Kansas lawmakers recently overrode their governor’s veto so they could enact S.B. 180. That law is not just another, so-called “bathroom bill”—legislation intended to prevent transgender people from using restrooms that align with their gender identity; it also reaches “locker rooms, prisons, domestic violence shelters, and rape crisis centers.”
Since 2021, lawmakers proposed nearly 900 anti-LGBTQ+ bills, nearly 500 of which were introduced this year in 49 state legislatures and the U.S. Congress.
Many of the bills target the rights of transgender people by curtailing “basic healthcare, education, legal recognition, and the right to publicly exist”: North Dakota recently enacted a statute restricting access to sex-segregated spaces, Tennessee recently banned drag performances, fourteen states have laws prohibiting gender-affirming health care for trans minors, and Florida has enacted a barrage of anti-LGBTQ regulations that include a prohibition on discussions of sexuality and gender identity in high schools.
These laws illustrate the increasingly hostile legislative landscape in the United States for LGBTQ+ people.
While advancing policies in the name of “protection,” legislators seemingly ignore that such laws actually harm people, especially LGBTQ+ teenagers. Consider that recent polls indicate that more than 60% of LGBTQ+ teenagers experience deteriorating mental health—including depression, anxiety, and suicidal ideations—as a result of laws and policies aimed at restricting their personhood.
A variety of myths, false narratives, bad science, and misconceptions undergird anti-trans legislation. Indeed, the common trope of predatory transgender people is the product of decades of moral panics perpetuated by movies and other popular media that repeatedly portray trans people as deceptive, fraudulent, and violent.
In a classic application of crime–control theater, anti-trans bills purportedly address such “dangers” in the name of protecting [cisgender] women and girls by enhancing sex segregation in public spaces in accordance with the gender assigned at birth.
The rationale behind this strategy is either that predacious cisgender men might game trans-inclusive policies to access such spaces and harm women or the “gender-critical” feminist perspective—that transgender women are “actually” men who pose a sexual danger to “biological women.”
Although these justifications are often framed as “common sense,” they ignore the fact that both civil and criminal laws already protect such places.
The framing of the issue that [cisgender] women’s safety and trans rights are mutually exclusive advances a false narrative for two big reasons.
First, as this piece’s co-author Henry F. Fradella wrote in a research paper published earlier this year, it “rests on an unstated, factually incorrect assumption that trans people seek to access such spaces for the purposes of sexual gratification or sexual exploitation. But like everyone else, transgender people use locker rooms and restrooms to change clothes and go to the bathroom.”
Second, the notion that trans people pose dangers to cisgender women and girls lacks any semblance of empirical support. There is no association between trans-inclusive policies and more crime in those places. On the contrary, trans people are significantly more likely to be violently victimized in spaces where this type of segregation is enforced.
For instance, while incarcerated in facilities designated for men, trans women are nine to thirteen times more likely to be sexually assaulted than their cisgender counterparts. Similarly, transgender and gender non-conforming youth who are barred from using the washrooms and locker rooms that align with their gender identity are at an increased risk of sexual victimization by a ratio of 1.26 for trans boys and 2.49 for trans girls.
The desire to remove trans people from gendered spaces in this way assumes that sex-segregated spaces already provide a baseline of safety that trans-inclusive laws threaten. But victimization rates in such places belies this assumption.
In prisons, for example, women already experience high rates of sexual victimization. While correctional staff are responsible for roughly 41% of sexual assaults, the remainder of such acts involving other incarcerated people are virtually all committed by so-called “biological women.” But even in society at large, between 84% and 90% of all crimes of sexual violence are perpetrated by someone the victim knows, not a stranger lurking in the shadows (or the showers or restroom stalls) as many of these laws imagine.
Quite the contrary, trans and nonbinary people are victimized in the same spaces others experience relative safety at such high levels that upwards of 75% of trans men and 64% of trans women surveyed in the largest study of its kind reported that they routinely avoid public restrooms to minimize the chances of being harassed or assaulted.
There is one reasonable conclusion to take away from the available criminological research: trans-exclusionary laws do not protect cisgender women and girls from sexual violence or harassment, but they do result in dramatic increases in sexual and lethal violence for transgender and gender-nonconforming adults and children.
Because criminological data do not support trans-exclusionary policies, advocates of anti-trans laws often resort to selective and often flawed anecdotal evidence to support their position. Examples of such misinformation are too numerous to count and debunk here, but a recent article explains how isolated news stories, often from notoriously transphobic tabloids, conflate the actions of sexual predators with the “dangerousness” of trans women.
Although there are undeniable examples of actual transgender people committing crimes, even deeply troubling ones, they are not evidence of any behavioral trends among the broader class of trans people; such evidence does not exist.
Some proponents of trans-exclusionary policies appeal to others on the basis that any additional risk that cisgender women and girls might theoretically incur through the expansion of trans rights outweighs the needs of trans people.
Certainly, the possibility exists that a cisgender man might pose as a woman to access certain spaces under false pretenses. But that same possibility remains regardless of whether transgender people are permitted in those spaces. The data suggest that trans-inclusive access to sex-segregated spaces poses a near zero-risk scenario, and yet that still is too much for some.
This impossible standard for rights expansion should bring the motivations of trans-exclusionary policies into question because the demonstrable anti-trans violence on the other side of the scale suggests that this calculus is actually about the valuation of certain bodies and lives and the elimination of others.
Right-wing commentator Michael Knowles clearly was not speaking for all people when he told the Conservative Political Action Conference this year that “transgenderism must be eradicated from public life entirely.” Nonetheless, people like Knowles are using specious concerns about women’s safety to achieve that eliminationist goal.
Henry F. Fradella is a Professor in the School of Criminology and Criminal Justice at Arizona State University, where he also holds an affiliate appointment as a professor of law. He earned a B.A. in psychology, a master’s in forensic science, a J.D., and Ph.D. in justice studies. His research focuses on the legal aspects of criminal justice. He is the author or co-author of 12 books, including Sexual Privacy and the Law (Academica); Punishing Poverty: How Bail and Pretrial Detention Fuel Inequalities in the Criminal Justice System (University of California Press), Stop and Frisk (NYU Press), and Mental Illness and Crime (Sage). His nearly 120 articles, book chapters, reviews, and scholarly commentaries have appeared in both legal and social science outlets, including the American Journal of Criminal Law; Berkeley Journal of Criminal Law; Criminal Justice Policy Review; Criminology and Public Policy; Journal of Law and Sexuality; Law and Psychology Review; Ohio State Journal of Criminal Law; Police Quarterly; Policing, and numerous law reviews
Alexis Rowland is a PhD student in the department of Criminology, Law and Society at the University of California-Irvine. She has earned a BFA, a master’s in counseling, and a master’s in social ecology. Formerly a clinician in a correctional setting, her research now focuses on incarceration, penal policy, and punishment, especially those issues which affect gender and sexual minority populations. Her most recent work in these areas can be found in the upcoming issues of Annual Review of Criminology and Psychological Services.
