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  • Law Review Writer

Are transgender rights in jeopardy?

Despite the gradual increase in protection of rights for ostracised societal groups in the U.K. and the U.S., recent events suggest transgender rights are in jeopardy. A wave of anti-trans legislation is sweeping the U.S., joining Westminster’s move to block gender reform in Scotland. This has been met with alarm and fear from the trans community, as these laws undermine their fight to achieve dignity and recognition. More widely, this debate has sparked concerns that transgender rights have become a political battleground for the increasingly incensed culture wars, raising concerns over what the future of transgender rights will look like.

In the U.S., there has been a major crackdown on trans rights, with a total of seventeen states now restricting medical care for transgender people. A notable case includes Florida’s ban on gender-affirming medical care for transgender minors, including puberty blockers and hormone therapy. Other pieces of legislation are introducing tougher regulations, even if they are not making outright bans, with several states making doctors and parents liable for administering and approving treatment. A Reuters poll discovered that 55% of U.S. citizens agreed that doctors should be banned from providing transgender treatment to minors. This indicates the surge of transphobia from many who feel increasingly ostracised by the Democrats’ liberal agenda.

The Republicans have latched onto this anti-trans sentiment, anxious to appeal to voters in the run-up to the 2024 presidential election, resulting in a conservative outlook on transgender issues becoming an increasingly central policy. This led to a wave of anti-trans legislation, with Trump’s announcement that if he is re-elected he will stop gender-affirming care, which he controversially dubbed as ‘child sexual mutilation’.

There has nevertheless been a strong backlash, most pertinently, over concerns regarding the mental health of young people. Medical organisations are citing evidence that associates a lack of transition care treatment with higher rates of depression, with a 2020 study on gender-incongruent teenagers revealing that 52% had considered suicide as they persisted with puberty according to their assigned sex. Not only are young people being excluded from treatment that would allow them to live with dignity and freedom, but these laws send a clear message of exclusion, leading to teenagers feeling isolated and ostracised. There is also the worry that these measures have legitimised, and even promoted, transphobic behaviour, resulting in increased stigma, discrimination and violence towards the transgender community. This has led to extensive criticism of the legislation, with Tori Cooper, from the Human Rights Campaign, blaming lawmakers for spreading ‘disinformation’, suggesting that transphobic attitudes are being cemented and led from the top. Nevertheless, many of these criticisms have led to legislation being challenged in court and overturned, such as Arkansas’ law forbidding medical treatment for minors seeking gender transition. Although this reinforces the First Amendment’s effective protection of freedoms and rights, the fact remains that there have been extensive constitutional issues with these laws, which points to their alarmingly controversial nature.

But it is not just in the U.S. where transgender rights are in jeopardy. In January 2023, Westminster made the controversial decision to block Scotland’s Gender Recognition Reform Bill, making it the first time Westminster has used its powers to block a devolved nation from passing legislation. The bill aims to streamline the process for obtaining a gender recognition certificate, making it far easier for people to change their legally-recognised sex. It has been hailed as a crucial piece of legislation, as under the current system the process is lengthy and difficult, thereby excluding many from being able to live with the dignity and respect that everyone deserves’. This has meant that Westminster’s decision to block the bill has been met with fierce criticism. Not only does it mark a major setback for the transgender community, but it also ads to the extensive prejudice and hurdles they face in their everyday lives. Stonewall’s Nancy Kelley has described Westminster’s move as ‘the nuclear option’, and has accused them of using trans people as a ‘political football’, as the debate has sparked a wider concern over whether this move will set a precedent of undermining devolution and limiting Scottish powers. Although it is important to address the constitutional impacts of Westminster’s decision, this has nevertheless pushed the main debate over trans rights to the side-lines, which has harmed their campaign.

However, Westminster have fought to defend their decision, with Scotland Secretary Alister Jack saying ‘I have not taken this decision lightly’. They have insisted that the main reason the bill was blocked was administrative, rather than ideological, since the bill would clash with the Equality Act. Politicians have argued that the bill would lead to detrimental impacts on women’s rights, for instance, removing protection for women in female-only spaces. Nevertheless, this alludes to the wider ideological criticisms of legislation aimed at protecting transgender people, as critics believe that this would be to the detriment of women’s rights. Whilst the feminist movement has fought hard to secure safe spaces for women, many fear that the bill would make it easier for predators with ‘malicious intent’ to abuse the bill. J.K. Rowling voiced her support of this viewpoint, arguing that she had been ‘triggered’ by memories of her sexual assault. Whilst these are understandable concerns, Nicola Sturgeon insisted that transgender rights and women’s rights will not clash under the legislation, stressing the importance of enhancing trans rights, especially due to their lack of protection under the current system.

It remains to be seen what the future of transgender rights will be. The Scottish government is aiming to challenge Westminster in court, and remain staunchly critical of their attitude towards the trans community, describing their decision as a ‘full-frontal attack’ on the Scottish government and transgender people. Similarly, the U.S. legal system and Constitution have ensured that transgender rights and liberties remain protected. However, the increasing frequency of these clashes points to the alarming realisation that liberties cannot be taken for granted, and that despite increasing progressive attitudes in the U.K. and U.S., trans rights remain in jeopardy.

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