This month, Alabama lawmakers passed two bills that prevent trans youth from medically transitioning and from using bathrooms or locker rooms that align with their gender identity. More than 200 similar bills have been introduced in state legislatures in the first three months of 2022 alone; almost half of them specifically target trans people. Supporters of these bills ground their arguments in “biological facts” and claim that they protect vulnerable members of society — especially women and children.
In the past, LGBTQ activists have successfully challenged such efforts, by lobbying legislators and governors to quash bills before they make it into law, and then, when laws pass, by filing lawsuits. This has proved to be a winning strategy. LGBTQ legal organizing has successfully convinced legislatures and courts to rule favorably on issues such as same-sex marriage, open participation in the military and employment nondiscrimination, among many others.
But as judiciaries grow increasingly conservative, this strategy may prove less effective. In fact, fighting anti-LGBTQ injustices solely within the legal system has not always been enough to kill discriminatory legislation or, critically, to turn the tide of public opinion. The LGBTQ community learned this as it tried to use new laws designed to protect disabled Americans in the 1970s and 1980s to fight discrimination.
Crucially, these laws were the culmination of visible public activism that helped change popular ideas that bodies look and function in “fixed” ways, forcing legislators and judges into action.
Throughout the 1950s, it was legal and common practice to segregate disabled people from abled society. This created a cycle: disabled people were prevented from physically accessing public spaces and their absence from these places helped push a narrative that disabled people were “biologically” inferior, automatically dependent and unable to provide or care for themselves.
But by the 1960s, disability rights activists in San Francisco, Denver, Washington, Boston and other places banded together and demanded change. They argued that their limited participation in society resulted not from biological inferiority but rather from deliberate segregation — in the forms of institutionalization, prejudice, inaccessible architecture and infrastructure, discriminatory government policies and unfair employment practices.
Taking cues and inspiration from the civil rights movement, groups like the Rolling Quads and the Student Organization for Every Disability United for Progress (SOFEDUP) staged sit-ins in government offices and city buses, conducted clandestine curb-busting campaigns and participated in other acts of civil disobedience while simultaneously lobbying for changes in federal, state and municipal policies.
This direct action turned the tide of public opinion, dispelled the myth that people with disabilities were incapable of being active participants in society and pressured legislators to act. At the federal level, Congress passed the Rehabilitation Act of 1973 which initiated sweeping, visible changes for disabled people across the United States. Section 502 of the Act required federally funded museums, college campuses and other organizations to construct accessible ramps, parking spaces and toilets. Similarly, Section 504 required employers to provide “otherwise qualified” disabled workers with “reasonable accommodations” that would help them perform their jobs effectively. Both of these provisions helped increase the number of visibly disabled people in workplaces, higher education and commercial spaces across the country.
Many trans workers hoped that they too could benefit from the protections conferred by the Rehabilitation Act. Although there was considerable debate about whether trans people could or should claim a disabled status, there was little question that trans identification and care were closely intertwined with medicine. There was also little doubt that many trans workers were fired from their jobs because of the ways their medical transition had affected their dress or physical appearance.
Between 1980 and 1990, at least five trans women used legislation that protected the disabled to resist the employment discrimination they faced. While these women were able to make a stand within the legal system (occasionally with support from national civil rights groups, such as the ACLU), their cases were not accompanied by organized mass protests, acts of civil disobedience or other orchestrated activist efforts. No national trans organization yet existed to help sway the public, and without widespread public support applying pressure on the justice system, legal bids to secure trans rights were often unsuccessful: only two out of the five women found success in court.
In fact, Congress used the single federal-level victory — in which a trans woman known as Jane Doe, won a $12,500 settlement against the U.S. Postal Service for wrongful termination in 1985 — to justify adding amendments to the Americans With Disabilities Act (ADA) to ensure that trans people could not use the pathbreaking legislation to challenge unfair employment practices.
In debates over the ADA — which was introduced in 1988, in the early years of HIV/AIDS — conservative legislators sought to exclude people they believed had “disreputable or immoral” disorders from benefiting from the Act. This included LGBTQ people, people with mental illnesses and people with HIV or AIDS. Rep. Dan Burton (R-Ind.) characterized the ADA as the “last ditch attempt of the remorseless sodomy lobby” to destroy “normal America.” Sen. William J. Armstrong (R-Colo.) proposed amending the bill to exclude psychotics, drug addicts, people with gender identity disorders and all LGBTQ people, “whether or not they had AIDS.”
Despite these objections, the final version of the ADA ultimately protected people with HIV or AIDS. But it explicitly excluded trans people and others diagnosed with “gender identity disorders.”
What made the difference?
While trans people did not have a national lobbying force to protest exclusion, AIDS activists did. Formed in 1987, the AIDS Coalition to Unleash Power, better known as ACT UP, was among the many organizations that coordinated protests specifically targeting politicians, government agencies and religious institutions whose silence or misinformation perpetuated the AIDS crisis. Among these were orchestrated “die-ins,” in which protesters carried signs reading “SILENCE=DEATH” as they laid across city streets or in government buildings as if dead. These visceral public protests brought many people living with HIV out of the shadows and shined a light on discrimination and injustice.
This direct action also prodded and publicly shamed politicians into changing course. Perhaps most notably, ACT UP protests pressured President Ronald Reagan who, after years of public silence, finally formed a Commission on AIDS in 1987. A year later, this Commission called upon Congress to pass federal anti-discrimination legislation to specifically protect people infected with HIV from being fired, evicted or denied access to public spaces because of their diagnosis.
This activism placed Congress under sufficient political pressure that, when it passed the ADA in 1990, it overrode conservative objections and ensured that the pathbreaking law protected people with HIV and AIDS from discrimination.
Trans people fared very differently. Without a national lobbying force directing mass public pressure to remove anti-trans amendments, trans people seeking protections based on their gender identity were firmly excluded from the ADA, in part because they were largely invisible to most Americans.
Today, trans people in the United States are far more visible and better organized than they were in the 1970s and 1980s, and the work of an organized and visible trans movement has already yielded some success. When North Carolina tried to pass an anti-trans bathroom bill in 2016, activists pressured businesses, other state governments, sports coalitions and the public to oppose the legislation. These efforts put enough pressure on lawmakers to effectively kill the bill before it could pass.
Such activism is not always successful, because of a growing lobby of anti-trans activists, “concerned parents” and other conservative forces who frame anti-trans bills as protecting the rights of women and children. Case in point: Earlier this year, high school students in Florida staged walkouts to protest the Parental Rights in Education bill. While this brought national attention to the legislation, which detractors deemed the “Don’t Say Gay” bill, it did not prevent Gov. Ron DeSantis (R) from signing it into law. DeSantis’s move reflected the political might of anti-trans forces.
To counter them, LGBTQ activists need to sustain visible public pressure, while also working through the legal system. As the disability rights movement proved, this duel track strategy gives them the best shot of beating back the wave of bigoted legislation.
