Trans Animus

Anti-transgender legislation is sweeping the nation with devastating consequences for trans lives. Each piece of legislation is generally challenged in isolation and conceptualized under the Equal Protection Clause as involving either impermissible sex classifications or classifications against transgender people. These frames are accurate but insufficient to fully capture the scope and harm of the laws on trans lives. These all-encompassing laws must be unequivocally identified for what they are: a product of animus violating the Equal Protection Clause. Through its detailed analysis of these laws and their legislative history, this Article demonstrates that animus is evident from the laws’ overbreadth, underinclusiveness, fabricated or pretextual government interests, and direct legislative statements of animus. As this Article contends as its central thesis, framing anti-trans legislation as rooted in animus toward transgender people may help lead to greater—and more efficient—litigation success and will also avoid the pitfalls of Equal Protection suspect classification doctrine that essentializes and forces identities into rigid, exclusionary boxes. Drawing from principles of restorative, transformative, and transitional justice, the animus framing also has the potential, perhaps counterintuitively, to lead to greater social healing of the fissures being created by the culture war aimed at transgender people.