Federal Judges Emerge as New Heroes of Trans Rights

After a legislative session where many states proposed, and passed laws targeting trans rights, federal judges in these states are beginning to block these laws as unconstitutional. In many of the legal cases brought against them, the vagueness of the language used which made them so wide-sweeping turned out to be the downfall of these laws.

Just this year, state representatives introduced 491 bills aimed at limiting trans rights, whether it came in the form of restricting access to health care, or via drag bans, which would often include language which made existing as a trans person illegal in front of children. Over the past few years, republican lawmakers have introduced and passed nearly 50 laws targeting trans health care, trans student-athletes, or drag performances.

But there is hope because, now, federal judges in various states have begun to challenge and block these laws in a chain of wins for trans rights. A federal judge in Arkansas overturned an HRT ban for minors in a first-of-its-kind ruling last month, declaring the law unconstitutional.

Of the 20 states that have passed into law restrictions on transition-related care for transgender minors, 11 have faced lawsuits. Five, Arkansas, Alabama, Indiana, Kentucky, and Florida, have had their restrictions completely or partially blocked by federal judges who ruled they violated the 14th Amendment’s equal protection clause.

In Oklahoma, the state declared that it would not enforce its health care ban for trans youth while opponents of the bill sought a court order to block it. Tennessee’s gender-affirming care ban was temporarily blocked until an appeals court overturned the ruling in early July. The four other lawsuits over similar restrictions in Georgia, Idaho, Montana, and Nebraska are still pending, according to tracking by the Movement Advancement Project.

“The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear,” Judge Robert Hinkle writes in a scathing order granting a preliminary injunction against Florida’s ban on gender-transition treatment for minors. Hinkle, whose narrow ruling applies only to the three plaintiffs who sued, added that the state admitted “that pushing individuals away from their transgender identity is not a legitimate state interest.”

“Any proponent of the challenged statute and rules should put up or shut up: Do you acknowledge that there are individuals with actual gender identities opposite their natal sex, or do you not? Dog whistles ought not to be tolerated,” Hinkle writes in his order.

Legal experts agree that in many of these cases, the laws will simply not hold up in court. Begging the question: what was the point?

Paul Smith, who successfully argued the 2003 landmark Supreme Court case Lawrence v. Texas, which found the United States’ remaining sodomy laws unconstitutional, says the repeated victories for LGBTQ people and advocates are “a sign that these laws are mostly being thought up based on their appeal to a certain frenzied group of people in the country who were very excited about picking on LGBTQ people right now, not based on their legal merits and sustainability.

“Take a law that says you can’t have a drag show. It’s hard to imagine an easier First Amendment case to win because it’s just plain content censorship,” he says. “And there’s not going to be any evidence that is harmful to somebody.”

While republican lawmakers continue to use trans rights as a platform for their hate campaigns, federal judges, lawyers, and advocates around the country are beginning the work of cleaning up the mess they’ve left behind. The number of trans people, especially youth ,who are negatively affected in the meantime, can only be estimated.