The Rhetoric of Criminalization: Critical Discourse Analysis of Restrictive Legislation on Gender-Affirming Care

In 2023, states across the U.S. have introduced over one hundred bills jeopardizing the legality of gender-affirming care for transgender and gender-diverse (TGD) children and adolescents. These bills contradict the expertise of medical professionals and represent an urgent health concern for TGD youth, who already experience health inequities and discrimination. They build upon an active 2022 legislative session, which saw bills like Alabama’s S.B. 184 rhetorically frame restrictions on gender-affirming care as a matter of the protection of children and conflate such care with genital mutilation. In this paper, I present findings from a critical discourse analysis of 20 bills from different jurisdictions that aim to restrict gender-affirming care for TGD youth and are either enacted, passed in a single chamber, or advanced in committee during the 2023 legislative session. I focus on how the language of this legislative corpus frames ethical issues like decisional capacity, reversibility, and the balance of benefits and harms—issues which implicate principles in clinical ethics. This analysis illuminates the extent to which these legislative texts (1) rhetorically invoke some ethical principles, such as beneficence, to rationalize the criminalization of gender-affirming care; and (2) transgress other bioethical tenets, such as autonomy. By exposing these rhetorical threads, I demonstrate how these policies appropriate and misuse ethical principles. Finally, this paper identifies routes by which these bills can be incisively opposed on ethical grounds and equips advocates with tools to engage in informed debates on gender-affirming care.