"Demons and Imps": Misinformation and Religious Pseudoscience in State Anti-Transgender Laws
|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.
|Yale Journal of Law and Feminism
|Law; Feminism; Transgender laws; LGBTQIA+ protections
|"Demons and Imps": Misinformation and Religious Pseudoscience in State Anti-Transgender Laws