How Pro-Trans Rights Lawmakers Can Fight the Right Wing’s Weaponization of Courts

A lot goes into running for office, like we did in Colorado in 2012 and Minnesota in 2022. There are big questions: What about our families? Our jobs? Am I up for the effort of a primary? A general election? Being an actual legislator in our state? Are we safe?

These questions are even more consequential when you’re a “first,” like we are: the first gay married legislator in Colorado (2014), and first trans woman elected to the legislature in Minnesota (2022). No part of this process has been easy, but the work is—without question—the most rewarding we have ever undertaken. Rep. Finke gets to represent her community on the local and national stage, every day hearing from trans and gender expansive youth, and their parents, looking for advice, support, or inspiration. Every day Rep. Finke does her best to serve those families that are frightened and looking for hope. But our communities are at serious risk.

Today, more than half of transgender youth have lost or are currently at risk of losing access to gender-affirming, often life-saving care in their home state — potentially putting hundreds of thousands of kids in harm’s way just for being who they are. This is the direct result of an all-out assault on the rights of transgender people in statehouses across the country with an unprecedented over 400 anti-trans bills introduced this year alone.

Right-wing politicians have been chipping away at LGBTQIA2S+ rights little by little, state by state, year by year. But the right does not have a monopoly on organizing for long-term change.

These bills are the opening volley in a deceptive strategy that right-wing politicians are now bringing to their attacks on trans and LGBTQIA2S+ rights. Perhaps counterintuitively, their playbook involves passing egregiously authoritarian laws in their state, knowing–in fact, hoping–they will be challenged in court for violating the United States Constitution. Their end-game? Appealing judicial decisions all the way to the Supreme Court, which is now packed with their ideological allies.

The playbook is already unfolding. After a federal judge in Florida put a stop to the state’s ban on gender-affirming care for transgender youth, the state only got more extreme. On Friday, the Board of Medicine proposed guidelines that would rewind standards of care for transgender patients to the disastrous standards of the year 1979. In a state where anti-trans laws have led to people going into hiding or delaying coming out, the 1979 requirements that transgender people must have existing social support and be out publicly before receiving care are particularly dangerous.

From Florida to Indiana to Arkansas, if any federal judge’s decisions are appealed and a friendly Supreme Court takes up the case, anti-trans and LGBTQIA2S+ discrimination may become the law of the land across the entire country.

This strategy for national control begins quietly in state legislatures. In the Dobbs v. Jackson decision, which overturned 50 years of precedent ensuring abortion rights under Roe v. Wade, the opening play was a law striking down abortion rights in Mississippi. The playbook is in full execution in other areas as well, including blocking state efforts on gun reform in New York, attempting to undermine American democracy as we know it in North Carolina, and codifying anti-LGBTQIA2S+ discrimination in Colorado.

State legislators and their allies are thus our nation’s first and most important line of defense against the full-on right-wing assault on our democracy, including in the fight for trans and LGBTQIA2S+ people’s fundamental rights and freedoms. The good news is that we can fight back.

Yes, it is a win every time a harmful law is blocked and trans people defeat the latest attack of the day. But we must defend trans rights in our state houses by stopping more of these bills from becoming law in the first place so they can’t reach the courts; passing protections that create safe havens for trans and LGBTQIA2S+ people; and building progressive power in the long run so government can again work for the people, not an ideological minority.

From Florida to Indiana to Arkansas, if any federal judge’s decisions are appealed and a friendly Supreme Court takes up the case, anti-trans and LGBTQIA2S+ discrimination may become the law of the land across the entire country.

In states where attacks abound, heroes like State Sen. Machaela Cavanaugh have filibustered the entire Nebraska state legislative session in protest of a bill banning gender-affirming care for Nebraska youth, becoming the first lawmaker to filibuster every bill introduced to the floor in the 90-day session. And in a testament to the power of the trans community, advocates, parents, and children in Arizona changed the views of a state lawmaker on a critical committee who joined his colleagues in rejecting a bill to ban medical care for trans youth in the state.

The wind is at our back in states where the balance of power recently shifted. After years of organizing to deliver a progressive majority in Minnesota, Gov. Tim Waltz signed an executive order protecting the rights of LGBTQIA2S+ people to seek gender-affirming care and one of us spearheaded legislation that made Minnesota a Trans Refuge state. Minnesota is joining a small but growing coalition of safe states, like Illinois—with legal protections for gender-affirming care providers and patients within state borders—and Washington, DC, Maryland, and California—who protect patients and providers even if they are fleeing conduct that occurred in another state. We implore pro-trans rights majorities elsewhere to follow suit.

Last year, State Innovation Exchange (SiX) partnered with Michigan lawmakers in the minority to lay the groundwork for transformational policies to be passed in the event that lawmakers who want to protect trans people gained a majority. Since then, the State Senate has voted to amend the state’s Elliott-Larsen Civil Rights Act to explicitly include protections against discrimination for LGBTQIA2S+ Michiganders. SiX has also worked with lawmakers and advocates behind the scenes to advance pro-LGBTQIA2S+ legislation in Arizona, Colorado, Kansas, Maryland, and Nevada. Investing in flipping statehouses and empowering legislators to pass inclusive policies is how we can get this done elsewhere.

Right-wing politicians have been chipping away at LGBTQIA2S+ rights little by little, state by state, year by year. But the right does not have a monopoly on organizing for long-term change. Deploying our own successful playbook requires us to go one last, big step further: a wholesale rethinking of how state government works. Every chance we get, our statehouse majorities mustn’t hesitate to radically expand democracy, bolster up workers’ rights, and shore up economic justice.

Alongside the fight in the states, we have to think even bigger when it comes to our future—a future where straight, cis folks do not have power over LGBTQIA2S+ people, but share power with the LGBTQIA2S+ community at every level—from schools to the U.S. Supreme Court. But only then will our voices overpower the right-wing machine’s attempts at authoritarian rule that results in the anti-trans policies we’re seeing today.