More on the history behind GSAs here.
-Have clear and proactive anti-bullying policies that explicitly incorporate sexual orientation and gender identity.
-Educate their staff by holding, for example, sensitivity trainings, including education on terminology and the LGBTQ+ community.
-Provide resources in libraries.
-Establish inclusive curriculums.
-Support TGNCNB youth and affirm their rights. Watch these videos related to clothing and other policies affirming gender identity
You can advocate for these — and additional — measures by your local school system. Remember, it’s your tax dollars that are funding our public schools. You have the right to insist that schools be places where every young person, regardless of sexual orientation and gender identity, is treated with respect and is getting the education they deserve.
MEDIA: Watch here a VIDEO by our plaintiff in Florida’s Cousin lawsuit, Will Larkins, sharing tips to: Learn How to Be a Better Ally! – YouTube
MEDIA: Watch this video on how to be a better ally to LGBTQ youth
There is so much help that can be provided by law firms and private practice lawyers to nonprofits like Lambda Legal. We are always looking to partner with law firms on federal court litigation in states passing anti-trans legislation. We’re fighting back against a multitude of different bills that attack health care, schools, athletics, and other targets. There are dozens of bills introduced in almost every state and we require resources to monitor, analyze and bring challenges. These cases involve significant discovery and are going to trial more often than in the past. As a result, support from private practice is crucial to carrying out these litigation efforts. You can also assist us with our amicus efforts in support of the work of our sibling organizations.
You could also raise awareness of issues impacting trans and nonbinary youth in your legal communities and workplaces. You can challenge your own internal policies as well ensure that your workplace is a safe space for trans and nonbinary employees and your clients.
You can also donate your time and your money to supporting the trans and nonbinary communities and efforts.
You can contact Lambda Legal and offer your support with litigation efforts by emailing Sruti Swaminathan at: sswaminathan@lambdalegal.org.
We need strong, unambiguous regulations that clarify that transgender people are protected under federal law. First, we need to pass the Equality Act, which would be an enormous victory that would enshrine civil rights protections on the basis of sexual orientation and gender identity at the federal level under the Civil Rights Act and codify parts that were decided in the Bostock case by the Supreme Court. Second, the Biden administration should continue to issue strong, powerful regulations that will help end discrimination.
The Biden administration must also continue to educate the country about the importance of transgender rights in a way that humanizes our community. This is important because the law usually moves in step with public opinion. The administration can also take other measures such as bringing more diversity and nominate transgender people to the federal judiciary, as well as throughout the administration. Regarding Congress, it’s important to push back against the casual and aggressive transphobia that transpires there and push for inclusive federal regulations.
In most communities, there are usually LGBTQ+ centers and there is usually a transgender or nonbinary group, department, staff or entity. Just connecting with them, supporting them, and building a relationship with them would be very helpful. You can do outreach with your local government or with a community center. Also, you can build these issues into whatever work you do.
Other actions could be having inclusive policies or having a gender neutral restroom or signs, which sends a very clear signal of support. If you are part of a local group, agency or department, you could have regulations or ordinances that increase visibility in whatever way possible that humanizes trans people. You can also find ways to incorporate trans and nonbinary people into your work, your life, and into the communities and spaces that you are part of. That sends a strong message that you want to be inclusive and supportive of them in those spaces. You can develop opportunities to include trans people into the work that is already happening, the fabric of your activities or build something around them. You don’t have to wait for national observance days to do something any time of the year.
It’s hard to predict. However, Lambda Legal will continue to fight every iteration of these anti-trans bills and laws. Important to note is that when we usually get a fair hearing in federal court, we win. Lambda Legal has had success on a number of cases in West Virginia against a Medicaid exclusion for gender-affirming care, and against an exclusion for gender-affirming care in North Carolina State Employee Health care plan.
We also were successful in our preliminary injunction temporarily blocking West Virginia’s sports ban case on behalf of transgender student Becky Pepper-Jackson.
We have a great track record of victories in the courts. We have committed and dedicated staff, and we’re not going anywhere.
What resources can I find from Lambda Legal?
First, Lambda Legal’s Help Desk is a resource for the community we serve in providing general legal information and resources relating to discrimination based on sexual orientation, gender identity and gender expression, and HIV status. If you or anyone you know may be facing discrimination at the workplace, school or in any other setting, they can reach out to the Help Desk for resources and guidance. Given the nature of our litigation, we are not able to represent people individually but we would refer to other resources.
The Lambda Legal Help Desk can be found online at: https://lambdalegal.org/helpdesk/#contact.
Third, you will find on our website the legal briefs and documents we have filed in all of our cases, where you will find our legal arguments, language and positions against these policies and laws.
Fourth, you will also find press releases and statements responding or explaining some of these lawsuits and policies — language that you can use for your own advocacy at the local level.
Find additional resources and reports below:
National resources:
-REPORT: Lack of LGBTQ+ Representation on Federal Judicial Nominations
Resources by state
Florida:
-FAQ: Florida’s “Don’t Say Gay or Trans Bill”: What LGBTQ+ People Should Know
-FAQ: Protecting Health care for Transgender Floridians FAQ
Texas:
–Gender-Affirming Care in Texas: What Parents and Guardians Need to Know
*Disclaimer: Please note, Lambda Legal is not providing legal advice by sharing such materials. They are intended to serve as informational references only. The client-attorney relationship is a contractual arrangement created between two parties.