by David Lloyd, senior policy advisor, The Kennedy Forum
Transgender and nonbinary children and youth are under unprecedented attack, as more than 20 state legislatures have introduced bills that would ban – and in some cases criminalize – their participation in organized sports, restrict their access to gender-affirming health care, and/or prohibit them from using bathrooms consistent with their gender identity. The Kennedy Forum strongly opposes these bills, which would write discrimination into state laws and harm both the physical and mental health of transgender and nonbinary youth.
Make no mistake, these bills are dehumanizing attempts to prevent transgender and nonbinary children from being themselves. The threats these bills represent are difficult to overstate. Even before these bills, transgender and nonbinary children and youth already faced significant discrimination, causing higher rates of depression, eating disorders, and suicidal ideation and self-harm. The data for transgender and nonbinary youth is particularly stark, with more than half reporting having seriously considered suicide and over 60% engaging in self-harm in the past 12 months.
A significant body of research also shows that gender-affirming health care and social transition improves the mental health of transgender and nonbinary youth. That is why numerous professional associations, including the American Psychological Association, American Academy of Child and Adolescent Psychiatry (AACAP), American Psychiatric Association, and American Academy of Pediatrics, support transgender and nonbinary youth’s access to gender-affirming health care.
In its position statement against anti-trans bills, AACAP strongly opposes any efforts to block timely access to care because doing so “has been shown to increase youths’ risk for suicidal ideation and other negative mental health outcomes.” Indeed, even when bills attacking transgender youth don’t pass, “When discrimination is given a bill number, it can be devastating,” according to Sam Brinton, vice president for advocacy and government affairs at The Trevor Project, which seeks to end suicide among LGBTQ youth and is a close partner of The Kennedy Forum.
For example, when a wave of states banned same-sex marriage between 2001 to 2005, lesbian, gay, and bisexual (LGB) adults living in those states saw dramatic increases in poor mental health outcomes – including a 36% increase in mood disorders, a 248% increase in generalized anxiety disorder, and a 42% increase in alcohol use disorder. LGB adults living in states that did not adopt discriminatory policies saw no increases.
Another study looked at three states (Michigan, North Carolina, and Utah) that passed laws allowing discrimination against same-sex couples by service providers. It found that LGBTQ adults reporting mental distress rose to 33% after the laws were passed, up significantly from 22% prior to the law’s passage. In other states that did not pass such laws, there was no statistically significant increase.
For transgender and nonbinary children and youth the stakes are even higher – with the current bills proposing deeply harmful, state-sanctioned intrusion into their daily lives and threatening their health. Advocates around the country are mobilizing against these backwards bills, and the Republican governors in South Dakota and Arkansas vetoed bills (although both have supported other anti-trans measures).
Federally, policy is moving in the right direction. In 2016, the Obama Administration issued landmark guidance to public schools nationwide clarifying that the federal law (Title X) that bans sex discrimination in education also protects transgender students. Unfortunately, in February 2017, the Trump Administration withdrew this guidance, creating confusion about what Title X required. On January 29, President Biden issued an Executive Order on Preventing and Combating Discrimination Based on Gender Identity or Sexual Orientation that explicitly rejects the Trump Administration’s contention that Title X does not protect transgender students.
In doing so, President Biden pointed to a historic June 2020 U.S. Supreme Court ruling in Bostock v. Clayton County. The Court held that Title VII of the Civil Rights Act of 1964, which prohibits discrimination “based on sex,” extends to discrimination based on sexual orientation and gender identify because, according to the Court, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Last August, the 11th Circuit Court of Appeals applied the Supreme Court’s Bostock holding (outlawing sex discrimination under Title VII) to Title X’s prohibition of sex discrimination to strike down a Florida school district’s policy barring transgender students from using a restroom or locker room consistent with their gender identity. The 11th Circuit also ruled the policy violated the student’s equal protection rights under the U.S. Constitution.
Similarly, the Department of Defense took steps to allow transgender individuals to openly serve their country in the military in 2016, while the Trump Administration withdrew these policies despite military opposition. On March 31, the Department of Defense announced it was restoring its original 2016 policies. Thus, not only are the flurry of anti-trans state bills targeting children and youth harmful to students, but they also violate students’ Title X and constitutional rights and run counter to the direction of the U.S. military. States should therefore reject these attacks that attempt to take away fundamental rights from children and youth. Like states’ attacks on marriage equality in the 2000s, these attacks will be harshly judged by history.