American Federalism: A Blessing and a Curse for Transgender Rights

Jami Taylor, Andrew Flores, Donald Haider-Markel, Daniel Lewis and Patrick Miller

Publius: The Journal of Federalism, 2024, vol. 54, issue 3, 511-533

Abstract: The development of transgender rights in the United States has been hobbled by a patchwork of inconsistent state laws. The irregularity is a function of the political opportunity structure in the United States, which is defined by a sharp partisan divide and by the federal system’s division of power. National policymaking on transgender rights has stalled in Congress. Executive branch policymaking is often subject to challenge in the federal courts, and different administrations have varied in their approaches. In addition, the Supreme Court’s decision in Bostock narrowly advanced transgender rights in employment law but also invited challenges in other areas. With inaction and inconsistency at the national level, states are using their reserved powers in the federal system to diverge along the partisan divide. Republican-controlled states are enacting repressive measures, while Democratic-controlled states have done the opposite. For transgender people, their rights are increasingly dependent on which state they are in.

Date: 2024
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