Conservative lawmakers across the country are set to introduce novel laws limiting the reach of gender ideology in 2024.
In the past two years, Republican-led states have tried to find ways to limit the impact of the transgender rights movement, passing laws regulating areas from sports to education.
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The lion’s share of such laws have focused on children, offering protections for gender-based sports programs and the separation of bathrooms and locker rooms by biological sex. In addition, as many as 22 states have passed laws banning the use of gender transition surgeries, cross-sex hormones, and related practices on children claiming transgender identity.
According to the Human Rights Campaign, the nation’s largest LGBT lobby, those protections cover only 35.1% of U.S. teenagers aged 13 to 17.
Some of the laws already in place have attracted lawsuits, with some advancing to the stage of petitioning the Supreme Court for a hearing. Many of those cases could present a challenge to the high court’s 2020 ruling in Bostock v. Clayton County, which included transgender identity in the list of statuses protected by employment law. However, the Supreme Court has so far rejected each petition for certiorari, including in cases out of Missouri, West Virginia, and Virginia.
While some of those laws are stuck in litigation, which will also play out in 2024, lawmakers in some states are eyeing new ways to limit the transgender movement legally, medically, and politically, including for adults.
“There’s an all-out war,” American Principles Project president Terry Schilling told the Washington Examiner. “There is a culture war, but it’s not been from the right, the culture war has been from the left 100%. Finally, the right is waking up and recognizing this for the threat that it is — and it’s just one part of the culture war, it’s not everything, but it’s a big part.”
Missouri’s to challenge Bostock?
A piece of legislation introduced earlier this month in the Show-Me State would block employers from allowing transgender-identifying employees to use a bathroom that is not designated for their biological sex.
Arguing that requiring different arrangements could create a “hostile work environment,” the bill would ensure that employers cannot force employees into sharing restrooms and locker rooms with people of the opposite sex.
However, as currently written, the bill does provide an exception to people who have gone through “a full medical procedure to change his or her sex.” The Missouri Commission on Human Rights would be charged with enforcing this law, and if passed in 2024, it would take effect in January 2025.
The provision, if enacted, could pose a direct challenge to Bostock, in which the Supreme Court decided that sexual orientation and gender identity should be included in the definition of “sex discrimination” in Title VII of the Civil Rights Act of 1964, which deals with employment law.
Earlier this year, Missouri Attorney General Andrew Bailey told the Washington Examiner that he is hoping his state can regulate transgender drugs and surgeries for adults as well as children.
Raising the age limit on gender transition procedures
While many states have already banned gender transition surgeries for minors below the age of 18, some states will look at ways to raise the age limit beyond the age of majority, to 21 or even 26 years old.
Earlier this year, a bill in Oklahoma sought to raise the age at which an individual can seek surgical and chemical interventions for gender transition to 26 years old. A violation of the law would have resulted in the revocation of the medical license of the providing physician.
A separate bill aimed to ban the procedures until the age of 21.
While both bills died in committee, 2024 is poised to see lawmakers pursue more creative ways to delay the procedures.
For example, South Carolina lawmakers introduced a bill last month that would block Medicaid reimbursements for gender transition procedures until the age of 26.
Florida is already in the middle of litigation over its determination that state Medicaid dollars would not go toward gender transitions at all, which prompted the Biden administration to intervene, citing Bostock in an argument that the state was violating civil rights law.
Expanding legal liability to doctors
The number of detransitioners, or people who regret their gender transitions and often feel as though doctors coaxed them into the procedures, has increased along with the notoriety of the phenomenon.
Their stories are often similar: The detransitioner went through an identity crisis at a young, adolescent age, obtained a psychiatric assessment telling them they were in the wrong body, and were sent along an irreversible medical route characterized by drugs that sterilize them and surgeries that remove reproductive body parts such as breasts, uteruses, vaginas, and penises.
In many cases, detransitioners also say that both they and their parents were bullied into seeking gender transitions, with doctors raising the specter of the child’s suicide without a medical transition.
This phenomenon has prompted some lawmakers to extend medical malpractice liability to doctors who have guided children toward the interventions.
One form of this bill, which could see legal challenges in 2024, was passed in Arkansas earlier this year and signed by Gov. Sarah Huckabee Sanders (R-AR).
A bill setting up the process for filing lawsuits against doctors who push gender transitions on children has also been introduced in New Hampshire for the 2024 legislative session. It would give those harmed by transition procedures 20 years from the age of 21 to file for damages “including emotional distress, caused by gender transition surgery, administration of puberty blocking drugs and/or the administration of cross-sex hormones.”
Advocates for child transition surgeries are critical of these laws, as they discourage doctors from performing the operations in the first place, lowering the number of physicians willing to take the risk.
Teaching that sex is immutable in school
A South Carolina bill introduced last week would require that children attending K-12 public schools in the Palmetto State learn that sex is an immutable characteristic and cannot be changed.
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“It must be the policy of every public K-12 educational institution that is provided in this State that the sex of a person is an immutable biological trait and that it is false to ascribe to a person a pronoun that does not correspond to such person’s sex,” the bill stated.
It would also bar school employees from being required to use “preferred pronouns” for others, tell children their own, or provide children with potential alternatives to the pronouns that correspond with their sex.
“2024 is the big decision point for all this. 2024 is going to determine if the American people see the intents from the left as what they are, which is the final battle to take over all of our institutions,” Schilling concluded. “If there’s no consequences for doing all this stuff in the elections, and then they don’t change power, well then their culture war worked.”
