Transgender inequality

The term transgender refers to people whose gender identity or expression differs from those typically associated with the sex they were assigned at birth. This contrasts with cisgender identity (the normative and predominant form of gender identity), in which an individual’s gender identity and expression conform to that of the sex they were assigned at birth. Like many other gender or sexual marginalized groups, transgender people have often faced issues of inequality throughout history and across cultures. This has ranged from general misunderstanding of transgender identity and lack of representation to overt discrimination and violent persecution. In response, the modern transgender rights movement emerged in the mid-twentieth century, often closely tied to broader LGBTQ activism.

Transgender identity notably gained increased exposure in Western society in the 2010s and 2020s. Continuing advocacy efforts resulted in growing legal consideration of gender identity in the United States and some other countries, while certain high-profile transgender celebrities, such as reality television star Caitlyn Jenner, author and television host Janet Mock, and actor Elliot Page, helped raise transgender representation in the media. However, there was also considerable backlash from social conservatives. In the US, significant public debate surrounded issues such as transgender restroom use, participation of transgender athletes, and transgender health care, and a proliferation of anti-trans legislation drew further social, political, and media attention to the ongoing problem of transgender inequality.

Background

Since the 1960s, social scientists and commentators have commonly distinguished between "sex" and "gender." While sex refers to the biological distinctions between male and female (on the basis of genitalia, chromosomes, and secondary sex characteristics), gender entails the socially and culturally defined qualities commonly associated with one’s sex—in other words, gender involves the culturally defined notions of what is considered masculine or feminine. One aspect of gender is a person’s gender identity—that is, whether a person feels male, female, or nonbinary.

Although a common perception is that a person’s sex is biologically clear-cut, this is actually inaccurate. Intersex advocates note that approximately 1 out of every 1,500 to 2,000 births require a sex differentiation specialist to be called in, because the baby’s sex is ambiguous—sometimes on a chromosomal level. Thus, many experts and people in the transgender community argue that gender is not a binary and is not fixed, but instead exists as a spectrum that people can move along over the course of their lives. Furthermore, they oppose any discrimination against those who do not conform to traditional social expectations about sex and gender.

History

Although the term "transgender" only emerged in the mid-twentieth century, gender-nonconforming people have existed throughout history and around the world. While some cultures have accepted certain nonbinary identities or behaviors, many societies developed relatively strict gender norms based on a male-female binary. Religious belief often helped shape gender norms, and the influential Abrahamic religions Judaism, Christianity, and Islam all notably tended to promote a binary view of both gender and sexuality. This contributed to widespread intolerance of people who did not conform to these norms. In Western society, gender-nonconforming people were long viewed as morally deviant and often associated with "exotic" cultures or mental illness.

Due to discrimination and persecution, historically, many people who might fit the modern concept of transgender identity did not broadcast their nonconformity. Some individuals likely passed as male or female and completely hid the fact that this was different from their sex assigned at birth. Personal accounts from gender-nonconforming people are rare for much of the historical record, so researchers must rely on secondary sources that typically reflect societal prejudices and therefore may often be inaccurate. Additionally, because historical accounts do not follow modern definitions of transgender identity or related concepts, it can be difficult to study exactly how different groups were treated. For example, gender nonconformity and sexual nonconformity were historically often conflated. For these reasons, scholars often caution against labeling historical examples of gender-nonconforming individuals as transgender. Nevertheless, it is clear that inequality predominated for centuries.

The rise of modern medicine and the field of psychology in the 1800s brought about increased interest in what would later be considered transgender identity. There began to be a broad shift from religious to medical perspectives, but this did not end discrimination. Indeed, medical literature tended to pathologize gender nonconformity, with early references to the subject largely found in texts on abnormal psychology. By the mid-1800s there was a wave of laws discriminating against the LGBTQ community in many Western nations. In response, activists promoted a new field of study known as sexology, which in the early twentieth century helped begin to more formally distinguish transgender identity from other persecuted LGBTQ groups. Pioneering work on transition-related surgery was done in the 1920s and 1930s, especially in Germany, but this was often met with considerable negative public backlash. Notably, the Nazis cracked down heavily on this emerging scholarship and on the LGBTQ community as a whole.

After World War II, the transgender community gradually gained greater visibility in Western society but continued to face severe inequality. Transgender identity continued to be treated as a mental health problem by the medical community, a view that was reinforced by the American Psychiatric Association's inclusion of "transsexualism" in the influential Diagnostic Statistic Manual of Mental Disorders (DSM) in 1980. Yet there was also growing activism and advocacy for LGBTQ rights. The Compton's Cafeteria riot in San Francisco in 1966 was an early prominent protest by transgender women and drag queens, and the more famous 1969 Stonewall riots in New York City are widely considered a turning point in the modern LGBTQ+ movement. Some countries and other jurisdictions began to enact policies related to trans rights; for example, in 1972 Sweden was the first nation to let people legally change their gender.

In the 1990s there was a proliferation of transgender scholarship that further advanced the cause of transgender equality. However, discrimination and even outright physical violence against transgender people remained deeply problematic in many places, including the United States. The 1993 murder of Brandon Teena and several other high-profile murders related to gender identity brought media attention to the issue and helped drive another wave of activism. The annual Transgender Day of Remembrance was first held in 1999 to commemorate people murdered due to transphobia.

Transgender Inequality in Contemporary US Society

The early twenty-first century saw a significant increase in public attention to the transgender community, including efforts to better understand and raise awareness of inequality issues. In 2011 the National Center for Transgender Equality and the National Gay and Lesbian Task Force (later the National LGBTQ Task Force) published a report containing the findings of the National Transgender Discrimination Survey. The data indicated that transgender individuals in the United States and its territories, including Puerto Rico, Guam, and the US Virgin Islands, face extreme levels of discrimination and inequality. According to the report, this discrimination, which is severely compounded for transgender people of color, often "lead[s] to insurmountable challenges and devastating outcomes."

Among the more notable statistics from that survey, 41 percent of respondents reported having attempted suicide in the past, compared to just 1.6 percent of the general population. This percentage was even higher among respondents who had lost a job due to bias (55 percent), had been harassed or bullied in school (51 percent), had low income, or had been a victim of physical assault (61 percent) or sexual assault (64 percent). In addition, respondents were nearly four times as likely to have a household income of less than $10,000 compared to the general population and experienced twice the rate of unemployment, with an even higher unemployment rate (four times the national rate) among respondents of color.

Overall, 63 percent of respondents "had experienced a serious act of discrimination—events that would have a major impact on a person’s quality of life and ability to sustain themselves financially or emotionally"—and 23 percent had experienced at least three such events. These events include:

• losing a job due to bias (26 percent of respondents)

• being evicted due to bias (11 percent)

• experiencing school bullying or harassment so severe that the respondent had to drop out (15 percent)

• being bullied by a teacher or school staff member (31 percent)

• being physically or sexually assaulted due to bias

• becoming homeless as a result of gender identity or expression (19 percent)

• losing a relationship with a partner (45 percent) or with children (29 percent as a result of an ex-partner's actions, 13 percent as a result of court interference) due to gender identity or expression

• being denied medical service due to bias (19 percent)

• being incarcerated due to gender identity or expression alone (7 percent of all respondents, 41 percent of Black respondents, 21 percent of Latino/a respondents)

Later studies continued to support these findings. For example, the National Center for Transgender Equality followed up with its US Transgender Survey (USTS), conducted anonymously online in 2015 and with results published in late 2016. Over 27,700 people from every US state and other US holdings responded, providing a new level of detail into the experiences of the transgender community. Like its predecessor, the USTS found widespread inequality, discrimination, and outright violence against transgender people.

Overall, 26 percent of respondents to the 2015 survey had been verbally harassed in the past year for being transgender, 10 percent experienced sexual assault (jumping to 47 percent over their whole lifetime), and 9 percent experienced physical assault. Ten percent of respondents reported direct violence against them by a family member due to their transgender identity, and 8 percent were forced to leave their home. Of those who had a job in the year before the survey, 30 percent had been mistreated at work in some way, including being harassed verbally, physically, or sexually; denied a promotion; or fired. Respondents in school faced similar challenges, with 54 percent reporting verbal abuse, 24 percent physical assault, and 13 percent sexual assault; such mistreatment led 17 percent to leave school altogether. Transgender people also faced a much higher rate of poverty than average, at 29 percent compared to 14 percent for the general population, in part due to a 15 percent unemployment rate compared to 5 percent nationally.

In 2020 the American Journal of Psychiatry published a study demonstrating that transgender people were more likely than cisgender people to experience mental health issues. A 2021 report by the liberal think tank the Center for American Progress found that widespread discrimination and interconnected social, economic, and political factors contributed to a wide variety of severe negative health impacts for transgender people. Problems within the health care field further exacerbated these issues, including obstacles to access and mistreatment by medical providers.

Many called for greater protection of the rights of those in the LGBTQ community following the high-profile death in 2024 of Nex Benedict, a nonbinary Oklahoma high school student who claimed to have been bullied for some time and was ultimately involved in a fight at school before dying of a drug overdose.

"Bathroom Bills"

In the spring of 2016, the legislatures of Georgia, Mississippi, North Carolina, and Tennessee all introduced legislation that critics claimed discriminated against the transgender community. These bills were popularly nicknamed "bathroom bills" by the media, as a recurring theme across these bills were efforts to require people to use the public restroom or shower that corresponded to the sex they were assigned on their birth certificate—regardless of a person’s current gender identity or gender expression. Suddenly, restroom use by transgender people became a highly debated topic.

North Carolina’s House Bill (HB) 2, the Public Facilities Privacy and Security Act, was signed into law by Republican Governor Pat McCrory on March 23, 2016, and was passed in response to a local ordinance approved by the Charlotte City Council that protected certain rights for transgender individuals. On April 5, 2016, Mississippi governor Phil Bryant, also a Republican, signed into law HB 1523, which allowed individuals and organizations to deny certain services to, or terminate the employment of, individuals whose conduct violates a "sincerely held religious belief" that marriage is between one man and one woman, and that "male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth." Bryant and the bill’s supporters argued that this legislation was necessary to protect religious freedom and to prevent such individuals from being charged with discrimination, while opponents claimed that HB 1523 granted permission for public and private citizens to discriminate with impunity against the LGBTQ community on religious grounds. Meanwhile, the Tennessee bathroom bill died in the state legislature, while Governor Nathan Deal of Georgia, also a Republican, vetoed HB 757 (a bill similar to that of Mississippi) in April 2016.

Reaction to these bills reverberated throughout the nation, as well as internationally. Prominent musicians and other entertainers canceled performances in North Carolina because of HB 2. Republican presidential candidate Donald Trump and Democratic presidential candidate Hillary Clinton both spoke out against the law, with Trump saying it was bad for business and Clinton saying it was discriminatory (Trump later voiced some support for the law after winning his party's nomination). The British government advised its LGBTQ citizens to exercise caution if traveling to either North Carolina or Mississippi. New York governor Andrew Cuomo banned state government travel to North Carolina, as did several other states, while Pennsylvania governor Tom Wolf signed executive orders barring state employees and contractors from engaging in anti-LGBTQ discrimination. Many corporations voiced concern over HB 2, and the National Basketball Association (NBA) announced that the league would relocate the 2017 NBA All-Star Game, scheduled to take place in Charlotte, North Carolina, to another state because of the law. NASCAR chair Brian France also voiced his opposition to HB 2. In March 2016, prior to Deal’s veto of HB 757, the National Football League (NFL) expressed disapproval over the pending legislation in Georgia.

On June 30, 2016, the day before the Mississippi law was due to come into effect, a district court judge issued a preliminary injunction blocking the law in response to a lawsuit. The Mississippi attorney general declined to appeal the ruling, so Bryant hired a private attorney to continue the appeal. In June 2017, a three-judge panel for the US Court of Appeals found that the plaintiffs in the lawsuit lacked standing, as HB 1523 had not been specifically invoked to discriminate against them, and lifted the injunction, allowing the law to enter into force. Advocates for the plaintiffs planned to appeal the decision to the Supreme Court, but the high court declined to hear the case in early 2018. In response to the bill, several states and municipalities enacted bans of non-essential publicly funded travel to Mississippi.

Meanwhile, the boycotts and lost investment due to HB 2 cost North Carolina millions of dollars, helping turn public opinion in the state against the law. In March 2017, the National Collegiate Athletic Association (NCAA) notified North Carolina that unless HB 2 was repealed soon, the state would not be selected to host any championship games through 2022. The NCAA set a forty-eight hour deadline on March 28; on March 30, the North Carolina legislature passed a bill repealing HB 2's bathroom restrictions but retaining the remainder of the law, which included a provision banning municipalities from enacting antidiscrimination policies. The partial repeal was signed into law by new Democratic governor Roy Cooper.

In May 2017 the administration of President Barack Obama issued guidelines stating that schools receiving federal funding were required to accept a student's gender identity as their sex, therefore allowing them to use whichever bathroom they prefer. The administration claimed that Title IX, which prohibits discrimination based on sex, covered transgender students, causing several states to sue and obtain an injunction. Then, with Donald Trump as president following the controversial 2016 election, the new administration rescinded the Obama-era order. In March 2018, Trump's education secretary, Betsy DeVos, confirmed that the Department of Education would continue to refuse to hear any complaints by students regarding discrimination from bathrooms or locker rooms based on their gender identity. However, the subsequent administration of President Joe Biden signaled it would reverse the Trump-era policy, with a January 2021 executive order affirming support for equal treatment regardless of gender identity and calling for a review around Title IX and related guidance and enforcement.

Still, several states continued introducing legislation aimed at restricting transgender bathroom use into the 2020s. According to media reports, in 2024 Utah became one of at least ten states to have passed some form of transgender restroom use bill applying to restrooms at public schools and government-owned buildings.

Federal Actions

While bathroom bills became one of the most prominent battlegrounds for transgender rights, issues of inequality have arisen in many other areas as well. In response to growing advocacy and awareness campaigns, there was a push to increase federal-level protections for LGBTQ people under the Obama administration. For example, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, signed into law by Obama in 2009, extended US hate-crime law to include crimes motivated by a victim's actual or perceived gender, gender identity, or sexual orientation. In 2012 the US Department of Justice released an official statement suggesting that employment discrimination against transgender people violated the Civil Rights Act of 1964. President Obama issued an executive order in 2014 banning workplace discrimination against LGBTQ federal government employees or contractors.

For many LGBTQ activists, fears of discrimination increased as the Trump administration came into power in 2017. Though as a candidate Trump had expressed some support for the LGBTQ community, including transgender people, he quickly adopted more conservative positions after winning the presidency. He also appointed several vocal opponents of LGBTQ rights to prominent positions, such as Attorney General Jeff Sessions. In addition to revoking the Obama administration's protections for transgender students, Trump and his appointees pursued many other policies seen by many as anti-LGBTQ. Notably, in late 2017 the Department of Justice under Sessions withdrew the employment discrimination protections for transgender people under the 1964 Civil Rights Act's Title VII that had been instated under Obama.

Perhaps most prominently covered in the media, however, was Trump's July 2017 surprise declaration that transgender people would be banned from military service, overturning another Obama-era policy. This announcement was initially made informally, leading the US Department of Defense to state it would not instate a ban until official orders were made; many former military personnel condemned the proposed ban. When Trump attempted to officially order the transgender ban he was blocked by US district judges, though the question of whether military funds could be used for gender-affirming treatment was left open. In March 2018, Trump issued another directive barring anyone with gender dysphoria from serving in the military. Injunctions over the first ban attempt delayed it for about a year, but the Supreme Court approved the ban in 2019.

Public opinion polling continued to suggest most Americans opposed the ban on military service by transgender people. After President Biden took office in January 2021, one of his first executive orders was to overturn Trump's ban. The Biden administration continued to take action on the issue of transgender inequality, including with the more general executive order initiating a review of sex and gender discrimination policies. A foreign policy memo released that February also called on the United States to step up as a global leader on LGBTQ rights in general.

Meanwhile, the Supreme Court delivered a significant victory for LGBTQ advocates in the landmark case Bostock v. Clayton County (2020). That ruling legally confirmed that Title VII of the Civil Rights Act of 1964 provided federal protection against employment discrimination based on gender identity or sexual orientation. Later cases delivered mixed results related to trans rights, however. A 2023 decision in which the Supreme Court held that the First Amendment allowed business to refuse to provide "expressive" services or products deemed contradictory to the owner's personal beliefs was widely considered a blow to LGBTQ rights, opening the possibility of widespread discrimination. Yet also in 2023 the court let stand a decision from a lower court that recognized gender dysphoria as protected under the Americans With Disabilities Act.

Though Biden's administration finalized revised Title IX rules in April 2024 that increased the law's antidiscrimination in education scope to include sexual orientation and gender identity, several states filed lawsuits challenging the revisions shortly after. Additionally, activists noted that the revisions did not include protection specifically for transgender athletes as well as students.

Anti-Trans State Laws

Despite some successes for transgender rights at the federal level, many state legislatures continued to introduce laws that were widely viewed as discriminatory toward transgender people and others in the LGBTQ community. It was reported that in the first half of 2021 alone, seventeen anti-LGBTQ laws were enacted in states around the US. Many of these laws targeted transgender individuals, often focusing in particular on denying transgender youths access to gender-affirming treatments and care.

Texas was one of the highest-profile states to enact anti-trans policies, in part due to its large population and national influence. In February 2022 Texas governor Greg Abbott directed state health agencies to begin classifying gender-affirming treatments for transgender youths as child abuse, and sought to investigate parents who allowed their children to access these treatments for possible criminal activity. Health experts and activists strongly criticized Abbott's order, arguing that it violated the rights of transgender youths and their family members in addition to contradicting widely accepted medical opinion. On March 2, 2022, after state authorities had begun investigating parents of transgender children for child abuse, a district court ruling temporarily blocked parts of Abbott's order.

Despite calls to repeal such laws, anti-trans legislation continued to proliferate in 2023. That year, several states passed or enacted anti-trans health care bills, most of which specifically banned minors from receiving gender-affirming care. In response, the American Medical Association (AMA), the American Academy of Pediatrics, and other groups publicly endorsed gender-affirming care, calling on governors in states considering anti-trans legislation to oppose such measures and pointing to numerous studies showing positive effects of gender-affirming care on youth. The Biden administration also publicly condemned restrictive state policies related to transgender health care. Despite that opposition, many Republican-controlled states continued to fast-track anti-trans bills, including some that sought to extend bans on transition-related care to adults as well as younger people.

The wave of anti-trans laws led to several court challenges. This led to temporary injunctions against bans on gender-affirming care in some states, and in June 2023 a federal judge permanently blocked Arkansas's ban as unconstitutional. The Supreme Court of Texas, however, ruled in late August to allow the ban on gender-affirming care for minors in that state to go into effect. Meanwhile, in response to the proliferation of anti-trans laws in Republican-controlled areas, several Democrat-controlled states began working on so-called trans "refuge" or "safe haven" laws, which would allow transgender people from out of state to seek gender-affirming care to avoid criminal prosecution.

In March 2024, Wyoming became the twenty-fourth state to have passed laws or policies that banned or restricted gender-affirming care for young people. In April, for the first time, the US Supreme Court allowed a ban on gender-affirming care for young people to go into effect when it ruled that the injunction against Idaho's ban could apply only to the plaintiffs in the lawsuit. That same month, however, also saw a federal appeals court rule that state health-care insurance plans must cover gender-affirming surgeries.

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