There are a number of issues targeted in state legislation bills that the American Civil Liberties Union has identified. Most center on these core issues:
Preliminary and in some cases permanent injunctions have been granted across a few states to stop the enforcement of laws which ban gender-affirming care because such bans on healthcare are likely unconstitutional. Federal courts have thus far found that bans on gender-affirming care are unconstitutional under the Fourteenth Amendment.
Below are a few examples of such decisions:
In the Eighth Circuit, covering states such as Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, the federal circuit court decided in the case Brandt v. Rutledge in August 2022 that Arkansas law banning gender-affirming care for minors was likely unconstitutional and affirmed the lower-court's decision to issue a preliminary injunction stopping the law from being enforced.
In Florida, in the case Jane Doe v. Ladapo, decided in June 2023, a federal court granted a preliminary injunction to stop a law from being enforced which prohibited transgender minors from receiving gender-affirming care such as puberty blockers and hormones and also prohibited doctors from providing such care. The law was found to be likely unconstitutional.
In Tennessee, in the case L.W. et. al. v. Skrmetti decided in June 2023, a federal court granted a preliminary injunction, stopping the law which banned gender-affirming care for minors because the court found that such a ban was likely unconstitutional.
In Kentucky, in the case Jane Doe et. al. v. Thornbury decided in June 2023, a federal court granted a preliminary injunction, stopping the enforcement of SB 150, because the law’s prohibition on the use of puberty-blockers and hormones likely violates the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.
Other courts in Indiana and Alabama have also temporarily blocked laws banning gender affirming care.
Public accommodations are places accessible to the public, such as retail stores, restaurants, parks, hospitals, and schools. In a 2014 study conducted in Massachusetts, 65% of transgender people reported experiencing discrimination in a place of public accommodation in the past 12 months. The study revealed that bathrooms in restaurants, libraries, cinemas, shopping malls, airports, and other public places were also locations of frequent, sometimes serious harassment and abuse of transgender people. The study found that discrimination caused transgender people to postpone health care while simultaneously increasing negative health outcomes. Some states have public accommodation non-discrimination laws protecting people on the basis of sexual orientation or gender identity.
Title IX Prohibits Discrimination Based on Sexual Orientation and Gender Identity in Education. The U.S. Department of Education interprets Title IX's prohibition on discrimination "on the basis of sex" to encompass discrimination on the basis of sexual orientation and gender identity, consistent with the U.S. Supreme Court's ruling and analysis in Bostock v. Clayton County, Georgia.
Other Federal Court cases, which affect different parts of the United States but not the entire country, have also interpreted Title IX or the equal protection clause in the Constitution in different ways that affect transgender and gender-conforming students.
In the 2023 case of Adams v. School Board of St. John's County, the 11th Circuit Court of Appeals (affecting Alabama, Florida, and Georgia) ruled that a Florida school board did not violate a transgender high school student's equal protection rights when it banned him from using the boys' bathroom.
In the 2020 case of Grimm v. Gloucester County School Board, the Fourth Circuit Court of Appeals (affecting Maryland, North Carolina, South Carolina, West Virginia, and Virginia) ruled that the equal protection clause of the Constitution and Title IX protect transgender students from school bathroom policies that prohibit them from affirming their gender. The U.S. Supreme Court refused to review the decision in June 2021.
In the 2016 case of Dodds v. Department of Education, the Sixth Circuit Court of Appeals (affecting Kentucky, Michigan, Ohio, and Tennessee) ruled that an 11-year-old transgender student should continue to be allowed to use the girls' bathroom because it was likely that if she was stopped from using the girls' bathroom that it would constitute discrimination, that she would suffer harm, and that protecting her constitutional and civil rights was in the public interest.
Title IX Prohibits Discrimination Based on Sexual Orientation and Gender Identity in Education.
The U.S. Department of Education interprets Title IX's prohibition on discrimination ‘‘on the basis of sex’’ to encompass discrimination based on sexual orientation and gender identity, consistent with the U.S. Supreme Court’s ruling and analysis in Bostock v. Clayton County, Georgia.
The NCAA Board of Governors adopted a sport-by-sport approach to transgender participation that preserves opportunities for transgender student-athletes. The policy aligns transgender student-athlete participation in college sports with the United States Olympic and Paralympic Committee and International Olympic Committee policies. Every athletic organization has different policies that can be researched, with some being found here: TRANSATHLETE Organization & Governing body policy.
Books that feature trans characters or speak to trans identity have been banned in the United States with increasing regularity. These bans are taking place at the state and school district levels.
In addition to book bans, freedom of expression has also been limited through a series of bills that restrict drag performance. Many of these bills define a drag performer as a person who dresses in clothing that does not match their gender assigned at birth. Under this definition, trans people could be penalized for expressing their gender in public spaces.
Title VII of the federal Civil Rights Act of 1964 protects workers in protected classes, including transgender workers, from discrimination.
Bostock v. Clayton County, Georgia, (2020) was a Supreme Court case that states that an employer who intentionally fires an employee for being transgender violates Title VII of the Civil Rights Act of 1964.
Executive Order 13988 of January 20, 2021, titled Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, states that all "persons should receive equal treatment under the law, no matter their gender identity or sexual orientation."
303 Creative LLC v. Elenis was decided June 30, 2023 and held that the "First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees" such as designing websites for LGBTQ weddings regardless of the Colorado Anti-Discrimination Act which limits a public accommodation's ability to refuse services to a customer based on their identity.
Accurate and consistent IDs are often necessary for individuals to be able to fully participate in society without discrimination. Identification is often necessary to open bank accounts, start new jobs, enroll in school, and travel internationally. The name and gender change process on identification documents can be complicated, costly, and varies widely from state to state. Many state laws and federal policies have intrusive and burdensome requirements—such as proof of surgery or court orders—that have created barriers to updating necessary IDs.
The UCLA Williams Institute issued a report that analyzes how state policies impact the number of trans individuals who have accurate identification and how having inaccurate IDs can lead to harassment and discrimination for trans individuals. Read the report here: Gender Marker Changes on State ID Documents: State-Level Policy Impacts - Williams Institute (ucla.edu)
The State Department changed its policies and process regarding gender markers on passports in 2022. You can learn more about it on their website here: Selecting your Gender Marker (state.gov).
You can learn more about state-by-state guidelines for changing IDs by looking at this map which covers driver's licenses, birth certificates, and name change policies and includes citations to the laws or policies.
The National Center for Transgender Equality also has a self-help guide that outlines the process for both federal documents, such as social security records, and state documents like licenses.
Lambda Legal also has an FAQ page and a page covering resources for changing identity documents.