In statehouse after statehouse across the United States, lawmakers are eroding rights related to gender and sexuality. They seek a double win for the Christian right and their champions and helpmates in the Republican Party, building Christian nationalist power as well as achieving their concrete goals to reduce or eliminate the life chances for women and LGBTQ people. Outlawing abortion and gender-affirming health care is but one means to this end—one that also threatens to exhaust resistance to this political project by fracturing it over hundreds of individual legislative fights spread across the country.
Republicans in states like Alabama and Missouri are considering laws that would expand the Texas-style anti-abortion vigilantism of Senate Bill 8 (like Alabama House Bill 23 and Missouri Senate Bill 778), along with laws criminalizing the provision of hormones and puberty blockers to minors. An Alabama gender-affirming health care ban has already passed the state Senate, and if it passes the House it is expected to be signed. “Bills like this basically ask us to practice medicine in violation of professional standards of care,” a Missouri physician serving transgender youth said of their state’s proposed ban. Missouri is also considering a bill that would expand the vigilante-style measures to allow any member of the public to sue any Missouri resident who helps someone get an abortion out of state, a clearly unconstitutional proposal.
Some of these bills, of course, may never pass, and even if they did would be immediately challenged in court. But to look at the current race to undermine reproductive freedom and the massive resistance to the existence of LGBTQ people as a legislative campaign is, unfortunately, to underplay the aims of the right. While clinging to fantasies of “law and order” and fidelity to “originalism,” the right is comfortable working outside the constraints of what’s constitutional and, in some cases, beyond the law itself. One way that advocates have pushed back is through civil rights challenges, knowing that between stays on enforcement and the slow maneuvering of the legal system, it could take years for these measures to move through the courts and receive a final determination. Though with the federal courts and the highest court increasingly hostile to civil rights claims, the future looks only more grim for gender and reproductive justice.
Some advocates know and openly acknowledge this. It is not so unusual right now to hear the forecast, “After Roe is overturned.” But other major rights cases could be imperiled now that Griswold v. Connecticut, the right to contraception, is apparently up for debate, as my colleague Matt Ford argued after Senator Marsha Blackburn called that ruling “constitutionally unsound” last week in the Judge Ketanji Brown Jackson confirmation hearings. Obergefell v. Hodges, establishing marriage equality, and Lawrence v. Texas, overturning laws criminalizing homosexual sex acts, are in the crosshairs, then, too.
The tendency to look for shelter in the law remains powerful, especially as the Christian right and its allies in the judiciary demolish what were (wrongly) presumed to be stable legal norms. Dobbs v. Jackson, the case that could overturn legal access to abortion and on which a decision is imminent, concerns an anti-abortion law meant precisely to overturn Roe. Republican lawmakers continue to jockey for who can do the most damage on abortion, with near-total bans coming fast this year, along with laws meant to criminalize self-managed abortion—laws they know Roe could block; thus they are banking on its demise. The Christian right built a federal judiciary anticipating these setbacks, just trials to suffer on the way to the country it wants.
The starkest proof of what elected officials can achieve without passing a single new law is in the campaign against trans and nonbinary kids and their families, fueled by Texas Governor Greg Abbott and Attorney General Ken Paxton. In 2021, the Republican-controlled Texas Legislature considered a bill banning gender-affirming health care for minors introduced by Representative Matt Krause, who, along with other top Republicans in the state, has made criminalizing the supportive parents of trans kids a pet cause. The same session, the state Legislature also considered a bill that would define some forms of gender-affirming care as child abuse. Both bills failed. Still, in February Krause declared victory. “The Attorney General has concluded that gender modification procedures, including hormone treatments, are considered child abuse under Texas law,” Krause tweeted. What Paxton had done was publish a PDF, which he called his “formal attorney general opinion,” claiming that he believed the law already said what Krause wanted it to say, and indeed failed to change it to say.
What followed, unlike Krause’s original proposal, has now been widely reported: Nearly immediately, the state’s Department of Family and Protective Services opened child abuse investigations against the parents of trans and nonbinary kids. In another departure from policy, investigators were reportedly told they must pursue the investigations even if they found no abuse, and not to communicate by text or email about the cases. Paxton’s directive also instructed members of the public to report on parents, marshaling anti-trans sentiments into tools to exercise state power to proscribe gender identity under threat of criminal penalties.
Paxton’s action was hard to describe, perhaps
intentionally so. It wasn’t passing a new law. It was posting a legally
nonbinding document. The child abuse investigations have been temporarily halted by court order after one of
the parents who was investigated filed a legal challenge. Yet Paxton’s “opinion” has
painted a target on a whole community. It has become a tacit endorsement of the
kinds of vigilante surveillance and harassment
that health care providers and the kids they serve have already been facing. Some
health care providers have stopped
serving trans kids, which—along with the fear of investigations resuming—has
prompted parents to plan to leave the state.
With his legally nonbinding “opinion” on gender-affirming health care, Paxton helped make the attacks on trans kids a national political cause—and one that Abbott’s campaign said was a “winning issue” that helped him hold onto his seat in the state primary election that shortly followed. At the same time, in Florida Governor Ron DeSantis was working to sell an anti-LGBTQ bill that would permit parents to bring civil suits against educators who they believed were inappropriately introducing sexual orientation or gender identity into the classroom. The bill was dubbed “Don’t Say Gay” by its opponents, but it was much broader, putting educators in the position of having to conform to what might be the most homophobic, most transphobic interpretations of their work with students in order to hold off potential lawsuits against them.
“Don’t Say Gay” was another vigilante-type tactic borrowed
from the Texas anti-abortion law—one that was meant to put enforcement of the
law in the hands of the public, an act also meant to skirt the protections
still in force under Roe. The Florida law is already facing
a constitutional challenge, and of course now Texas Lieutenant Governor Dan
Patrick wants
to have his own Texas version, saying he will prioritize its passage at the next
legislative session.
For a host of reasons, in this moment it would be a mistake to look primarily to the law to defeat this crusade. The Christian right built a federal judiciary to remake a country in its image, not win a court case. They may want to control our bodies, but they also want to ensure we remain at their mercy. They must know that abortion, contraception, homosexuality, and gender transition can’t be legislated out of existence, but they can be—and they want them to be—burdened with the risk of losing one’s freedom.
Advocates seeking to stop this crusade, then, need to ask: Is the goal to protect a right, or to protect people? They are not the same thing.
