America’s Dark History of Criminalizing Queerness

by Adam M. Rhodes

Politicians across the country are launching a seemingly endless stream of cruel and baseless attacks on trans youth. Out of the hundreds of anti-trans bills that have been introduced in recent years, some make a familiar target of gendered bathrooms or the discussion of gender and sexuality in schools. Others target school sports or students’ pronouns, or take the extraordinary step of banning or outright criminalizing gender-affirming care for trans youth.

Earlier this month, the Texas Supreme Court ruled that Gov. Greg Abbott exceeded his authority when he ordered the state’s child protective services agency to investigate the parents of transgender kids. That same day, a federal judge blocked an Alabama law that made it a felony for doctors to provide certain transition-related care to trans youth. In March, Idaho lawmakers halted a bill that would have made providing gender-affirming care punishable by up to life in prison, calling it an overreach.

To be clear, these bills reject decades of research that tout the importance of gender-affirming care, often using blatant misinformation about the reality of trans health care and who needs it to make their point. And even if they never go into effect, they are designed to make it nearly impossible to live happily and healthily as a young trans person. But that’s the point, isn’t it?

Aside from their reliance on misinformation, what makes these efforts so shocking is the way they weaponize the criminal legal system to terrorize trans youth and the people who love them. They will slap loving parents with criminal convictions, strip compassionate doctors of their licenses, and continue to push trans youth to their breaking point.

Amid the outrage in response to this campaign, some have said that anti-trans laws don’t reflect who America is. But the reality—as queer and trans people know all too well—is that the U.S. legal system has long targeted and punished queer people simply for existing.

Laws banning cross-dressing in the U.S. date back to the 19th century. Blackened windows at gay bars are a relic of a time when it was a crime for gay people to dance, drink, or kiss. In the 1940s, 50s, and 60s, informal “three-article” rules required people to wear at least three pieces of clothing that matched their biological sex—whatever that is. Sodomy laws, which made sex between consenting gay adults a crime, lasted until a 2003 Supreme Court decision (one that experts say could be next on the chopping block using arguments of a leaked opinion that threatens to overturn the federal right to abortion).

The criminal legal system also has a history of using queerness as a weapon against defendants. In the capital murder trials of Bernina Mata, Wanda Jean Allen, and Charles Rhines, prosecutors and juries made sexual identity a primary issue, helping to secure death sentences against them.

Under this system, transgender women are commonly assumed to be sex workers in a phenomenon known as “walking while trans.” Police continue to brutalize queer people, even during the pride celebrations they so desperately want to be a part of. Study after study shows that queer people who enter the criminal legal system face particularly harsh treatment, including disproportionate sentencing and sexual assault and abuse behind bars. Trans people, for instance, are often housed in jails and prisons based on their “biological sex,” putting them at horrifying risk of abuse and assault.

As with these past efforts, the latest campaign against trans people is being driven by fear, ignorance, and a willful disregard for the facts. Transphobic legislators say they want to protect children from irreversible decisions about their gender identity and have raised undue alarm about the safety of puberty blockers and gender-affirming surgeries. But puberty blockers, for one, are not just relegated to trans youth. They have been used to treat early puberty in young kids, and endometriosis in adults, among other things.

The claim that surgeons are performing gender-affirming procedures on trans youth would be laughable if it weren’t so dangerous, said Daye Pope, director of civic engagement at the trans advocacy group TAKE Birmingham, calling it an “outright lie.”

“We’re trying to really help people understand that all this health care takes years of therapy, of working with health experts and doctors, before a lot of these young people even access the bare minimum of care, which is puberty blockers,” Pope said. “So the idea that this type of legislation is to protect anyone, especially these kids, is just such a blatant falsehood.”

But when the overarching goal is to harm people based on their identity, facts typically tend to get ignored, said Kristen Browde, co-chair of the National Trans Bar Association. Just like past laws that have targeted queer people, she says their contemporary counterparts are designed to disproportionately harm the most vulnerable among us.

“The most at risk are the people who can’t afford to travel, can’t afford to reach out beyond their state’s borders,” Browde said. “And invariably, [it will be] the poor people of color, the young, precisely the type of people that the right wing loves to pick on almost every time; and it’s disgraceful.”

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