“My mom and I wanted to fight this law not just to protect my health care, but also to ensure that transgender people like me can safely and fully live our truths,” said Dylan Brandt, one of our transgender youth clients in our challenge against Arkansas’ ban on gender-affirming health care. “Transgender kids across the country are having their own futures threatened by laws like this one, and it’s up to all of us to speak out, fight back, and give them hope.”

As we wrap up Pride month, hope is what we at the ACLU have for the fight for trans rights. While we can be clear about the threats in front of us — from further restrictions on the rights of trans youth to increasing efforts to target the health care of trans adults — a string of early legal victories are highlighting how the ACLU, our nationwide affiliate network, and our allies across the LGBTQ rights movement are not only fighting back, but winning.

After a historic two-week trial in Little Rock last fall, a federal judge last week overturned the nation’s first categorical ban on gender-affirming care for transgender youth, finding the 2021 Arkansas law violated the rights of transgender youth under the Equal Protection Clause, their parents under the Due Process Clause, and the First Amendment rights of their medical providers.

“The evidence showed that the prohibited medical care improves the mental health and well-being of patients and that by prohibiting it,” wrote Judge James Moody, “the state undermined the interests it claims to be advancing.”

The critical victory comes as judges are unanimously blocking similar bills passed in other states, finding legal challenges against them likely to succeed on the merits. In challenges brought by the ACLU and our nationwide affiliate network, courts in Indiana, Tennessee, and Kentucky have blocked bans in those states, finding them openly discriminatory, unconstitutional, and dangerous to the very youth they claim to protect.

Judges in Alabama and Florida have blocked enforcement of bans targeting trans youth there, with the latter declaring “gender identity is real,” and denouncing the state for refusing to listen to parents of trans youth. In Oklahoma, we’ve secured a binding non-enforcement agreement with the state’s attorney general, preserving the legality of gender-affirming care in the Sooner State until the court can address our motion to bar enforcement of the law prior to trial.

Judges have also turned a harsh eye towards restrictions on drag performances, a new category of anti-LGBTQ bill harkening back to the cross-dressing laws the ACLU defeated decades ago. In a case brought by the ACLU and the ACLU of Utah, we successfully prevented officials in St. George, Utah from prohibiting drag performances from Southern Utah Drag Stars. Legislation targeting drag shows in Tennessee and Florida have likewise been blocked in private legal challenges brought by venues threatened by this unconstitutional restriction on their speech.

And we’re far from done. Well before their bans on gender-affirming care are set to take effect, we’re getting ready for hearings against laws passed this year in Idaho and Montana. In Texas, we’ll soon be joining a coalition of organizations challenging that state’s ban targeting the health care of tens of thousands of trans youth across the state — the largest population targeted by these laws yet.

American Civil Liberties Union

Mapping Attacks on LGBTQ Rights in U.S. State Legislatures

The ACLU is tracking attacks on LGBTQ rights and working with our national network of affiliates to support LGBTQ people everywhere.

Amid an onslaught of legislative attacks targeting their safety, their dignity, and their health care, transgender people are reasonably fearful about the direction of the country’s politics. While trans people were never collectively doing great — enduring higher rates of poverty, homelessness, violence, and suicide — the concerted effort by extremists across state and federal governments to turn us into political scapegoats has only added to the dehumanization many of us face across our lives.

Last year, we told you that hope was most necessary when it’s the hardest to muster, that the light of your joy burns brightest in the dark. While we recognize these legal victories are the earliest stages of a years-long effort to protect the rights of transgender people, they offer vital signs of hope for transgender people, our families, and our allies that the just world we all deserve is not only possible — it’s well within our reach.

This Pride, instead of celebrating the history of LGBTQ+ liberation, reveling in community support, or feeling joy at having found the courage, language, or visibility to embrace oneself, transgender Floridians are crowdfunding their moves out of state, staying home to avoid having to use a public restroom, and desperately attempting to arrange for continued healthcare amid a national debate on the validity of our existence. 

This year’s legislative assault on trans lives and futures is unprecedented in both volume and vitriol. More than 450 anti-LGBTQ+ bills were filed nationwide, with anti-trans initiatives seeking to ban access to healthcare, restrooms, sports, legal protections, identity documents, and even basic recognition while criminalizing supportive loved ones and healthcare professionals; over 70 of these bills have since been signed into law. 

In Florida, speech and education in schools have been censored or prohibited, including social affirmations like using a student’s correct name and pronouns, regardless of their parents’ wishes. Gender-affirming care for youth is banned, and the 80% of trans adults who previously received their care from nurse practitioners must now find new providers. Next month, a bathroom ban levying criminal consequences will go into effect. Taking stock, it’s difficult to avoid the conclusion that  the political endgame is persecution and erasure.

The ramifications are already dire. State and national advocacy organizations have issued travel advisories urging LGBTQ+ folks to avoid Florida at all costs—even during connecting flights—against the backdrop of a declared national emergency. Since January, trans Floridians have raised over $200,000 on GoFundMe to facilitate moves to safer states. A June Data for Progress survey found 8% of trans Americans have already moved from their home state because of new anti-LGBTQ+ laws, with an additional 43% strongly considering it—a potential for hundreds of thousands of domestic refugees. 

Our bodies and senses of self have become battlegrounds for political gain and community division. Self-righteously equipped with falsehoods, ardent hypocrisy, and the hollow determination to uphold the power structures they benefit from, politicians, pundits, and the droves they incite through fear-mongering, hate, and bigotry now feel an entitlement to arbitrate human nature and what should constitute an individual’s being and medical care. Religion and morality are being manipulated to serve prejudicial, unconstitutional ends. And despite the endorsement of every major medical association nationwide on the lifesaving benefits of gender-affirming care for youth, settled medical opinion is construed as experimental. 

In response to these nationwide attacks, the American Medical Association strengthened its commitment to protecting gender-affirming care, 13 states have passed transgender sanctuary laws, and court cases challenging anti-trans healthcare legislation have so far succeeded each time. 

In a landmark victory secured by the ACLU of Arkansas just this week, the state’s ban on gender-affirming care for adolescents was permanently blocked. The court  ruled that the Arkansas law violates the constitutional rights of trans youth, their parents, and their medical providers. Critically, in his decision, US District Judge James Moody Jr. made over 300 factual findings about the reality of trans care, debunking the unfounded narratives that have proliferated nationwide, concluding what we already know to be true: gender-affirming care is lifesaving, necessary medical intervention.

Notable court victories have also been secured in an initial West Virginia SCOTUS decision and lower court rulings in Indiana, Tennessee, and Florida. 

Deciding to medically transition requires surviving a most personal journey. The overt social risks are eclipsed by the determination to do right by oneself in this short and precious life. Accessing care is expensive; even when it is attainable, the path is riddled with hurdles.

While we have seen the rights to bodily autonomy and privacy whittled away in this post-Trump, post-Roe era, bans on gender-affirming care have already been struck down by federal courts as unconstitutional sex discrimination, in violation of the 14th Amendment’s Equal Protection Clause. So too with drag bans, which have been held to violate the First Amendment right to free expression. 

In his federal ruling last week that temporarily blocks enforcement of Indiana’s ban on gender-affirming care for youth, Trump-appointed Judge Patrick Hanlon was unequivocal: preventing trans folks from accessing the affirming care they need results in “irreparable harm.”

And just two days ago, in a federal ruling that struck down Florida’s ban on Medicare coverage for gender-affirming care as unconstitutional, US District Judge Robert L. Hinkle declared, “the statute and the rule were an exercise in politics, not good medicine.” 

For anti-trans antagonists, the clock is ticking.

Today marks a historic moment in the lives of our nation’s pregnant workers: after more than a decade of advocacy on Capitol Hill, the Pregnant Workers Fairness Act (PWFA), signed by President Biden in December 2022, goes into effect. PWFA mandates “reasonable accommodations” for pregnant workers unless providing them would impose an “undue hardship” on their employer. For millions of U.S. workers, the new law promises to assure they no longer will have to choose between their paycheck and a healthy pregnancy.

Pregnancy is a normal condition of employment; more than 80 percent of all working women will have at least one child during their lives. But existing legal protections have been glaringly insufficient for workers whose duties may conflict with pregnancy’s physical realities — such as cashiers (prolonged standing), nurses (repetitive heavy lifting), custodians (exposure to chemicals), and firefighters (battling potentially lethal blazes). Under the Pregnancy Discrimination Act (PDA), enacted in 1978, pregnant workers have been entitled to temporary job modifications only if their employer provides them to others “similar in their ability or inability to work.” That language long has been used to deny needed “accommodations” to pregnant workers, on the grounds that favored non-pregnant colleagues are insufficiently “similar.”

Credit: John Mofield

Even after the Supreme Court’s 2015 Young v. United Parcel Service, Inc. ruling clarified that employers must have a compelling reason for denying accommodations to pregnant workers while granting them to others, employers — and judges — continued to withhold them. One study found that more than two-thirds of workers brought PDA failure-to-accommodate claims after Young lost their court cases.

ACLU client Michelle Durham was one of them. In March 2015, Michelle learned that she was pregnant with her first child. Michelle’s doctor told her not to lift anything over 50 pounds; because Michelle’s job duties as an Emergency Medical Technician (EMT) regularly required that she lift patients and stretchers far heavier than that, she asked her employer, Rural/Metro Corporation — a company providing medical care to underserved communities — to temporarily reassign her.

What happened next derailed Michelle’s life, and propelled her into the spotlight as an advocate for pregnant workers’ rights. Rural/Metro gave Michelle an ultimatum: Keep lifting heavy loads in violation of her doctor’s orders or go on an unpaid leave of absence for 90 days — after which she would be fired unless she returned to work. With six months to go until her due date, Michelle was terrified; she desperately needed her paycheck.

As she later put it, testifying in support of PWFA before Congress, “I wouldn’t trade the experience of being [a] mom for anything. But I will never be able to get back those months before and after [my son] was born, when all I could think about was what I was losing by being pregnant — not what I was gaining.” Ultimately, Michelle left Rural/Metro rather than risk her pregnancy. She had to move in with her grandmother, racked up credit card debt, and incurred crushing hospital bills when she delivered her son.

After filing a lawsuit, Michelle ultimately reached a settlement with Rural/Metro that provided some relief for the hardship she had experienced. The bad news is that her legal battle took 7 years, in part due to a federal judge’s ruling that, under the PDA, Michelle was not “similar” to EMTs with occupational injuries. The ACLU won reversal of that decision on appeal, but the same judge reached a similarly erroneous conclusion at a later stage of the case.

As detailed in a new explainer on PWFA’s protections — co-authored by the ACLU and the Center for WorkLife Law — pregnant people needing accommodation no longer must identify “similar” non-pregnant co-workers. Modeled on the Americans with Disabilities Act, employers must grant pregnant workers an accommodation so long as it is “reasonable” and does not impose an “undue hardship” on the employer. Such clarity will aid workers and their employers alike in reaching mutually-agreeable solutions, with less cost and disruption — not to mention delay — than litigation.

As Michelle Durham put it before Congress, “Pregnant workers need to be able to point to the law, in real time, to make their employers do the right thing so that a long-fought lawsuit isn’t necessary.” She added, “My employer could have kept me on the job, but it didn’t — because it didn’t think it had to.” Starting today, Congress has left no doubt that they do.