By the time students go back to school this fall in North Dakota, two new bills will be in effect restricting some transgender athletes from playing on school sports teams. Gov. Doug Burgum signed these bills into law last month — yet just two years ago, when a similar ban passed the North Dakota Legislative Assembly, Burgum vetoed the bill. He noted at the time that the state had no record of any trans girls competing in girls’ sports and that the state had “a level playing field and fairness in girls’ sports.”
This is still true — he made the same comments when signing the bills last month — so what changed? The state legislature had finally built the momentum and support needed to send these bills to Burgum’s desk with a veto-proof majority, the result of a multiyear effort by state Republicans to get these bills signed into law.
It’s a familiar trend for those who track legislation that restricts LGBTQ+ rights. Over the last five years, the number of anti-LGBTQ+ bills both introduced and passed into law at the state level has exploded, according to a FiveThirtyEight analysis of data provided by the American Civil Liberties Union and The Trevor Project, a suicide prevention organization for LGBTQ+ youth. Unsurprisingly, these bills are almost exclusively introduced and supported by Republican lawmakers, and the data reveals they aren’t coming up with new restrictions at random. Instead, these bills tend to follow cyclical patterns, with certain types of restrictions (such as school sports bans for trans athletes, prohibitions on gender-affirming care for minors and bathroom bills) gradually increasing in popularity for a year or two, then peaking with a huge wave of legislation in multiple states. Once laws have been passed, lawmakers move on and a new trend emerges.1 According to Cait Smith, the manager of state legislative strategy and rapid response for The Trevor Project, these cycles often include a few years of trial and error, in which bills are proposed and die before eventually passing after momentum and support has built — like in North Dakota.
“It’s a pretty common trajectory — they’ll see what sticks in committees, they’ll see what sticks on messaging, and what is motivating, and what works legally,” Smith said.
And while the vast majority of these bills (like most bills) don’t become laws, as the total number of bills has risen, the small percentage that are signed into law amounts to a growing number, too. Heading into 2024, it’s become clear many Republicans view anti-LGBTQ+ policies as a winning position, and state lawmakers have spent the past few years letting those views guide their legislative agenda, leading to a surge in restrictions on LGBTQ+ rights across the country.
In 2018, 38 bills were introduced at the state level that targeted LGBTQ+ rights in one way or another. So far this year,2 411 anti-LGBTQ+ bills have been introduced, representing an almost 11-fold increase in just five years.
The majority (53 percent) of the 2018 bills were religious exemptions, which are bills that allow people or businesses to discriminate against others based on sexual orientation or gender identity if those characteristics violate their religious beliefs. For example, a bill in Oklahoma would have allowed individuals to deny services or goods that would have been used to “promote, advertise, endorse or advocate for a specific marriage, lifestyle or behavior,” if that marriage/lifestyle/behavior went against their religious beliefs.
In recent years, though, state lawmakers have expanded their ambitions, introducing a wider variety of anti-LGBTQ+ bills. There have been bills to ban books, bills to repeal bans on conversion therapy and bills to create a religious-based legal category of marriage that excludes same-sex couples. The most common types of legislation this year have been school restrictions (which include things like limiting classroom discussions of sexuality and gender), which account for 33 percent of anti-LGBTQ+ bills introduced in 2023, and health care restrictions (such as prohibiting trans kids from receiving gender-affirming care), which account for 27 percent. By contrast, religious exemptions were down to 8 percent of the bills introduced this year.
Smith said these trends in types of anti-LGBTQ+ legislation tend to occur in waves. “The first sports ban that … passed, a couple years ago, was not the first sports ban to be introduced,” Smith explained. “Those youth sports bans were introduced multiple times before we saw one pass, and we saw iterations, building off of what messaging they thought was working, what legal strategies they thought were working.” In 2018, there were no sports bans introduced. The next year, there were two. By 2021, 42 percent of anti-LGBTQ+ bills introduced were sports bans. So far this year, though, sports bans represent just 12 percent of proposed anti-LGBTQ+ legislation: After passing 28 sports bans into law across 19 states over the last four years, the wave has crested, and different trends (specifically, school and health care restrictions) are starting to surge in its place.
The vast majority of these bills don’t become law. Between 2018 and today, 88 to 97 percent of anti-LGBTQ+ bills introduced did not become law. And of those that did, many have been challenged in and even overturned by the courts. But as the raw number of these bills has increased, so too has the number becoming law: In 2018, just two anti-LGBTQ+ bills were ultimately signed into law. So far this year, 51 have become law. And Smith said that even just proposing these restrictions sends a hostile message to the LGBTQ+ community — particularly youth, who are often the specific targets of these bills.
Anti-LGBTQ+ bills have increased
Anti-LGBTQ+ bills introduced and enacted by state legislatures by year, 2018-2023
As waves of legislation have crested and receded, what’s left in their wake are red states with a new arsenal of restrictions on LGBTQ+ people — from where they can go to the bathroom, to whether they can play sports and seek the health care they need.
But not all red states have taken aim at LGBTQ+ rights with the same zeal. While Missouri has introduced more anti-LGBTQ+ bills than any other state (at least 99 between 2018 and 2023), it has yet to enact a single one (however, a handful of these bills were passed this legislative session and are expected to be signed by Gov. Mike Parson). But in Tennessee, where Republicans have enjoyed an ever-expanding majority in the state legislature for a decade, lawmakers have enacted 18 anti-LGBTQ+ laws over the past five years, more than any other state. Similarly, Arkansas — a state with a GOP supermajority in the legislature — has enacted 12 anti-LGBTQ+ laws since 2018. However, lawmakers in Nebraska, one of the most reliably Republican states in the nation, have been less preoccupied with restricting LGBTQ+ rights: In five years, the state legislature has seen just six anti-LGBTQ+ bills proposed, and only one — a law that prohibits gender-affirming care for minors — has been enacted, just this month.
The increase in anti-LGBTQ+ bills introduced and enacted over the last five years shows how the GOP has made LGBTQ+ issues central to its party agenda. And while many of these restrictions are unpopular at the national level, polling shows that specific anti-LGBTQ+ policies often have support from Republican voters in these states, encouraging lawmakers to keep continuing down this road.
But while the GOP’s focus on culture wars may be playing well in red states, it will face a renewed test on the national stage as the 2024 election ramps up. Many Republican presidential hopefuls are gambling on this strategy heading into the primary. Florida Gov. Ron DeSantis, who launched a presidential run this week, has spent the past few weeks making a spectacle of his signing of multiple pieces of anti-LGBTQ+ legislation. It demonstrates how these bills and laws are not just a Republican response to evolving social trends, but a résumé builder for GOP candidates heading into the election.