Policing Sex, Sexuality, and Gender

Policing Sex, Sexuality and Gender

December 12, 2023

This report makes clear that the anti-LGBTQ+ pseudoscience network we identify supports and is supported by white Christian nationalist ideology that seeks to privilege straight, white, cisgender Christians in public policy and replace science and American law with Christian theology.[1] This report nuances that overarching goal by showing how anti-LGBTQ+ pseudoscience is advanced to end the affirming care model and subsequently enact other restrictions on freedom including limits on bodily autonomy, freedom of association, expression, and speech. Namely, the goals of many Legal Advocacy and Think Tank (LATT) and Narrative Manipulation (NM) groups are built on the pseudoscientific claim that LGBTQ+ identity spreads through social contagion, which serves to justify restrictions on any expression of LGBTQ+ identity (e.g., book bans, bans on trans students in sport, drag bans).

One important question left to answer is how? How will pseudoscientific claims, once written into American law, be enforced? In this chapter, we answer this question by examining some recent developments in anti-abortion and anti-LGBTQ+ policy, specifically at the intersection of data privacy concerns and medical malpractice law. In addition, we reflect on the network analysis to help gauge the potential for future anti-LGBTQ+ movement activity. Specifically, the analysis suggests a convergence of organizations around a proposed agenda to reshape the federal government to fit a right-wing extremist vision for government administration to curtail the civil liberties, civil rights and health care of minoritized populations in the U.S. and derail scientific inquiry that does not conform to far- and religious right ideological assumptions about sex, sexuality, gender, education and the environment, known as Project 2025.

Show Me Yours: Policing Sex and Gender

When entrenched views are challenged, the dominant power system will attempt to resist and retrench. The manufactured debate over gender-affirming care is one of many examples of reactionary social movements designed to help suppress challenges to long-held social conventions like gender roles, religious establishment, or the fight against the social safety net. While helping reinforce anti-LGBTQ+ ideologies, the groups featured in this report have put their ideologies into practice and advocated for policies that attack fundamental freedoms, including freedom of association, speech, privacy and religion. These attacks are evident in the way governments are introducing and adopting laws banning gender-affirming care, trans students in school sports, and abortion.

Calls to police transgender people, their families and care providers cannot be fully understood without considering the intersectional nature of oppression. For example, among LGBTQ+ people of color, experiences with law enforcement and policing are measurably different than the experiences of white LGBTQ+ and white straight or cisgender people.[2] In addition to disproportionately experiencing violent victimization, many Black and Hispanic trans people report feeling uncomfortable even asking law enforcement for help when they are victimized by others. That is largely because of institutionalized racism, sexism, homophobia and transphobia in contemporary policing practices and policies.[3]

These same power systems structure students’ interactions in American schools. Policy decisions built on racism, heteronormativity and cisnormativity that favor “hypercriminalization” are often enforced against Black young people.[4] Punitive policies limit educational opportunities for students (pushing them out of class), with negative effects on academics and the effect of often funneling Black students into a “school-to-prison pipeline.”[5]

How do anti-transgender policies, built on pseudoscientific assumptions about gender and sexual identity development, fit into this hypercriminalization paradigm? Anti-LGBTQ+ policies – like bans on trans students in sports or in restrooms or gender-affirming care bans – must be enforced. States like Florida,[6] Tennessee,[7] Alabama,[8] Missouri[9] and Texas[10] have subpoenaed the medical records of transgender people. Some states have also considered forcing teachers to out students to their caregivers, even if they are rejected or face stigmatization.[11] Local school boards are considering these policies across the country[12], and this is a major focus of several network members, including narrative manipulation groups like Our Duty in California, who push the “parental rights” framing.[13]

Some sports organizations have turned to hormone testing athletes[14], and despite its discriminatory and eugenicist origins and flawed assumptions about supposed “normal” levels of hormones like testosterone and estrogen in the human body, it remains a consistent practice for “verifying” the gender of trans college athletes.[15] In Ohio, the state House passed a bill in 2022 that would require “genital inspections” of high school and college athletes accused of being transgender and competing in the “wrong” sporting division.[16]

Some states, such as Utah,[17] investigate alleged violations of trans sports bans based on complaints from parents – usually when a student loses to a suspected transgender athlete. Because transphobia is deeply intertwined with sexism, many of these accusations center the notion popularized by NM groups that girls’ sports are being invaded by men. In Utah, a cisgender girl was accused of not looking “feminine enough” after she won a state championship event. The subsequent investigation of her gender identity led the state to review her enrollment records since kindergarten.[18] Another cisfemale Canadian student athlete was challenged and “accosted” for having the “wrong” haircut.[19]

Enforcement of anti-trans laws necessarily involves policing cisgender students’ bodies, but this does not mean the effects of the laws are not disproportionately felt by trans students who are forced out of competitions, having their participation in school activities curtailed simply because they are transgender or nonbinary. The invasion of privacy inherent in the state acquisition of medical data to police gender identity and abortion is also a concern given the ubiquity of personal data collected through new technologies.

A June 2023 report by the nonprofit Project on Government Oversight highlights the correlation between the prevalence of law enforcement subpoenas for geolocation data from cellphones and gender-affirming care bans.[20] The report also suggests an overall increase in surveillance practices focusing on data from cellphones and social media sites, which are increasingly complying with government requests for users’ data.[21]

The report – and other recent reporting – suggests additional ways to police both gender identity and abortion. While some states are restricting free travel as a mechanism to enforce abortion bans,[22] law enforcement agencies have already used digital surveillance tools, including the extraction of data from text messages and internet search histories, to prosecute people under abortion bans.[23] Concerns over data privacy led to a mass deletion of period-tracking apps following the overturn of Roe v. Wade in 2022.[24] Notably, the case which overturned Roe, called Dobbs v. Jackson Women’s Health, was brought as a challenge to a Mississippi anti-abortion law first drafted by Alliance Defending Freedom in 2017.[25]

Similar concerns exist for period-tracking and mental health apps that could potentially be subpoenaed as evidence against LGBTQ+ and pregnant people in states which ban gender-affirming care, trans kids in sports or abortion.[26] The lack of attention and care to LGBTQ+ people shown by many large social media firms further compounds the unease they experience.[27] Some groups – including Gays Against Groomers and Youth Trans Critical Professionals, as well as fellows at the Manhattan Institute and SEGM – have championed restrictions on LGBTQ+ visibility on social media, which comports with their false claims about the spread of LGBTQ+ identity. Lawmakers have responded to the false claims with new proposals to restrict LGBTQ+ content online and age-restrict in-person LGBTQ+ social gatherings.

Legal Advocacy Groups Use Detransitioners and Doctors To Fight Civil Rights Laws

“This comes down with the malpractice cases, not just going after the doctors and the hospitals with the insurance companies that fund this, the pharmaceutical firms, the biotech firms, the philanthropy groups that make this possible ... the doctors and hospitals and companies that participate in this, they’re at risk. Watch how fast this comes down. And when the fad stops being gender transition, and starts being malpractice cases for the butchery that was done to kids. Things will change quick.”

— Andre Van Mol (ACPeds) on The Narrative podcast of CCV July 22, 2022.

“The lawsuits are coming.”

— Colin Wright, Twitter/X July 27, 2023.

One obvious way anti-LGBTQ+ movement actors are attempting to undermine the affirming care model and stifle its use is by targeting doctors with legal threats of malpractice. Several states including Missouri and North Dakota have enacted laws that allow for causes of action against doctors who provide gender-affirming care, for example.[28] LATT groups and their NM group allies have also created a cottage industry for promoting lawsuits against doctors and clinics that provide gender-affirming care. Another component of the legal strategy to attack gender-affirming care follows a page out of the playbook of religious right legal groups – that is, to claim both that nondiscrimination laws that require doctors provide care to transgender people and laws that ban conversion therapy violate doctors’ religious freedom to discriminate against LGBTQ+ patients.

In the first case, the legal strategy begins with the amplification of so-called whistleblowers whose unsubstantiated claims about clinical practices and patient or parent consent are bolstered by the desistence and social contagion myths. LATT and NM groups then recruit detransitioners to file suit claiming they were harmed by gender-affirming practices. Whether or not they are successful or their claims are ever substantiated, the lawsuits have a chilling effect on the provision of care and downstream effects on the cost of care that could ultimately make it even less accessible.[29]

International Partners for Ethical Care’s so-called Transition Justice Project, for example, actively recruits detransitioners and parents who claim their children were “harmed” by gender-affirming care, offering to connect them with “legal resources.” Similarly, building on its campaign to force incarcerated trans women into prisons for men, in 2022, the Women’s Liberation Front sponsored a lawsuit in Oregon, Kiefel v. Ruff, against affirming therapists. The lawsuit was filed by Genspect-allied law firm Jackson Bone LLC, which is led by Candice Jackson, a former Trump administration official who was endorsed by American anti-Muslim extremists and Lauren Bone, WoLF’s former legal director and co-author, along with members of the Independent Women’s Forum, of the so-called Women’s Bill of Rights.[30] Notably, WoLF received $50,000 in funding from the Alliance Defending Freedom in 2021 for its legal work related to “religious liberty.“

In the past three years, several U.S. firms have launched legal practice groups to challenge gender-affirming care. The Dallas-based law firm Campbell Miller Payne, for example, represented detransitioners Prisha Mosley in North Carolina and Soren Aldaco in Texas. The latter suit was brought against several Texas clinics with assistance from the Independent Women’s Forum. Similarly, the Detransition Network, started by the law firm Eckland & Blando in 2022, recruits both detransitioners and “experts” to testify on their behalf. Detransition Network’s Daniel Cragg has appeared virtually with Candice Jackson as part of the so-called Foundation Against Intolerance and Racism’s (FAIR) panel in 2023 that helped promote both challenges to gender-affirming care and civil rights laws protecting LGBTQ+ people.[31]

There are also familiar actors in the legal drama to sue doctors who provide gender-affirming care. Charles LiMandri’s California-based firm, LiMandri & Jonna LLP, is party to two suits brought in 2023, for example. In 2015, LiMandri defended the conversion therapy group Jews Offering New Alternatives for Healing (JONAH) in a suit brought by the �Ĳʿ�� on behalf of five individuals who underwent or paid fees for conversion therapy. One of LiMandri’s current clients is detransitioner Chloe Cole of the group Do No Harm, who has also traveled the country testifying against gender-affirming care in recent years.

In 2021, January Littlejohn, another board member of Do No Harm, filed a lawsuit against the Leon County, Florida, school board with the help of Child and Parental Rights Campaign because she claimed the school used “they/them” pronouns, “solicited” a student’s “bathroom preferences,” and supposedly hid a “plan” to socially transition the child without parental consent. Notably, about one-third of CPRC’s revenue came from the Alliance Defending Freedom in 2020 and 2021, while ADF contributed more than $400,000 to LiMandri’s Freedom of Conscience Defense Fund between 2017 and 2019. The ADF itself is representing Brian Tingley, a Washington therapist who claims the state’s ban on conversion therapy violates his religious freedom. The case may be heard by the U.S. Supreme Court in 2023 or 2024.

A Call to Action: Project 2025

In 2023, the Heritage Foundation announced Project 2025, its action plan for a potential Republican presidential administration that could take office after the 2024 general election. The plan, an expansive document that tops 900 pages, calls for a major reshaping of the federal government, especially the federal bureaucracy. The plan also calls for interested conservatives to register for vetting programs that will theoretically place them on a list of potential appointees to federal positions. For example, one sponsor of the plan, the Concerned Women for America organization, hosts a website that recruits for a “comprehensive, secure database to provide the next administration with an expansive list of vetted candidates ready to serve at the president’s pleasure,” asking for interested parties to submit their or even someone else’s contact information for vetting.[32]

Project 2025 represents a significant node in the anti-LGBTQ+ pseudoscience network, with 63 personnel connections across 11 groups including the ADF, the Independent Women’s Forum, the American College of Pediatricians, the Family Research Council, the American Principles Project, and FAIR.

Notably, from the first pages of the Project 2025 handbook, anti-LGBTQ+ pseudoscience and demonization of LGBTQ+ people is a key feature. On page 1 of the document, Kevin Roberts of the Heritage Foundation claims that “children suffer the toxic normalization of transgenderism with drag queens and pornography invading their school libraries.” By page 5, Roberts claims, “pornography” is “manifested today in the omnipresent propagation of transgender ideology and sexualization of children” and argues that such manifestations be “outlawed.” Roberts also argues that “the people who produce and distribute [such materials] should be imprisoned. Educators and public librarians who purvey it should be classed as registered sex offenders. And telecommunications and technology firms that facilitate its spread should be shuttered.”

In addition in a chapter on reshaping the Department of Health and Human Services, Roger Severino, former director of the department’s Office for Civil Rights during the Trump administration who claimed “[s]ame-sex marriage was merely the start” of the so-called “LGBT agenda,”[33] calls for the Centers for Medicare & Medicaid Services to “acknowledge the growing body of evidence” that gender-affirming care is “dangerous” and that there is “insufficient scientific evidence to support” coverage under Medicaid. Severino also claims, without citing any evidence, that “social science reports ... all other family forms” in comparison to a “heterosexual intact marriage” experience greater financial, mental and physical health, and educational hardships and “instability.” Severino also claims without evidence that “the average length of same-sex marriages is half that of heterosexual marriages.”

As author Guthrie Graves-Fitzsimmons has noted, “in his chapter on the U.S. Department of Labor, Jonathan Berry frames his proposals as part of divine history.” Graves-Fitzsimmons quotes Berry’s chapter, saying, “The Judeo-Christian tradition, stretching back to Genesis, has always recognized fruitful work as integral to human dignity, as service to God, neighbor, and family,” he [Berry also] writes, while claiming the Biden administration “has been hostile to people of faith.”[34]

In addition, Berry calls for a future presidential administration to “[r]escind regulations prohibiting discrimination on the basis of sexual orientation, gender identity, transgender status, and sex characteristics” and urges the next president to direct federal agencies to “focus their enforcement of sex discrimination laws on the biological binary meaning of ‘sex.’” The impact would mean disregarding the Supreme Court’s decision in the case of R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, in which the court ruled discrimination against LGBTQ+ people is the equivalent of sex discrimination under Title VII of the Civil Rights Act of 1964.[35]

In addition to repealing protections for LGBTQ+ people, privileging conservative Christians who want to discriminate against them, the authors of Project 2025 call for the prosecution, imprisonment and punishment of LGBTQ+ people and their allies under a dangerous and draconian definition of “pornography” that mimics the limitations on LGBTQ+ expression currently being tested in the state and federal courts.

In all, the anti-LGBTQ+ pseudoscientific agenda will be enforced through state-sponsored violence and invasive tactics like genital inspections and period-tracking, the criminalization of LGBTQ+ expression and health care, and even imprisonment. It will also be enforced through private causes of action that threaten individual doctors and impose chilling effects on the provision of gender-affirming care, even in states that refuse to criminalize the life-saving practices.

Navigating the Perils: A Public Health Approach to Countering Anti-LGBTQ+ Psuedosicence

Reflecting on the events and themes detailed in this report, there are multiple recommendations and interventions that could be offered to help counter the effects of anti-LGBTQ+ pseudoscience. Recommendations and interventions directed at ensuring health and safety of LGBTQ+ people are imperative, as are recommendations and interventions directed at interrupting the effects of disinformation. The public health approach offers a framework for understanding how to respond to the anti-LGBTQ+ pseudoscience network.

There are generally three main approaches to prevention and intervention work: primary, secondary and tertiary. All three focus on delivering resources and support to prevent and stem the spread of misinformation and supremacist ideologies but at differing levels of society and different stages of exposure and susceptibility to extremist content. While we focus, here, on recommendations and interventions focused largely on prevention and building resilience at the community level (primary level), a public health approach to counter disinformation disguised as science will require a multilevel response focused on improving both access to information and healthcare as well as information literacy.

To begin, we must end the attacks on LGBTQ+-affirming health care and the demonization of transgender people, their support systems, allies, and care providers. We must also ensure access to care that does not consider LGBTQ+ people to be mentally ill or abnormal as a first course of action. Primary-level strategies to counter harmful anti-LGBTQ+ pseudoscience include:

Ensure equitable access to affirming, lifesaving medical care.

Health care is a human right. Yet we live in a society with a devastatingly unfair health care and health care education systems that often produce disparities in access and reinforce prejudices like racism, cis- and heterosexism and classism.[36] In addition to perpetuating poor health outcomes among marginalized populations, health care inequities offer a unique opportunity for the perpetuation of medical pseudoscience.

The complexity of medical information and general inability to access it means people will turn to more accessible, but potentially far less reliable sources of information – like politicians and hate groups – for the “truth” about their own bodies and medical conditions, rather than medical professionals. The first time a person learns about puberty or gender transition, for example, should not be through a media source with a biased political agenda. Creating equitable access to medical care grounded in sound scientific practices will close off many access points for disinformation to take hold.

Strengthening inclusive education practices, including equitable and anti-racist medical education.

As this report shows, learning strategies and pedagogies like social emotional learning and anti-racist education techniques are already under attack by many of the purveyors of anti-LGBTQ+ pseudoscience. Yet they represent significant opportunities to prevent radicalization and the spread of disinformation.

Programs designed to teach accurate world and American histories about enslavement,[37] for example, and having meaningful conversations about systemic power imbalances like racism, sexism and heteronormativity also represent opportunities to promote pluralism and civic engagement and create safe and effective public learning environments that are bedrock institutions of American society.[38]

Part of this strategy must include strengthening inclusive sex education programs. One of the primary narrative manipulation strategies of the anti-LGBTQ+ pseudoscience network is to push restrictions on inclusive education practices by claiming LGBTQ+ people are “grooming” children. At the same time, the most vociferous resistance to inclusive and comprehensive sex education classes has come from many of the “family policy” and “religious freedom” advocacy groups represented in the anti-LGBTQ+ pseudoscience network who have promoted “opt-out” policies and restrictive “abstinence-only” sex education curricula for decades. Research shows, however, that inclusive and comprehensive sex education is one of the most effective weapons against sexual abuse.[39]

Promote digital and information literacy.

Access to information is increasingly common in the digital age; however, as this report shows, there are networks of groups designed to both produce disinformation and manipulate popular narratives so that discernment becomes increasingly difficult.[40] Since the politicization of COVID-19, even information from health care providers is viewed skeptically by many, with a large proportion of the U.S. population content to believe politicians or hate groups who confirm suspicions of out-groups and prey on prejudice to gain political power.

We must promote digital literacy and discernment to prevent disinformation and fake news from taking hold but also to prevent the development of ideological echo chambers, radicalization and uncivil online behavior. In an age when digital footprints are being used to police sex and gender, through state and non-state means, promoting digital literacy will also help develop personal security skills to combat online threats.[41]

Even among seasoned academics and media professionals, pseudoscientific information can be disguised, as when research is manufactured by anti-LGBTQ+ groups to fulfill a particular legal or policy need, or when anti-LGBTQ+ groups pay to publish their conclusions in scientific journals, or when seemingly dispassionate sources of information – like academic journals – are created or captured by groups that espouse an anti-LGBTQ+ ideology.

Research does not happen in a vacuum. As this report demonstrates, narrative manipulation groups and ideologically motivated researchers can twist even methodologically rigorous studies to support false and pseudoscientific conclusions. To help prevent the spread of pseudoscience, outlets for scientific studies should evaluate current conflict of interest and disclosure standards so that consumers of the information they publish are better informed about who is funding the work and the connections authors have to groups known to advocate against the rights of others. In addition, because letters to the editor are so frequently used to advance pseudoscientific claims within the network, scientific journals should also consider more rigorous standards for letters to the editor, guidelines which implement similar robust conflict of interest and disclosure policies. In a similar vein, American newsrooms should be aware of the narrative manipulation strategies and the cooptation of scientific credentials and language by anti-trans researchers when sourcing stories about trans experiences.