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"Demons and Imps": Misinformation and Religious Pseudoscience in State Anti-Transgender Laws
Alstott, Anne Olgun, Melisa Robinson, Henry McNamara, Meredithe
Alstott, Anne
Olgun, Melisa
Robinson, Henry
McNamara, Meredithe
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Demons and Imps.pdf
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Abstract
In a hearing before the Florida House of Representatives, Rep.
Webster Barnaby addressed transgender witnesses as "demons and imps who
come and parade before us and pretend that you are part of this world."
Barnaby's remarkably candid statement is an outlier because it reveals that
religion-rather than sound science-underlies the new wave of antitransgender
laws that have been adopted by at least 20 states since 2021, with
the vast majority enacted in 2023. In legislatures, courts, and agency hearings,
proponents of anti-trans measures - in contrast to Barnaby - frame their
arguments in scientific terms, contending that biology and medicine dictate
exceptionalist treatment of trans gender people.
In this Article, we make three contributions. First, we debunk these
purported scientific claims, showing (with full citations to the scientific
literature) that the core arguments for anti-trans laws rest on misinformation
( defined as false information that could, with due diligence, be determined to
be false) and religious pseudoscience ( defined as statements that use scientific
vocabulary but rest on religious tenets and defy sound science). We closely
examine key state legal documents, including legislation, attorney general
opinions, and administrative agency documents. Our analysis shows that the
core and repeated "scientific" arguments in these documents defy sound
science and rest, instead, on religious principles about the binary nature of sex
and gender and the corruption of secular society.
Second, we show that the "playbook" of misinformation and
pseudoscience that has long fueled anti-LGBTQIA+ and anti-abortion laws is
now being deployed by conservative religious organizations to promote and
defend anti-trans laws. Not all religious organizations oppose transgender and
queer rights, and not all opposition to transgender rights is based in religion.
Still, close-knit conservative Catholic and evangelical Protestant groups have
been on the front lines of efforts to promote and defend anti-trans laws. Leaked
documents and emails show how medical and legal groups united by religion
collaborated to create purported "scientific" documents and identify purported
"experts" to push anti-trans measures.
Third, we address the limitations of litigation in com batting anti-trans laws.
Transgender plaintiffs challenging healthcare bans won decisive victories at the
trial level, with federal and state courts in six jurisdictions forcefully rejecting
the misinformation and purported "experts" put forward by the states. In the
summer of 2023, however, subsequent decisions in federal appellate courts and
state supreme courts overturned these decisions, with the higher courts giving
credence to states' pseudoscientific claims and sharply narrowing constitutional
protections for transgender youth and their families. These decisions explicitly
connected transgender rights to abortion rights and adopted the Dobbs
approach of limiting constitutional protections based on nineteenth-century
social conditions.
Litigation remains ongoing, and recent court decisions have addressed only
preliminary injunctions based on limited factual records, so the plaintiffs may
yet prevail in some cases. Even in the best case, however, litigation takes
years-with harm accruing to transgender people in the meantime- and is
vulnerable to gaming by states that are doubling down, enacting new anti-trans
laws even as existing ones are struck down.
We conclude that litigation is a welcome but limited remedy and that
additional legal and policy measures are worth exploring. These include the
enactment of express protections for LGBTQIA+ people by Congress and
federal agencies. More speculatively, we consider procedural protections that
could be adopted at the state level as well as possibilities for private action by
researchers and nonprofit organizations. Although there are no easy answers,
this Article outlines a range of possible approaches, some of which would
make it more difficult for states to target queer people and others of which
would tackle the broader problem of misinformation and religious
pseudoscience enacted into law. We also explore potential challenges under the
Establishment Clause, which could prompt courts, legislatures, executives, and
popular movements to reject pretextual secular claims when-as here-the
underlying motivation and asserted "facts" are religious in nature and amount
to the state adoption of religious doctrine.