From Legalizing Same-Sex Marriage to Executive Bans on ‘Gender Ideology’: Progress and Setbacks in LGBTQIA+ Laws in the Past Decade

A briefing paper prepared by Gina May and Barbara J. Risman for the Council on Contemporary Families symposium Policies Affecting Families: What We Know, and What to Expect in the Second Trump Term

The future of America was at stake in the 2024 Presidential election, including the future of LGBTQIA+ rights. Since the 2015 Obergefell vs. Hodges decision to legalize same-sex marriage, the country seems to have become ever more divided by law and policy on civil rights for sexual and gender minorities. The red states started outlawing gender affirmative care and providing few civil rights protections for the LGBTQIA+ community. By contrast, blue states  forged ahead in providing medical access and protections against discrimination. It may be that the division itself is a direct reaction to the decision to legalize same-sex marriage, and with that decision, to fully de-stigmatize homosexuality. Some states agreed with moving forward toward full equal rights for LGBTQIA+ people, and some states are pushed back against such a possibility. In a recent presentation at the Council on Contemporary Families Workshop at the University of Maryland-Baltimore County, we discussed how laws have changed in the last decade, contrasting red and blue states. Now that Trump has followed through on his promises to pull the federal government toward red-state policies, our analysis provides a window into where the entire country might be headed.

The Obergefell v Hodges case seems to have been a watershed in US politics. Within months of that decision, legal protections for the LGBTQIA+ community began to change in opposite directions in red and blue states. The first and perhaps most dramatic pushback to that decision was the infamous 2016 enactment of North Carolina’s House Bill 2 (HB2), known as the “Bathroom Bill.” HB2 required individuals in government buildings to use restrooms corresponding to the sex listed on their birth certificate. It is important now, nearly a decade later, to remember the national outrage at an anti-trans law passing in North Carolina. At an expense of $100 million, the NBA moved its 2017 all-star game from Charlotte to New Orleans, Louisiana. The Atlantic Coast Conference also moved its championship game out of the state. Corporations such as Deutsche Bank and PayPal canceled expansions in the state. In addition, a diverse cast of artists supported the boycott of Noth Carlina, with various headliners ranging from Ani DiFranco, Ringo Starr, Itzhak Perlman, and Bruce Springsteen all canceling appearances.

Yet, this outrage did not stop the spread of such laws. Soon, other states passed laws that barred trans youth from using school bathrooms that align with their gender identity, reigniting debates over privacy, safety, and the rights of transgender individuals. In addition to bathroom bans, there has been a surge in laws restricting the use of preferred pronouns in schools. These pronoun bans prevent school staff from using students’ chosen identifiers without parental consent, with some proposals even imposing penalties on violators. These laws create hostile environments between students and staff, adversely affecting the mental health of transgender and non-binary students.

As of 2024, fourteen states have made it hard for transgender youth to void their bodily wastes by denying them access to bathrooms consistent with their presentation and identity. Twenty-seven states have enacted bans on trans youth participating in school sports, with twenty-two of them explicitly targeting trans girls and barring them from competing on girls’ teams. These bans are often justified as protecting fairness in competition. However, there is continuing controversy about whether this creates a more level playing field for biological females or discriminates against transgender women. Despite endorsements from major medical organizations such as the American Academy of Pediatrics and the American Medical Association, which view gender-affirming care as essential for the health and well-being of transgender youth, there has been a trend of laws restricting access to this care for minors. States like Texas, Alabama, and Florida have enacted bans on medical treatments, including puberty blockers, hormone therapy, and gender-affirming surgeries, claiming these procedures are irreversible and that minors are too immature to make such life-altering decisions. However, research shows that denying access to social transition and other treatments poses long-term threats to the mental and physical health of transgender individuals, as gender-affirming care is associated with reduced rates of depression, anxiety, and suicide among youth. Figure 1 below illustrates how many states had a variety of laws that restrict the rights of the LGBTQIA+ community (from 12 that restrict free use of pronouns to 27 that ban trans youth from participating in sports) by the end of 2024. All data accessed and compiled for Figure 1 came from https://www.lgbtmap.org/.

But this is not, of course, the full story. The 2020 Supreme Court ruling in Bostock v. Clayton County established that Title VII of the Civil Rights Act prohibits employment discrimination based on sexual orientation and gender identity. In blue states, we have seen enforcement of existing laws pertaining to anti-discrimination protections and new ones allowing alternative gender markers on identification, such as an X instead of male or female. In half the states, there are laws to prohibit discrimination in housing based on sexual orientation and gender identity.  There are twenty-four states with laws that explicitly prohibit employment discrimination based on sexual orientation and gender identity and also that prohibit discrimination in public accommodations.  In twenty-two states, by 2024 there were laws that prohibit discrimination in education as well. In these states, the right to marry for same-sex people was the beginning of a major wave of a tide that was rolling in more human rights protections for LGBTQIA+ folks.  

In a remarkable example of the tug-of-war between progress and setbacks for LGBTQIA+ rights,  by the end of 2024, more than twenty states, including California, Oregon, and New York, offered the X gender marker on driver’s licenses and other identification documents. This option allowed gender-diverse individuals to p[t for more accurate reflections of their identity. However,  these individuals still faced challenges when interacting with institutions and traveling between states. Figure 2 below indicates the frequencies of these LGBTQIA+ civil rights protections in place in blue states by the end of 2024.  All data accessed and compiled for Figure 2 are from https://www.lgbtmap.org/.

When we compare Figures 1 and 2, we can see just how divided red and blue states were over these policies. The most common policies enacted negatively affecting transgender people are the bans on trans youth in sports and the bans on gender-affirming health care for youth.  Approximately half of all American states (N=27 and 25) have passed such laws.  And yet, approximately half the states have employment and housing anti-discrimination laws (N=24 and 25) as well as laws requiring public accommodations not to discriminate by sexual orientation or gender identity (N=21). The United States is a country much divided on what social policies are appropriate for our LGBTQIA+ citizens. Until now, states have played a crucial role in shaping legal protections- or restrictions of LGBTQIA+ rights, reflecting the deep divide in the U.S. over issues of gender identity and sexual orientation. By the end of 2024, the patchwork of nature laws meant that LGBTQIA+ individuals faced drastically different realities depending on the state in which they live. Blue state governors, such as Illinois’ J.D. Pritzker, proclaimed that they will be a refuge for LGBTQIA+ people seeking access to equal protection under the law and gender-affirming medical care.   At the same time Florida Governor Ron DeSantis  called for physicians who provide gender-affirming health care to minors in his state to be sued, and banned the use of Medicaid to provide such services.  

The pendulum has swung radically since the election of Donald Trump.  On the very first day of his presidency, Trump signed an Executive Order titled, “Defending Women from Gender Ideology and Extremism and Restoring Biological Truth to the Federal Government,” which define sex category by the size of our reproductive cells, and declared that the federal government would enforce that definition for all government identification, personnel records and federal forms. In addition, no federal funds can be used to for any purpose that challenges this definition of sex, and declares gender identity does not exist.  The Order also bars transgender women from single sex spaces.  And that was just the first Executive Order about sex and gender.   There was then one barring transgender men and women from serving in the armed services.  A third banned gender affirming medical care for minors.  And yet another one barring transgender athletes from women’s sports.  The federal government has thrown its weight behind the red states positions against civil rights for LGBTQ Americans.

The open question now is one of state’s rights.  Can the federal government force the blue states to follow the Executive Orders?  Can the courts intervene when those orders go beyond constitutional roles for the Executive branch of government?     The evidence presented above shows we have an America deeply divided on LGBTQ issues.  Can a federal government, elected with under a 2% majority of the popular vote, impose it’s policies on blue states?  Only time will tell.

About the Authors

Gina May is a senior majoring in psychology at University of Illinois at Chicago. She’s a research assistant  on two different projects studying cannabis, tobacco and pregnancy.  She is also a research assistant on a study of people who reject gender binaries. She will be co-author on publications from all these studies. She expects to pursue a  Ph.D. in Gender and Sexualities. She can be reached at gmay@uic.edu 

Barbara Risman is Distinguished Professor of Sociology at the University of Illinois at Chicago and a Fellow at the Hanse-Wissenschaftskolleg Institute for Advanced Study in Germany.    She is on the Board of Directors of the Council on Contemporary Families and the National Chapter Advisory Board of the Scholars Strategy Network.  She can be reached at brisman@uic.edu, Follow her on FB at Barbara Risman and  at BlueSky at @drbjrisman.bsky.social