Transgender Policymaking: The View from the States

Abstract The executive branch and federal courts and, occasionally Congress, have played key roles in transgender policymaking, but state governments have been particularly important actors in recent years. This article examines the prominent role of state governments in defining the scope of equal rights protections for the nation’s transgender community. Some states have expanded transgender rights, whereas others have limited them, with a number of states also preempting local governments’ ability to enact protective measures. State attorneys general have also filed suit challenging the federal government’s efforts to guarantee transgender rights. In general, transgender policymaking demonstrates continuity with patterns highlighted in recent federalism scholarship. Consistent with policymaking in other areas in a polarized era, state transgender policymaking is characterized by “variable speed federalism,” whereby certain states move more quickly than others in advancing transgender rights. Additionally, in a development particularly applicable to morality policy, advances in transgender rights in certain states and jurisdictions have sparked backlash in other states and produced emotionally charged interactions leaving little room for bargaining and compromise.