Center for American Progress

The Far-Right Campaign To Regulate Gender Harms All Americans
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The Far-Right Campaign To Regulate Gender Harms All Americans

Project 2025 continues the alarming trend of enforcing strict definitions of gender that would not only harm transgender Americans but all Americans as well.

Part of a Series
A person waves a transgender pride flag
Members of the transgender community and their supporters hold a rally in Los Angeles in 2018. (Getty/Mark Ralston/AFP)

This article is part of a series from the Center for American Progress exposing how the sweeping Project 2025 policy agenda would harm all Americans. This new authoritarian playbook, published by The Heritage Foundation, would destroy the 250-year-old system of checks and balances upon which U.S. democracy has relied and give far-right politicians, judges, and corporations more control over Americans’ lives.

Project 2025, the authoritarian policy agenda published by The Heritage Foundation, is nearly 1,000 pages long. Yet it only takes the authors four pages to recommend that transgender people should be wholly deleted from federal code. Further, they argue that “transgender ideology” should be criminalized. In order to ban certain gender identities, however, the far right first must define them—something it has been trying and failing to do in state legislatures for years. These gender definition policies are part of a larger campaign already raging in state legislatures, and their harm reaches far beyond the transgender community.

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Unfortunately, these policies are so vague that they are unpredictably applied at the whim of a plethora of regulatory bodies—and that’s part of the point. They are meant to take power away from citizens and give it to political officials subject to inconsistent levels of oversight.

This column breaks down these confusing and often-contradictory policies, how they impact the transgender community, and the critical threat they pose to all Americans.

Defining gender

In 2020, the U.S. Supreme Court released its landmark decision in Bostock v. Clayton County, ruling that Title VII of the 1964 Civil Rights Act, which bans employment discrimination based on sex, also bans discrimination based on sexual orientation and gender identity. The ruling centered on the idea that discrimination based on sexual orientation or gender identity inherently requires discrimination based on sex.

Predictably, the far right was incensed by this win for equality and began looking for ways to undo these protections. In 2022, anti-LGBTQI+ politicians began introducing bills for consideration in state legislatures that narrowly defined sex in an attempt to exclude transgender people from the definition—and, by extension, from state law. This was, ostensibly, an attempt to sidestep the extended sex discrimination protections provided by the Bostock ruling and allow continued discrimination against transgender people. Since the release of the Bostock decision, dozens of gender regulation bills have been considered in state legislatures across the country. Ten states have passed a law or executive order regulating gender.

In Project 2025, the theme of narrowly defining gender is brought up multiple times. Notably, the “Family Values” section argues that the federal government should recognize the “biological realities” of men and women. Yet as much as Project 2025 and its far-right policies claim that perception of gender is obvious, these policies have yet to come to a consensus on a singular legal definition of gender.

Gender regulation policies generally contain two critical parts: a proposed, transgender-exclusionary definition of gender and direction for where the definition should be applied in law. Far-right politicians often claim that defining gender is easy. In 2022, Sen. Marsha Blackburn (R-TN) asked now-Supreme Court Justice Ketanji Brown Jackson to define the word “woman” during her confirmation hearing; Justice Brown Jackson politely sidestepped the question. This interaction went viral, with extreme conservative influencers and pundits claiming that the answer was obvious.

Yet even ultra-conservative gender regulation bills with a central purpose of defining gender provide a multitude of definitions. Despite the use of words that may convey scientific reliability, such as “ova” and “biological,” these definitions are often contradictory and deeply unscientific. Some policies rely on fertility as a defining feature of gender, leaving cisgender women who struggle with fertility completely out of the law. Other definitions rely wholly on gender markers on birth certificates, creating a situation where the description of gender on a birth certificate is more important than the actual gender of the person for whom the document was created.

Some definitions in gender regulation bills

  • 2023 Texas H.B. 3902: “‘Female’ and ‘woman’ mean an individual whose biological reproductive system is developed to produce ova.”
  • 2023 Iowa H.F. 290: “The term ‘gender,’ or the term ‘sex’ when used in reference to gender, means the biological sex designation of male or female on a person’s birth certificate.”
  • 2023 Iowa H.F. 325: “‘Gender identity’ means a gender-related identity of a person … who has attained the age of majority.”
  • 2023 Oklahoma S.B. 251: “The only permissible applications of the terms or definitions of “gender” or “sex” shall be male (XY), female (XX), and intersex for those born with a mutation causing such abnormality.”

The harm of gender regulation policies

Gender regulation policies are often incredibly vague. Many simply state that the definition of gender provided in them must apply to all state code. The vague nature of these policies means they are inconsistently applied and gives outsize power to regulatory bodies and agencies; without a clear standard, it’s up to individual agencies and enforcers to assess where and how gender should be regulated. In Kansas, a passed gender regulation bill led to a ban on transgender people changing the gender marker on their driver’s licenses—even though the bill itself made no mention of licenses specifically. In Indiana, a proposed gender regulation bill would include new regulations on student housing.

The possible impacts of gender regulation policies don’t stop there. These policies could be used to require transgender people to use bathrooms that don’t align with their gender identity, exclude them from shelters, and more. Excluding transgender people from public services such as shelters and bathrooms leaves them vulnerable to exploitation, homelessness, and further harms. Because LGBTQI+ people, particularly young LGBTQI+ people, are already some of the individuals most vulnerable to homelessness and trafficking, their exclusion from these services is life threatening.

Gender regulation impacts all Americans

When the definition of gender is based not on how people identify but on factors such as reproductive systems and birth certificates, increased surveillance of everyone’s gender becomes an inevitability. This surveillance doesn’t just affect transgender people but cisgender people as well—particularly cisgender women. Surveillance tactics are a concerning trend among many far-right policies; for example, Project 2025 calls for measures such as data collection on abortions and mass surveillance of Americans.

Invasive surveillance of gender is already happening in some states. In places with bans on transgender students in sports, student athletes may be required to prove their “biological sex” by undergoing invasive genital and genetic exams. Cisgender women athletes have been accused of being transgender, which leads not only to online harassment but also to public targeting and exclusion. In Utah, a cisgender girl was bullied online after a school board member falsely suggested that she was transgender. There are documented instances of cisgender women being harassed when using the restroom because they have features not considered feminine by the accuser, such as short hair. During the 2024 summer Olympics, many social media users and pundits claimed that American rugby players were secretly men because of their athletic ability.

When it comes to enforcement of these policies, it’s clear that it’s not just sex assigned at birth that matters. Everything from being too good at sports to not appearing feminine enough could put women—transgender or cisgender—at risk for harassment, exclusion, and even violence.

This impact on cisgender women isn’t a flaw in gender regulation policies, it’s part of their design. Through gender regulation bills and extreme plans such as Project 2025, the far right isn’t only excluding transgender people. These policies are enforcing a larger, extreme conservative ideal of gender on all women, whether transgender or cisgender. Attempting to force women to adhere to such an idea of gender is not new but is instead part of a long history of promoting strict gender roles, purportedly in service of “protecting” the traditional family unit—a value shown to be based in ultra-conservative patriarchal and Christian nationalist ideals.

Gender is far from simple, as the far right would like everyone to believe. Regulating it doesn’t just hurt transgender communities—it hurts everyone.

The positions of American Progress, and our policy experts, are independent, and the findings and conclusions presented are those of American Progress alone. A full list of supporters is available here. American Progress would like to acknowledge the many generous supporters who make our work possible.

Author

Cait Smith

Director, LGBTQI+ Policy

Team

LGBTQI+ Policy

The LGBTQI+ Policy team provides timely, strategic resources on policy issues affecting LGBTQI+ communities.

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The far right’s new authoritarian playbook could usher in a sweeping array of dangerous policies.

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