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Publication Date

11-2019

Abstract

In the wake of marriage equality, opponents of LGBT rights refocused their attention, making transgender rights their main target. To persuade voters to maintain gender identity antidiscrimination protections, LGBT rights campaigns presented trans identity in a specific, but limited, way. These campaigns emphasized gender-conforming transgender individuals—those who adhere to male and female stereotypes—and thereby implicitly reinforced the gender binary. Although LGBT advocates have largely succeeded in their efforts to preserve LGBT rights, their messaging may undermine the movement’s broader litigation strategy and subject nonbinary members of the transgender community to greater discrimination and persecution.

The trans rights framing choices thus raise questions about how the LGBT movement’s advocacy decisions blur the lines between success and failure, advancement and retrenchment. To explain this tension, this Article details the history of marriage equality campaign strategies, drawing on primary source campaign materials to identify how and why LGBT rights groups applied those frames to trans rights, as well as the consequences of those framing choices. This Article then analyzes the motivations behind social movements’ framing decisions more broadly to argue for an alternative approach to trans rights advocacy.

Framing trans rights is a significant issue that extends far beyond whether a specific city or state maintains or eliminates its gender identity protections. Although framing in an electoral campaign may seem far removed from the work of courts, legislatures, and administrative agencies, this Article demonstrates how porous the boundaries are, such that the frames of the former have a substantial impact on the latter. Drawing on the scholarly literature on acoustic separation, popular constitutionalism, and slippery slopes, this Article explains why LGBT state and local ballot measure contests cannot be separated from the movement’s broader strategies. It therefore demonstrates that electoral frames are integral to legal advocacy writ large.

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