Document Type

Article

Publication Date

10-2026

Abstract

Over the past decade, lawmakers have proposed an extraordinary number of restrictions on transgender people across nearly every area of public and private life — bathrooms, health care, athletics, education, identity documents, military service, prisons, and more. This Article argues that these measures are best understood as legal scapegoating, meaning the use of law to galvanize public discomfort and hostility toward a targeted group. While demagogic rhetoric can also galvanize those reactions, the concrete restrictions of a legal scapegoating effort raise two further risks, one for democratic governance and the other for judicial review. First, legal scapegoating normalizes government’s use of law to cordon off the targeted group from participating in civic life. Second, courts reviewing an individual measure miss the law’s scapegoating function if they consider it in isolation from the cluster of measures targeting the same group.

Although the intense targeting of transgender people is relatively recent, it is continuous with a half century of law-driven campaigns against lesbians and gay men. Those campaigns gained traction by provoking genuine distress about broad societal concerns, such as sexual abuse or social instability, and presenting restrictions on gay people as a purported fix. Contemporary anti-transgender measures follow the same playbook. Proponents home in on sensitive issues — public education, identity fraud, national security, and healthcare access, among others — to prompt the public’s anger and fear and then redirect that distress to legitimize the exclusion of transgender people, notwithstanding the disconnect between the restrictions and documented problems. This project has been startlingly successful: From the volume and breadth of anti-transgender restrictions proposed in recent years, an outsider might infer that transgender people are among the greatest threats to Americans today.

If courts review these kinds of measures in isolation from other similarly targeted restrictions — that is, if judicial blinders obscure the hostility-galvanizing effort of which the challenged measure is a part — they risk missing that impermissible purpose. Recognizing the phenomenon of legal scapegoating brings this risk into focus and highlights a broader challenge for democratic governance: constraining the use of law to foment hostility toward vulnerable groups.

Disciplines

Civil Rights and Discrimination | Constitutional Law | Law | Law and Gender | Sexuality and the Law

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