Regulating the Internet to Deregulate Gender Variance

Hatred and disinformation on the internet have ushered in a state of emergency for gender-variant people. Among other effects, they have generated political will to enact sweeping regulations that threaten to eradicate gender variance “from public life entirely,” as one political commentator has announced. This Note turns to history—specifically the history of the sex/gender binary and cross-dressing laws—to understand why false and inflammatory representations of gender variance are so prolific in our digital milieu. Since the mid-nineteenth century, cross-dressing laws have punished, disappeared, and made spectacles of people who have defied binary grammars for dressing their bodies in public. These laws also inaugurated novel authority to surveil and scrutinize gender diversity, which has found new life in the era of surveillance capitalism and its imperative to capture digital engagement.

My research fills a gap in the literature about online hatred and disinformation by examining their causes and consequences through the lens of gender variance. Privatization and deregulation have turned the internet into a modern freak show, wherein gender-variant people—who have already been demonized by nineteenth- and twentieth-century cross-dressing laws—are a featured exhibit. This inquiry prompts a regulatory solution that interrupts the economic incentive to proliferate hate speech and disinformation: a prohibition on the secret commercial harvesting of behavioral data.

Table of Contents Show

Everything in nature transforms. It does not stay the way that it started. It fundamentally becomes something new. Everything.

—Imara Jones[1]

Introduction

Gender-variant people[2] in the United States are experiencing a state of emergency.[3] In the past five years, every state and the United States Congress have introduced thousands of anti-transgender bills, and hundreds have passed.[4] These laws aim to prohibit gender-variant people from accessing healthcare, using the bathroom, playing sports, obtaining identity documents, being referred to by their names and pronouns, performing in public, raising children, mitigating prison abuse, being taught about in schools, serving in the military, and disclosing their identities on their own terms.[5] On the first day of his second term, President Donald Trump issued an executive order proclaiming, “It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality.”[6] In the weeks following, President Trump issued orders barring gender-variant people from serving in the military and prohibiting federal funding for gender-affirming schools, sports programs, and healthcare for people under age nineteen.[7]

But this attack is not merely regulatory. Gender-variant people are also subjected to violence, vitriol, censorship, and disinformation[8] campaigns. 2021 was the deadliest year on record for transgender and nonbinary people in the United States, principally for Black transgender women.[9] There were 567 reported incidents of harassment, threats, vandalism, or assault targeting gender-variant people from June 2022 to October 2024;[10] this included three separate bomb threats against Boston Children’s Hospital, one of which targeted its Gender Multispecialty Service program.[11] In the first seven months of 2022, five hundred of the most-viewed hateful X posts labeling the LGBTQ+ community and its allies as “groomers,” “predators,” “pedophiles,” and other slurs received seventy-two million views, 334,825 likes, and 64,435 reposts.[12] There were 10,046 book bans during the 2023–24 school year, with 39 percent of those books most commonly banned featuring LGBTQ+ characters or people.[13] In early 2025, the federal government scrubbed its public websites of references to gender variance.[14] And in the first minutes of Transgender Day of Remembrance in 2022, a twenty-two-year-old murdered two transgender people and three others at Club Q, an LGBTQ+ bar in Colorado Springs.[15]

For gender-variant people, the strategy of this onslaught is clear: Punish, disappear, and make spectacles of everyone who does not conform to the state’s gender assignments. By targeting children in particular, these assaults aim to deny gender-variant people a future.[16] This is not hyperbole; in a 2023 survey, nearly half of all gender-variant youth considered suicide and 14 percent attempted it in the year prior,[17] and the number of suicide attempts by gender-variant teenagers has increased by as much as 72 percent in states that have enacted anti-transgender laws.[18] Transgender adults are seven times more likely to contemplate suicide and four times more likely to attempt it than their cisgender[19] peers.[20] In a sense, gender-variant people have been enlisted in their own deletion.

I was drawn to the law, in part, because I wanted to understand its role in producing a society that could hate gender variance this much. That question is personal because I, like many in my community, am not the gender I was assigned at birth, and the relentless compulsion to embody something I am not can feel unbearable. For too many gender-variant people, “the ‘state of emergency’ in which we live is not the exception but the rule.”[21] But the space we have carved out to be ourselves is transcendent. Because my early legal career has coincided with an astonishing rise in anti-transgender regulations, I am motivated by the question of how the law can protect and expand that space.

Through my research, I began noticing a key piece of the puzzle. The more I searched for discourse about gender variance online, the more anti-transgender hate speech and disinformation algorithms volunteered to me. Now, when I open YouTube, my recommendations are populated by videos of pundits, influencers, and politicians decrying “woke gender ideology” and “transgenderism.”[22] My X feed links to articles about schools “grooming” students into being transgender and gender-affirming healthcare providers “sterilizing” and “mutilating” children.[23] Even when I have watched videos that have nothing to do with gender, I have been advertised trailers for a dramatized documentary about people who detransition.[24] This hysteria mirrors the rhetoric of politicians who are outlawing gender variance. It is fodder for their political strategy of manufacturing and then managing a transgender threat.[25]

If this is the content that internet companies[26] feed to a nonbinary lawyer studying gender regulations, what content do they feed to cisgender people or people questioning their gender identities?[27] What are the consequences of these representations, especially for people who have no known relationships with gender-variant people, and what regulations can intervene?

This Note considers how online hate speech and disinformation help generate the political will to enact sweeping gender regulations. I advocate for a prohibition on commercial online surveillance to curtail this content and, in turn, help foster a culture in which gender variance may be deregulated. To do so, I contemplate gender itself as a technology that is deployed through laws—not only those that govern healthcare, bathrooms, sports, identity documents, schools, workplaces, public performances, adoption, foster care, prisons, the military, and civil rights, but also those that permit surveillance capitalism, and the anti-transgender hate that fuels it, to flourish.

My analysis builds on Ruha Benjamin’s definition of technology as “a means to sort, organize, and design a social structure.”[28] According to Benjamin, power underlies this function:

Social and legal codes, like their byte-sized counterparts . . . reflect particular perspectives and forms of social organization that allow some people to assert themselves—their assumptions, interests, and desires—over others. From the seemingly mundane to the extraordinary, technical systems offer a mirror to the wider terrain of struggle over the forces that govern our lives.[29]

Legal and technical codes have been written together to command gender normativity as ubiquitous and gender variance as marginal—a glitch or bug in the social order, something unnatural that must be eradicated.[30] This framework helps reveal why amplifying hate speech and disinformation about gender variance is lucrative for internet companies and why anti-transgender regulations are politically salient.

As a governance technology, gender sorts people into categories that structure society: man from woman, but also natural from unnatural, normal from abnormal, and human from nonhuman. It is a “system of representation which assigns meaning . . . to individuals,” driving population-wide conformity.[31] Through reward and punishment, gender molds bodies into lives that serve the political and economic goals of the state.[32] At stake in the disruption of hate speech and disinformation about gender variance is the possibility of refashioning society so that conformity to one of two oppositional assignments of being is not mandated in exchange for a dignified life.

This Note is grounded in the theory that the law produces culture at the same time that culture produces laws.[33] Part I traces the origins of this dialectic in the Western colonial construction of the sex/gender binary. Part II examines how nineteenth- and twentieth-century cross-dressing laws produced contemporary anti-transgender culture—and binary sex/gender categories themselves—by relegating gender variance to criminality, secrecy, and spectacle.[34] Part III investigates how the internet reproduces and amplifies this culture. The economic imperative to capture user engagement, born under symbiotic processes of privatization and deregulation, has turned the internet into a modern freak show, wherein false and inflammatory representations of gender variance are lucrative clickbait. Part IV considers how this has led to the corruption of mainstream news, escalated threats and violence against gender-variant people, and renewed political will to outlaw gender variance “from public life entirely,” as one political commentator has announced.[35] Part V argues for a prohibition on the secret commercial harvesting of behavioral data, which would disrupt the economic logic that renders hate speech and disinformation profitable to begin with.

On first blush, the co-construction of anti-transgender laws and culture appears hopelessly self-perpetuating. But like any algorithm, its underlying logic may be rewritten. Assessing how this dialectic functions in the digital era illuminates key opportunities for intervention, both legal and cultural. While impact litigators challenge anti-transgender regulations as illegal discrimination—an endeavor that may fail in our conservative Supreme Court[36]—this Note considers legal interventions in anti-transgender culture that might steer us toward liberatory outcomes, not only for gender-variant people, but for everyone.

I. A Brief History of the Sex/Gender Binary

People invent categories in order to feel safe.

—James Baldwin[37]

Much scholarship has illuminated how the sex/gender[38] binary, or the “insistence that all bodies and ways of being can be meaningfully divided into discrete, opposing binary categories of male and female, man and woman, masculine and feminine,” has no biological basis.[39] Rather, it is a cultural and legal construction with roots in the Enlightenment, colonization, slavery, patriarchy, eugenics, and white feminism that is designed to naturalize power arrangements, derive profit, and ostracize or obscure gender- and sex-variant people.[40] This history illuminates how regulations enforcing the categories “man” and “woman” have always been critical for perpetuating inequality and consolidating capital in the United States.[41] It also clarifies why deregulating gender variance in the digital era will require abolishing markets that exploit those constructions at the expense of gender-variant people.

Prior to the Enlightenment, Europeans conceived of sex as “a matter of degree and gradations on one basic type”: the “male form.”[42] This “one-sex model,” as historian Thomas Laqueur describes it, understood sex differences vertically rather than horizontally, whereby “woman” was a less-evolved state of “man” and not a separate category in and of itself.[43] The vagina, labia, uterus, and ovaries were theorized as imperfect inversions of the penis, foreskin, scrotum, and testicles, respectively, which had formed without vital heat.[44]

Laqueur chronicles how a “two-sex model” that conceived of men and women as anatomical “opposites, as incommensurable” arrived during the Enlightenment alongside endeavors to structure European society according to a public sphere for men and a private sphere for women.[45] Grounding this distinction in bodies fit for industry, rationality, politics, and conquer versus bodies fit for domesticity, piety, emotionalism, and procreation offered European male theorists “a way of explaining—without resorting to the natural hierarchies of the one-sex model—how in the state of nature and prior to the existence of social relations, women were already subordinated to men.”[46]

Fashion historians note how clothing has mapped cultural formulations of gender onto sexed bodies. In early modern Europe, wigs, mini-skirts, and stockings signified white aristocratic masculinity, and men’s exclusive domain over “the dressing and display of legs” evidenced their “self-determination and rationality.”[47]

But even with the invention of a “two-sex” model, neither sex nor gender was ever binary under the rubric of European empire. “[F]rom the very origin of . . . the Western world system, there were never simply ‘men’ and ‘women.’”[48] Rather, sex and gender have always been class- and “race-specific.”[49] Greg Thomas writes, “There is surely no gender to be shared by white and Black persons in Plantation America. There is no universal man socialized in opposition to a universal woman, or vice versa; there is a white man and a white woman specified over and against Black African ‘slaves’ . . . .”[50] Similarly, María Lugones explains that “only white bourgeois women have consistently counted as women so described in the West. . . . Women racialized as inferior were turned from animals into various modified versions of ‘women’ as it fit the process of global, Eurocentered capitalism.”[51] In other words, Europeans invented and then laid exclusive claim to the categories “man” and “woman” as signifiers of their supremacy over the people and lands that they conquered.

A white sex/gender binary emerged to serve European colonization and chattel slavery because it substantiated other (racial) binaries like “human” versus “savage” and “master” versus “slave” that were necessary for those enterprises.[52] Margaux L. Kristjansson and Emma Heaney note that “[i]n the transatlantic slave trade that was used to convert Indigenous lands to settler property and capital, white settlers fashioned their genders in relation to Black and Native genders that they deemed aberrant.”[53] The aberrant genders that European settlers attributed to non-European people were foundational to construing them as nonhuman and thereby disposable via enslavement, assimilation, land theft, and genocide.

On the heels of novel evolutionary theories posited by Charles Darwin and Herbert Spencer, late nineteenth-century eugenicists refined the white colonial sex/gender binary in opposition to nonwhite sexual ambiguity by fixing race and sex (or nonsex) onto the bodies of their research subjects. In 1897, William I. Thomas wrote in the American Journal of Sociology that the body of a white woman “resembles the child and the lower races.”[54] He then asserted that “[m]orphological differences [between sexes] are less in low than in high races, and the less civilized the race the less is the physical difference of the sexes.”[55] In other words, white male eugenicists like Thomas purported to ascertain presocial racial hierarchies from the degrees of distinction they observed in sexed bodies.[56] The anatomical gulfs they imagined—between their own bodies and those of white women and between definitively sexed white bodies and less-sexed (or nonsexed) nonwhite bodies—signified their rightful place at the apex of a racially gendered social order.[57] Indeed, eugenicists came to regard “civilization itself . . . as a biologically transmissible racial trait—so far exhibited only by the more advanced white races.”[58] Medical diagnoses, in turn, became a medium for explaining social inequalities in human flesh rather than in the social, political, and economic conditions of empire.[59] Doctors also began performing nonconsensual surgeries on intersex infants to conform their bodies to the sex/gender binary’s mandates.[60]

Notwithstanding that the sex/gender binary allowed white men to justify their sexism in the bodies of white women, white feminists doubled down on the racist logic of the binary to benefit from white supremacy. When white women began agitating for the right to vote in the late nineteenth and early twentieth centuries—and, relatedly, the right to wear pants—they faced a complex dilemma of needing “to prove that voting would not be detrimental to their health, reduce their fertility, or interfere with their social responsibilities as wives and mothers,” while also showing “that their demands, if met, would not jeopardize the sexual differences on which their racial supremacy and Christian civilization were based.”[61] This was especially important within the shifting racial landscape of emancipation, the passage of the Fourteenth and Fifteenth Amendments, westward expansion, and immigration from southern Europe and Asia.

Seizing the moment, white feminists founded several “civilizing” programs in the late nineteenth century, including the Women’s National Indian Association (WNIA), which offered Indigenous people the “gift of patriarchy.”[62] WNIA’s key objectives were to instantiate “individual (male) ownership of land; monogamous family structures; . . . Indian women’s assumption of white women’s domestic duties; . . . and adoption of white styles of dress and appearance.”[63] Yet a contradiction emerged, whereby “sexual difference was to be inserted into primitive cultures as a way to lessen the racial difference between primitives and the civilized; but sexual difference was to be removed from civilization as a way to promote equality between white men and white women.”[64] By displacing a sex/gender binary onto Indigenous people—and, in other contexts, onto Black people and immigrants—white feminists hoped to disarticulate their own bodies from the sex differences that had barred them full access to white power.

*          *         *

This history reveals how “man” and “woman” are not biological or inevitable categories. Misconceiving of sex and gender in that way not only dislodges these categories from the historical conditions that produced them; it also obfuscates the underlying political objectives that past and present gender regulations have aimed to achieve. More specifically, it risks conflating the descriptive and normative powers of the law. If we mistake “man” and “woman” as presocial, prelegal, prehistorical, or preracial categories, we may confuse gender regulations as merely describing bodies and lives as they already are rather than norming bodies and lives into what the state requires them to be. As Katherine Franke writes:

[J]udicial and administrative efforts to make essential sexual meaning are anything but descriptive. Rather, these efforts represent a performative exercise whereby the world is brought into conformity with the word. . . . By policing the boundaries of proper gender performance in the workplace and in the street, both civil and criminal laws have been invoked to punish gender outlaws, and thereby reinscribe masculinity as belonging to men and femininity as belonging to women.[65]

This Note directs our attention to the “negative effects of living in a society that governs us all by norming our bodies,” not only by penalizing gender transgressions but also by failing to regulate an online marketplace that trades in hate speech and disinformation about gender-variant people.[66] Without intervening in the latter problem, anti-transgender laws and culture will carry on “enmeshing [bodies] within norms and expectations that determine what kinds of lives are deemed livable or useful and . . . shutting down the spaces of possibility and imaginative transformation where people’s lives begin to exceed and escape the state’s uses for them.”[67] In other words, regulating the internet is critical to undermining a mode of governing that demands conformity to the sex/gender binary by outlawing gender variance.

II. X-Men, Mutants, and Demons of Gender Regulations Past

[F]rom the moment we decide to be a transgendered person, [we] are living outside the law. . . . Because it’s not a legal thing that we’re doing. We can be beaten, attacked, and killed, and it’s OK . . . . You are already a convict for just how you express yourself . . . .

—Miss Major Griffin-Gracy[68]

To understand how regulating the internet can help deregulate gender variance, this Part interrogates why gender-variant people are so reviled in contemporary life. Roots of this culture originate in nineteenth- and twentieth-century cross-dressing prohibitions, which “shap[ed] the legal categories of man and woman and limit[ed] who could lay claim to each.”[69] I read these legal codes as source code for the sex/gender binary, which has been a key technology for shoring up power and capital for white men during the industrialization, urbanization, and colonial expansion of the United States.[70] By inaugurating novel authority to surveil and scrutinize gender diversity, cross-dressing laws installed a societal vigilance for deviant bodies, appearances, and behaviors that has outlived their original jurisdiction. Decoding their logics, and the capitalist interests that programmed them, is essential for discerning why politicians and internet companies persist in marking gender variance for deletion.

The hysteria underlying contemporary gender regulations is based, in part, on the contention that gender-variant people are new.[71] In February 2023, President Trump asserted that the “concept” of being “born with the wrong gender . . . was never heard of in all of human history—nobody’s ever heard of this, what’s happening today. It was all when the radical left invented it just a few years ago.”[72] In March 2023, Missouri Attorney General Andrew Bailey issued an emergency declaration deeming gender-affirming healthcare an “unfair, deceptive, fraudulent, or otherwise unlawful practice” when a provider fails to, among other conditions, ensure “that the patient is not experiencing social contagion with respect to the patient’s gender identity.”[73] According to the Florida Agency for Health Care Administration, “social factors (e.g., peer influences and media)” help explain the “sudden increase of parents reporting their daughters declaring themselves to be transgender without any previous signs of gender dysphoria.”[74] And in a legislative debate on April 10, 2023, over the so-called “Safety in Private Spaces Act,” a Florida bill to prohibit transgender people from using public bathrooms, State Representative Webster Barnaby proclaimed:

I’m looking at society today, and it’s like I’m watching an X-Men movie . . . . We have people that live among us today on planet Earth that are happy to display themselves as if they were mutants from another planet. This is the planet Earth, where God created men male and women female. . . . That’s right. I called you demons and imps who come and parade before us and pretend that you are part of this world.[75]

Barnaby later apologized for his remarks,[76] but the bill became law on May 18, 2023.[77]

Premising regulations that outlaw gender variance upon the contention that gender-variant people are new allows politicians to exploit their constituents’ anxieties over changing social and economic conditions.[78] But on its face, the “emergency” nature of the threat is dubious in light of the fact that laws regulating gender variance are more than 175 years old in the United States.[79] In 1843, St. Louis criminalized a person’s appearance in public “in a dress not belonging to his or her sex.”[80] Similar or identical regulations proliferated in the criminal codebooks of at least seventy municipalities across the country in the nineteenth and twentieth centuries, enmeshed in broader statues targeting indecency, public nuisance, sex work, people with disabilities, and immigrants racialized as nonwhite.[81] States like California and New York also banned cross-dressing, albeit indirectly, by criminalizing public “disguise” or “masquerade.”[82] In the mid-twentieth century, some jurisdictions expanded cross-dressing laws to prohibit gender variance in private spaces open to the public like performance venues.[83] Although no database exists, Clare Sears estimates that thousands of people have been arrested and convicted under cross-dressing laws.[84]

How can it be that gender-variant people, like “X-Men” or “mutants from another planet,”[85] are so new as to prompt emergency declarations, yet their appearance in public has been criminalized for the better part of two centuries? What do recent laws prohibiting “male or female impersonators” “[o]n public property,”[86] healthcare that misaligns with “the classification of a person as either male or female based on the organization of the human body,”[87] or the participation by children with “the physical form as . . . male” in “sports designated for females”[88] accomplish that laws prohibiting a person from appearing in public “in a dress not belonging to his or her sex”[89] failed to accomplish in the last two centuries?

Perhaps we can only understand the subjugated status of gender-variant people today by considering the “productive capacities” of historic cross-dressing laws to codify “new definitions of normative and nonnormative gender.”[90] In other words, “gender deviance [was] produced, coded, and monitored” by the surveillance culture that cross-dressing laws helped engineer.[91] And through that culture, cross-dressing laws defined the categories of “man” and “woman,” too. These legacy regulations, which arose to regulate much older practices of gender variance, in fact produced new gender categories (and noncategories) that are the stuff of political emergency today. By unsettling notions of what is old, what is new, and what is exigent, I hope to “erode this distinction between then and now.”[92]

While gender variance is as old as gender itself,[93] perhaps politicians are correct in assessing transgender and nonbinary people as new, not only in name—since the words “transgender” and “nonbinary” first gained traction in the 1990s and early 2000s, respectively[94]—but also as coherent political identities requiring hundreds of regulations to be eradicated. Yet the supposed novelty of the people these regulations target must not distract us from noticing patterns in how they are justified and what they aim to achieve. Like nineteenth- and twentieth-century cross-dressing laws, contemporary gender regulations rely on tropes of gender-variant people as dangerous, immoral, iconoclastic, and mentally ill.[95] And just as nineteenth- and twentieth-century cross-dressing laws emerged during a period of “unprecedented growth” to consolidate power for “white, male, merchant elite[s],” so too have contemporary gender regulations emerged during a period of unprecedented growth in a new, digital era of capitalism to preserve and fortify the power structures that predate it.[96]

Cross-dressing laws were a response to profound changes in “social meanings of city space” in the nineteenth and twentieth centuries caused by urbanization, industrialization, immigration, emancipation, and Jim Crow segregation, and they were enacted, in part, to serve the commercial interests of an assertive capitalist class.[97] Like “sumptuary laws that regulated dress in Europe and pre-Revolutionary America,” cross-dressing laws “were designed to regulate dress in order to mark out as visible and above all legible distinctions of . . . rank within a society undergoing changes that threatened to blur or even obliterate such distinctions.”[98]

San Francisco’s cross-dressing ordinance, for example, appeared in a new chapter of its codebook, “Offenses against Good Morals and Decency,” that did not exist prior to 1863 when cross-dressing and sex work were permissible.[99] In the wake of the California gold rush and the economic insecurity that followed it, morality-based regulations like cross-dressing laws developed to enforce “a vision of political and social stability, rooted in fiscal conservatism and family life, which would attract outside investors and enable their commercial success.”[100] By regulating how bodies could appear, behave, and participate in public life and designating people that defied the sex/gender binary’s mandates as “inherently threatening and morally depraved,” cross-dressing laws reflected “not only changing conceptions of gender but also changing notions of governance.”[101]

The following Sections trace how historic cross-dressing laws punished, disappeared, and made spectacles of gender-variant people, producing a culture bent on weeding out gender diversity that was previously unremarkable. Laws meant to eradicate gender variance instead pushed the nation to seek out, vilify, and outlaw new iterations of it—a legacy that endures in gender regulations today and the online hate that generates enormous profit. And yet, gender-variant people live on, the X-Men, mutants, and demons of regulations past, subjected to regulations anew.

A.      Punishment

The punitive logic underlying contemporary anti-transgender regulations and culture is rooted in historic cross-dressing laws, which initially sanctioned the legal and extralegal punishment of gender-variant people. By authorizing such treatment, fledgling cities in the United States enacted a broader strategy of governing social hierarchies through coercing conformity to binary sex and gender norms.[102]

Although cross-dressing was a misdemeanor offense, arrests and convictions often had life-altering consequences. Legal penalties included fines, imprisonment, psychiatric institutionalization, and deportation, whereas extralegal punishments included public exposure, harassment, and physical and sexual violence by law enforcement officers and the public.[103] Jeanne Bonnet, for example, was arrested more than twenty times in the mid-1870s for violating San Francisco’s cross-dressing ordinance and faced heavy fines, incarceration, and additional charges.[104] Linda Sue Jackson was arrested multiple times for cross-dressing in 1977 and was stripped naked, severely beaten, and sexually assaulted by police.[105] Geraldine Portica, who had lived in San Francisco since girlhood, was arrested and promptly deported to Mexico for cross-dressing in 1917.[106]

Punishments were particularly torturous and even deadly when courts deemed cross-dressing offenders criminally insane. After being arrested and subjected to genital inspection for cross-dressing in 1890, Dick/Mamie Ruble was sentenced to indefinite detention at the Stockton Asylum and died of tuberculosis there eighteen years later.[107] Newspapers at the time sensationalized Ruble’s story in articles titled “To the Asylum,” “She Wanted to Be a Man,” and “A Strange Delusion.”[108] Sophie Lederer suffered a similar fate after being committed to the Stockton Asylum in 1899 for a single cross-dressing violation and died of heart disease there in 1908.[109] Henry Pohlmann, on the other hand, served two months in the Stockton Asylum for cross-dressing before being deported to Germany in 1894.[110] In that case, San Francisco’s Insanity Commission determined that Pohlmann “labor[ed] under the delusion that he [was] a woman,” and doctors identified “masturbation as the cause of insanity.”[111] Once institutionalized, gender-variant people were often subjected to hysterectomies, vasectomies, castrations, clitoridectomies, or blistering of their vulvas, prepuces, or thighs by state doctors—punishments that may have contributed to their premature deaths.[112]

In the twentieth century, cross-dressing laws authorized police to indiscriminately harass gender-variant people and raid bars and nightclubs where they congregated. Indeed, cross-dressing laws “became a key tool for policing lesbian, gay, and transgender communities,” and their frequent enforcement prompted riots that are widely credited for establishing the contemporary LGBTQ+ rights movement in the United States.[113] In 1966, a late-night riot erupted at Compton’s Cafeteria in San Francisco when police attempted to arrest a drag queen, and in 1969, a similar riot broke out at the Stonewall Inn when police attempted to arrest a transmasculine person for wearing “men’s” clothes.[114] This history suggests that contemporary gender-variant identities have been forged in relation to regimes of punishing gender variance that were introduced by cross-dressing laws in centuries prior.

In Transgender Tropes & Constitutional Review, Jennifer Levi and Kevin Barry identify three tropes that have survived as justifications for punishing gender-variant people since the advent of cross-dressing laws: that they are (1) dangerous, (2) immoral, and (3) iconoclastic.[115] The first trope casts gender-variant people—particularly transfeminine people—as fraudulent and nefarious “sexual predators.”[116] The second trope casts gender-variant people as inherently worthy of “discomfort, disgust, and disdain.”[117] The third trope casts gender-variant people as attention-seeking “irreverent agitators who undermine community norms—particularly those relating to personal privacy.”[118] A fourth trope, that gender-variant people are mentally ill, purports to explain why gender-variant people are prone to danger, immorality, and iconoclasm in the first place.[119]

In the late twentieth century, cities and courts relied on these tropes to justify cross-dressing ordinances. In City of Chicago v. Wilson, Chicago argued that its cross-dressing ban was necessary “(1) to protect citizens from being misled or defrauded; (2) to aid in the description and detection of criminals; (3) to prevent crimes in washrooms; and (4) to prevent inherently antisocial conduct which is contrary to the accepted norms of our society,” despite presenting no evidence that the transgender challengers were “engaged in deviate sexual conduct or any other criminal activity.”[120] In City of Columbus v. Zanders, the court determined that Columbus’s cross-dressing ordinance had “a real and substantial relation to the public safety and general welfare” because there were “numerous subjects who would want to change their sex identity in order to perpetrate crimes of homicide, rape, robbery, assault, etc.”[121] And in People v. Simmons, the court opined that “Western civilization has long abhorred transvestism” because, among other reasons, the “inability of the male and female of the species to recognize each other’s differences may lead to frustration of the reproductive urge.”[122] This mirrors Texas’s argument in Mayes v. Texas that Houston’s cross-dressing law protected a valid state interest in “the survival of the race.”[123] In other words, cities and states punished gender variance not only to quash the menace it posed to the gender-normative public but also to uphold the European civilization upon which the nation was established.

Although courts eventually struck down cross-dressing laws for violating the First, Eighth, and Fourteenth Amendments, the justifications for punishment they engendered by linking gender variance to danger, immorality, iconoclasm, and mental illness are as alive today as they were when they were enforced.[124] In June 2023, for example, competitive swimmer Riley Gaines testified before the Senate Committee on the Judiciary regarding her “extreme discomfort in the locker room”  from being exposed to the body of a transfeminine competitor.[125] The first page of Project 2025’s “Mandate for Leadership,” a conservative policy agenda coauthored by members of President Trump’s prior and current administrations, describes “the toxic normalization of transgenderism with drag queens and pornography invading . . . school libraries” as an example of how the United States is “besieged by existential adversaries.”[126] And shortly after Representative Sarah McBride was elected as the first openly transgender person to serve in Congress, Representative Marjorie Taylor Greene described her as a “mentally ill . . . biological man pretending to be a woman” and transgender women, generally, as “predators in your bathroom” in an interview outside of a House Republicans conference.[127] Greene did not mention that “there is no current evidence that granting transgender individuals access to gender-corresponding restrooms results in an increase in sexual offenses” or that, according to recent research, gender-variant people are “more likely to experience sexual assault” when their restroom and locker room use is restricted.[128]

While cross-dressing laws are perhaps the most explicit example of how gender variance became criminal, their underlying premise that gender variance can and should be punished has become ubiquitous in contemporary life. As Susan Stryker explains, “People who are perceived as not-quite-human because of their gender expression are often socially shunned and may be denied” the ability “to cross national borders, qualify for jobs, gain access to needed social services, and secure legal custody of [their] children.”[129] Dean Spade also reminds us that “[a]ccess to participation in the U.S. economy has always been conditioned on the ability of each individual to comply with norms of gendered behavior and expression.”[130]

When gender-variant people are locked out of employment, housing, education, public benefits, family support, and public facilities and are “routinely harassed by law enforcement and security officials for undertaking basic daily activities like using the toilet . . . or walking down the street,” it is no surprise that 16 percent of transgender people, 20 percent of transgender women, and almost half of Black transgender people have been incarcerated.[131] Indeed, transgender people are three times more likely to be incarcerated than cisgender people.[132] Once imprisoned, they frequently endure “[r]apes, very nasty physical assaults, and beatings” by inmates and prison guards, especially when denied access to gendered facilities of their choosing.[133] And upon release, they face often-insurmountable barriers to finding housing and employment, consigning them to “a revolving door of incarceration.”[134]

But punishment was not the only work of cross-dressing laws; Sears explains that these laws “did not eradicate all cross-dressing practices, but [they] did ensure that those who continued to engage in them would be classified as criminal, aberrant, not belonging. In the process [cross-dressing laws] set in motion new definitions of gender normality and abnormality and new modes of exclusion from public life.”[135] Through exclusion, disappearance was their second act.

B.      Disappearance

Cross-dressing laws disappeared gender-variant people by criminalizing their personhood and, in the process, mandated that the public conform to manufactured sex and gender norms. These laws constructed gender-variant people as super-minorities within a body politic that comported, as if inevitably, with assigned designations of “man” or “woman,” reinforcing a mythology of the sex/gender binary as preprogrammed by God or biology rather than the colonial interests of white men.[136] As such, cross-dressing laws fabricated an “illusion of a perpetual cisgender majority,” which endures in the false narrative that transgender and nonbinary people are “unprecedented, and therefore illegitimate as a way of being.”[137] Explicating this history, and its afterlife on the internet and in contemporary gender regulations, helps illuminate why attempts to surveil, scrutinize, and eradicate gender variance have “very little to do with inherent classifiability of identities or bodies and instead [have] everything to do with the power to classify” in the first place.[138]

Prior to the advent of cross-dressing laws, gender-variant people were largely unremarkable in the United States and Europe.[139] Heaney notes that in nineteenth-century “working-class districts of London, New York, Paris and elsewhere,” “mollies and fairies”—terms for transfeminine people at the time—“functioned socially as women.”[140] They were “visible members of working-class communities . . . [who] wore dresses, plucked their eyebrows, used makeup, called themselves and each other by feminine names and pronouns, worked in feminized sectors (often as [sex workers]), and engaged in sexual and other relationships in female roles.”[141] As such, “[f]airies were viewed as interchangeable with cis women in sexual and domestic pairings.”[142]

Similarly, “a wide range of cross-gender practices flourished” in San Francisco prior to the passage of its cross-dressing ordinance.[143] This was facilitated, in part, by the city’s overwhelmingly male-assigned population—98 percent in 1849 and 85 percent in 1852—that resulted from gold rush migrations during the period.[144] This gender disparity opened “spaces of possibility for some men to experiment with femininity in dress and labor, some women to perform masculinity in predominantly male social worlds, and some people to live as a gender they were not assigned at birth,” even though these possibilities were mediated by racism.[145] At recreational dances in gold mining camps and city balls, for example, white people cross-dressed to balance the availability of feminine dance partners, but they also engaged in racial mockery by wearing blackface or displaying Asian people for amusement.[146] San Francisco’s gender disparity also disrupted gendered labor systems, whereby white men took over domestic roles traditionally ascribed to white women.[147] But when the California legislature passed a tax targeting Chinese miners, “European American observers deemed [Chinese men] to have a natural, feminine propensity for women’s work” that relegated them to domestic roles.[148] So while gender variance in dress and labor was socially and legally acceptable prior to cross-dressing laws, it was conditioned by white supremacy.

Racial dimensions aside, the permissible status of gender variance in the mid-nineteenth century did not last. As Heaney notes, “sex became cis” through particular “historical development[s],” like cross-dressing laws, “that made genitals the ground for sex identity.”[149] Aside from punishing isolated instances of gender transgressions, these laws had a broader effect of disappearing gender-variant people, and gender variance itself, from public life.[150]

Superficially, cross-dressing laws may be thought of as regulating clothing alone. This suggests that they criminalized behavior, not people. The prohibited act was the public appearance of a body dressed in materials that did not “belong” to that body’s sex, and violations could be avoided by wearing the “correct” clothes. But in order to discern the transgression, one must already have decided a number of other belongings: Which manners of dress “belonged” to which sex? Which bodies “belonged” to which sex? Which materials “belonged” to one’s dress? What spaces “belonged” to the public? What degree of misalignment between a body and its dress “belonged” under the purview of the law? And who should decide? Police? A judge? An Insanity Commission? Immigration officials? The public?

Through contending with these inquiries, we can understand cross-dressing ordinances as regulating something much deeper than clothing. For people “who wore gendered clothing to present an enduring gender identity that did not match their legal sex,” cross-dressing laws “effectively outlawed their existence. This fundamental slippage—from criminalizing acts to criminalizing personhood—was central to the law’s segregationist effects.”[151] Whether or not one endured arrest and conviction for violating a cross-dressing ordinance, the threat of punishment itself already accomplished the law’s objectives to police “the types of people who ‘belonged’ in public city space and the types of bodies that ‘belonged’ in the categories of man and woman.”[152] They accomplished the former in tandem with other indecency provisions that outlawed whole swaths of “problem bodies” from city streets: immigrants, people of color, people with visible disabilities, sex workers, and low-wealth people.[153] They accomplished the latter by confining “gender difference to private or hidden realms” and “marking public city space as exclusively gender normative.”[154]

The consequences of this disappearance were profound. “Everyday activities, such as going to the shops, enjoying a night on the town, or even walking through one’s own neighborhood, brought surveillance and arrest.”[155] The alternative option—confining one’s gender expression to secrecy—was psychologically harmful and required access to private spaces outside the watchful eye of vigilante neighbors.[156] Banishing gender-variant people from public spaces also stunted their democratic participation by imposing “considerable obstacles to community formation and collective politics.”[157]

This legacy is reflected in the opposition faced by the few gender-variant people who have been elected to public office. In 1992, Althea Garrison became the first transgender person elected to a state legislature, but she was publicly outed two days later, “effectively ending her political career.”[158] Her gender variance alone was disqualifying. Approximately thirty years later, the Montana House of Representatives blocked a transgender state representative from appearing or speaking from the House Floor after she stated that her colleagues would have “blood on [their] hands” if they voted for a prohibition on gender-affirming healthcare for minors.[159] That same year, the Oklahoma House of Representatives censured and removed the first openly nonbinary state legislator in the United States from their committee positions after they allowed a protester of a proposed gender-affirming healthcare ban to use their office.[160] And when Representative McBride was elected as the first openly transgender member of Congress in 2024, Representative Nancy Mace introduced a resolution two weeks later to ban McBride from using women’s facilities in the Capitol and then posted about it on social media more than three hundred times in three days.[161] The House of Representatives later adopted that policy and directed the Sergeant-at-Arms to enforce it.[162] In short, the historic erasure of gender variance from public life has staged new erasures of gender-variant people from the institutions that govern it, especially when they advocate for gender-variant constituents.

Through confining gender-variant people to the closet, prisons, and psychiatric wards, cross-dressing ordinances laid the groundwork for construing transgender and nonbinary people today as glitches or bugs within an otherwise “gender normative nation,” rendering them vulnerable to detection and deletion once again.[163] By requiring gender-variant people to either change “their clothing to comply with the law or evad[e] police detection by fully ‘passing[,]’ . . . cross-dressing law reinforced the very notion of ‘difference’ as anomalous by exaggerating the prevalence of the ‘norm.’”[164] In turn, they circumscribed an “artificially narrow range of gender” possibilities for everyone else.[165] Put differently, cross-dressing regulations required compliance with one’s gender assignment as a precondition for becoming a “viable and culturally intelligible subject.”[166] As State Representative Barnaby’s remarks before the Florida legislature suggest, they produced an enduring culture that demands this compliance for one to count as human or part of this world at all.[167]

By threatening punishment and disappearance, cross-dressing laws demanded an answer to the question: Are you a man or a woman?[168] Those who were brave enough to respond on their own terms not only became criminals; they became spectacles, too.

C.      Spectacle

In seeking to root out the dangerous, immoral, iconoclastic, and insane figures that they purported to regulate, cross-dressing laws not only disappeared gender-variant people but also, synergistically, turned them into spectacles for public consumption and profit. By sorting bodies and their apparel into discoverable sex and gender categories, these laws deployed a visual politics of discerning normality and abnormality from mundane human differences.[169] With sights set on punishment and disappearance, they inaugurated new surveillance regimes of looking for and looking at bodies, first by law enforcement officials and later by the general public.[170]

Because cross-dressing was a “peculiarly visual crime[,] . . . police had to look for and uncover the body underneath.”[171] This required “intimate surveillance [that] promised to reveal the truth of cross-dressing crimes and restore legible, knowable, binary gender” by, for example, scrutinizing suspects’ hair, gait, skin, or the size of their hands and feet.[172] Once police apprehended cross-dressing offenders, they were subjected to public displays as “troubling nuisances and fascinating freaks.”[173] Police often forced arrestees to strip in their jail cells and photographed them for no other purpose than humiliation.[174] Later on, court reporters penned stories of “cross-dressing criminal[s] for their readers’ consumption and pleasure” by sensationalizing their clothing and bodies in vivid detail.[175] By the 1890s, newspapers began publishing artist sketches of offenders, inviting readers to see the spectacle for themselves.[176]

The platform that cross-dressing laws provided for sensationalizing gender variance was also bolstered by a literal platform: the performance stage. In San Francisco, gender “impersonators” had been a featured act of vaudeville theaters since the beginning of the gold rush.[177] Advertised as magicians and illusionists, these performers “confirmed rather than threatened the ostensibly natural and immutable gender divide” by magically transforming genders onstage yet emphasizing their gender normativity offstage.[178] Whereas cross-dressing laws “produced [their] own displays of gendered problem bodies in courtrooms, police photographs, and crime reports,” the gender illusionists of vaudeville theaters “reinscribed the gender boundaries that the law policed.”[179]

Freak shows, on the other hand, featured problem bodies that municipal codebooks criminalized, making gender variance a spectacle alongside disability and racial difference. In these settings, “bearded ladies” and dissected corpses of intersex people were displayed alongside infected sexual organs and Black people (or white people in blackface) who were advertised as the “missing link” between animals and humans.[180] Some performers, such as Milton Matson, were recruited to the freak show stage precisely because they had been arrested for violating cross-dressing laws.[181] In that sense, the “racialization, sexualization, and dehumanization” in both criminal law and the freak show were co-constructive.[182] Like cross-dressing laws, freak shows helped “produce vigilant audiences trained in the pleasures of suspicion.”[183] And through participating in the public humiliation of gender-variant people, audiences internalized the imperative to conform.[184]

Tabloids, theaters, and freak shows were not the only entities that capitalized upon the market opportunities that cross-dressing laws introduced; dive bars hired “female impersonators” to exploit the same spectacle.[185] One performer, Charles Harrington, was arrested after stepping down from a bar stage to interact with two patrons, but a judge released Harrington without penalty after clarifying, “You must confine yourself strictly to the footlights.”[186] In other words, Harrington’s cross-dressed body could only be entertaining or criminal—there was no in-between.

A key cultural production of cross-dressing laws was this profound restriction of the roles that gender-variant people were permitted to play in public life. This restriction persists today, including in the surveillance operations of the commercialized internet. In both settings, the profit motive has run the show.

*          *         *

In her memoir, Redefining Realness, Janet Mock describes the complex interplay between punishment, disappearance, and spectacle that is the legacy of cross-dressing laws. Despite coming of age in a society “that didn’t offer [her] a single image of a girl” like her, Mock describes “[t]he media’s insatiable appetite for transsexual women’s bodies . . . as modern-day freak shows,” which caused her to “yearn to separate [herself] from the dehumanizing depictions.”[187] Mock also describes coming to see herself and other transgender women as “surviving outlaws” who “took control of their bodies . . . because their bodies, their wits, their collective legacy of survival, were tools to care for themselves when their families, our government, and our medical establishment turned their backs.”[188] These reflections provide a window into the precarity and resilience of contemporary gender-variant life.

By marginalizing gender variance, cross-dressing laws created ideal conditions for vilifying transgender and nonbinary people in the rapidly shifting social and economic order of the early twenty-first century. Cast as X-Men, mutants, and demons, gender-variant people are nowhere to be found yet always on full display, ostracized and discarded yet somehow still an urgent and existential threat. With historical context, we may become more skeptical of characterizations of people who violate gender norms as novel, evil, deranged, menacing, or unnatural. We may understand how cross-dressing laws allowed these caricatures to become believable and politically salient. And we may come to see gender-variant people as enduring, vital, and entitled to protection because they remind us that our bodies are our own and do not belong to the state. Perhaps State Representative Barnaby’s likening of gender-variant people to X-Men was appropriate in the sense that gender-variant people are, like the movie and comic book characters, targeted for their differences and perceived threat to the social order.[189] That fans revere X-Men for teaching tolerance in the face of bigotry may have escaped Barnaby, but it can signal for the rest of us that gender-variant people deserve love and compassion, too.

Understanding how nineteenth- and twentieth-century cross-dressing laws manufactured gender possibilities and impossibilities in the present is essential for evaluating the internet’s role in manufacturing the political will to regulate gender anew. This history underscores how “the idea that most people fit into binary sex and gender categories took a tremendous amount of work to construct and[,]” as Part III takes up, “takes a tremendous amount of work to maintain.”[190] In the digital era, interrupting that work will require a deep dive into the mechanics of the internet, which, like nineteenth- and twentieth-century cross-dressing laws, relies on the demonization of gender variance as a source of power and profit. In these mechanics, we find the latest iterations of a surveillance culture that cross-dressing laws helped engineer.

Part III investigates how the commercialized internet structures a digital marketplace that trades in hate speech and disinformation about gender variance, which fuels the latest political crusade against gender-variant people. Grounding this analysis in the logics of punishment, disappearance, and spectacle that have characterized this country’s approach to managing gender-variant people for nearly two centuries might offer us some clarity and hope. It allows us to approach the new problems posed by the internet as merely the latest rendition of an old trick—one that gender-variant people have always transcended in style and, sometimes, with a bold red lip.

III. From Freak Shows to Clickbait

[N]either the machines nor their owners care if your messages are fact or fiction, malicious or angelic, fashioned to produce violence or joy. They have no interest in curing your disease or what you do, or say, or buy, or eat, or think, or whom you love, or why you grieve. They simply must insist that these and every other facet of your existence is lived in ways that allow their machines to extract the predictive signals that reduce others’ uncertainty about what you will do next and thus contribute to others’ profit.

—Shoshana Zuboff[191]

On a random January evening in 2024, I ran a keyword search for “transgender” on the social media website X (formerly Twitter).[192] Under the “Top” tab, which ostensibly ranks results by relevance and popularity, X displayed accounts of three transgender advocacy organizations in a compact “People” section at the top of the page. Beneath this, and with more visual real estate, X displayed posts containing images and videos that played automatically as I scrolled. The top post proclaimed, “Congratulations, everyone. This is YOUR win. You all showed what happens when you stop letting the Transgender Cult emotionally blackmail you,” referencing the veto of a Maine bill to protect gender-affirming healthcare, which the post dubbed the “Transgender Trafficking Bill.”[193] The second post exclaimed, “I kid you not but THIS IS A MAN. [teary eye emoji] [heart eye emoji] The most beautiful transgender I have ever seen so far my goodness. [giggling emoji]” above a video of actress Hunter Schafer posing for photographs.[194] The third post announced, “A woman was raped in jail by a man who decided to call himself ‘transgender’” above a video of an NBC New York report describing a pending lawsuit over the alleged incident.[195] The posts following these results portrayed similar themes.[196] In a never-ending scroll, X’s search algorithm offered up a degrading set of nouns that the adjective “transgender” could possibly describe—cult, imposter, rapist, or, perhaps more generously, a population in need of advocacy.

I ran this experiment after reading about Safiya Umoja Noble’s search for “black girls” on Google more than a decade earlier, which returned mostly racist pornography in the first page of results.[197] In Algorithms of Oppression, Noble demonstrates how Google’s search algorithm at the time reflected and amplified preexisting tropes of Black women as hypersexual, despite the company’s branding for its superior capacity to search for and rank web pages according to accuracy, utility, and relevance.[198] By examining the commercial imperatives underlying Google’s search results—to capture and predict user engagement for digital advertisers—Noble argued that “information assumed to be ‘fact’ (by virtue of its legitimation at the top of the information pile) exists because racism and sexism are profitable under our system of racialized capitalism.”[199] In response to negative publicity over this and similar incidents, Google routinely denied responsibility for the outcomes of its proprietary algorithms yet resolved to (and did) fix discrete issues once flagged by its users.[200] When I search for “black girls” in Google today, pornography no longer surfaces amongst the top results, yet the market incentives that produced those results in the first instance remain alive on the internet today.[201]

Perhaps it is unsurprising that X returned content that ridicules and sows fear about gender variance in response to a “transgender” search query, given its embrace of deregulation. The company has historically disavowed any content moderation policy, garnering it an early reputation as “the free speech wing of the free speech party” amongst social media companies.[202] Journalists have chronicled X’s far-right turn ever since Elon Musk—who often posts anti-LGBTQ+ content[203]—acquired the company, dissolved its Trust and Safety Council, and fired 80 percent of its Trust and Safety engineers.[204] Indeed, X posts linking LGBTQ+ people—and especially transgender people—to pedophilia increased 119 percent in the first four months after Musk’s acquisition.[205] The Center for Countering Digital Hate estimates that just five accounts driving that narrative receive more than 6.6 billion annual impressions and generate $6.4 million annually in advertising revenue.[206] A narrow interpretation of this trend may suggest a problem unique to X, indicating what can go wrong when social media companies fall under blatantly transphobic leadership or, more broadly, leadership that deprioritizes content moderation and user trust and safety.

But that interpretation is belied by what GLAAD describes as “extraordinary levels” of anti-transgender hatred and disinformation surging across social media, which have rendered “the entire sector . . . effectively unsafe for LGBTQ users.”[207] Transgender people experience the most online harassment of any marginalized group in the United States, and 45 percent of transgender people experienced severe online harassment—including physical threats, stalking, sexual harassment, doxing, and swatting—in the twelve months preceding a 2024 survey.[208] Media Matters for America reports that TikTok’s recommendation algorithm has promoted anti-transgender violence.[209] Similarly, GLAAD has recorded content on Facebook and Instagram that characterizes gender-variant people as “demonic,” “terrorists,” “mentally ill,” and “perverts,” all before their owner, Meta (formerly Facebook), amended its “Hateful Conduct” policy to explicitly permit “allegations of mental illness or abnormality when based on gender or sexual orientation.”[210] Researchers have also documented how Google’s artificial intelligence (AI) chat technology has urged users to “give conversion therapy a chance” and stated, “Trans groomers are a threat to children because they are trying to turn them into transgender people.”[211]

Unlike on X, my searches for “transgender” on websites like YouTube, Facebook, Google, and Reddit returned more diverse representations of gender variance. However, each prominently featured content portraying transgender people as novel, fraudulent, predatory, pornographic, pedophilic, narcissistic, criminal, or reduced to genitalia.[212] The first search result on YouTube, for example, was a sponsored documentary trailer featuring dramatizations of people who detransition; further down the search results was an NBC News video headlined, “Survey finds transgender people are more satisfied in life after transitioning” and another video claiming to expose “Proof Transgender Women Are Disgustingly Narcissistic.”[213] My search on Facebook returned a “Beautiful Transgender Girls” group as its top result; others included profiles of transgender advocacy organizations and a Breitbart post about a “transgender Kentucky daycare worker accused of sexually abusing an infant.”[214] Google mostly returned links to LGBTQ+ advocacy and medical organization websites but featured “Top stories” sensationalizing narratives of people who regret transitioning and suggested new searches for “transgender body parts,” “transgender body parts pictures,” and “transgender woman organ.”[215] In short, X is certainly not unique in featuring degrading and inflammatory content about gender variance.

Nor is X unique in profiteering from this content, as anti-LGBTQ+ hatred now provides a revenue stream for many internet and media companies.[216] On YouTube, at least 125 household brands like Nike, L’Oréal, and BMW have advertised alongside monetized videos that promote hatred or violence against LGBTQ+ people.[217] Meta hosted at least 558 anti-transgender advertisements by The Daily Wire between 2018 and 2023, which garnered over 172 million views and cost more than $5.7 million.[218] One Facebook and Instagram advertisement—which ran for nearly one year, appeared at least 3.93 million times, and cost approximately $30,000—announced that “public schools covered up the rape of a fourteen-year-old girl at the hands of a boy wearing a skirt,” described “the transgender stuff” as “just demonic,” and purported to have “exposed Vanderbilt’s child mutilation practices.”[219] Political candidates and their supporters spent at least $50 million in the 2022 midterm elections on advertisements containing disinformation about LGBTQ+ people that appeared on YouTube and X,[220] and Republicans spent nearly $215 million on anti-transgender advertisements in the 2024 election.[221] President Trump’s 2024 presidential campaign spent nearly 20 percent of its overall advertising budget on attacking transgender people.[222] These expenditures underscore the Southern Poverty Law Center’s (SPLC) reporting on a network of over sixty anti-LGBTQ+ groups that “have built a political and PR machine that twists data and opinion from a very small minority of the medical community and positions it as mainstream.”[223]

This Part proposes a broader interpretation of these trends to account for why dehumanizing representations of gender variance surface as “top” content in response to a neutral “transgender” search query. Following Noble’s thesis that oppression is baked into Google’s business model and, by extension, its search algorithms, I argue that rampant hate speech and disinformation about gender variance online is a problem that runs much deeper than transphobic company mismanagement or rogue content moderation policies. As I discuss in Part V, these framings beget myopic solutions because they conflate symptoms with their root cause. Instead, I argue that privatization of the internet under a regime of surveillance capitalism, which Zuboff defines as “a new economic order that claims human experience as free raw material for hidden commercial practices of extraction, prediction, and sales,” incentivizes internet companies to proliferate false and hateful content about gender-variant people.[224]

The imperative to capture user engagement has turned the internet into a modern freak show, wherein gender-variant people—who have already been demonized by nineteenth- and twentieth-century cross-dressing laws—are a featured exhibit. In this context, discourse about transgender and nonbinary people is dislodged from their lived experiences and refracted through the hovers, clicks, comments, reactions, and shares that drive algorithmic behavioral predictions and modifications designed to maximize advertising revenue. In a country where most people do not know (or realize that they know) any gender-variant people, social media fills the knowledge gap with salacious and contemptible representations of gender variance that keep users engaged, gleeful, or enraged.[225] As manufactured certainty about who we are, what we know, where we click, and how we vote consolidates political and commercial power, the two conspire to feature gender variance as society’s bug, an aberration that captures enduring fascination and vitriol but refuses to be squashed out.[226]

A.      Privatization and Deregulation of the Internet

The internet is highly privatized, but it did not start out that way. In fact, “the absence of the profit motive and the presence of public management . . . made the invention of the internet possible” because the government could “afford to take risks that the private sector” could not.[227] However, the lack of private investment in the creation of the internet does not suggest that it was designed to democratize power, either. Ben Tarnoff traces the internet’s origins to military experiments in the 1970s, situating it within a lineage of connectivity technologies developed to expand and maintain empire.[228] The transatlantic fiber-optic cables that comprise the physical infrastructure of the internet trace telegraph networks that were “essential for capitalist expansion and globalization” in the twentieth century, which themselves “shadowed the sea routes pioneered in previous centuries, routes that sped the circulation of cotton, silver, spices, settlers, and [enslaved people].”[229] This history reminds us that “[c]onnectivity is never neutral. The growth of networks was guided by a desire for power . . . .”[230]

Today, commercial empires own the internet. A handful of corporations have “programmed the profit motive into every level of the network,” from access to activity.[231] In 2018, just four internet service providers (ISPs)—Comcast, Charter, AT&T, and Verizon—sold more than 76 percent of all internet subscriptions,[232] and six companies—Google, Netflix, Meta, Microsoft, Apple, and Amazon—generated more than 56 percent of internet traffic and approximately $1.4 trillion in revenue in 2021.[233]

Such staggering concentrations of wealth and power are facilitated by symbiotic processes of privatization and deregulation.[234] The Federal Communications Commission’s decision to exempt ISPs from common carrier regulations under the Telecommunications Act of 1996, affirmed by the Supreme Court in 2005, was a key turning point.[235] By avoiding rules that prohibit service providers from discriminating against users of their infrastructure, corporate ISPs were able to “manipulate the flow of data through their pipes” to kill competition from cooperatively-owned ISPs and privilege an oligopoly of content providers.[236] This paved the way for private companies to consolidate ownership and control over online content, all on networks developed through billions of dollars of public investment.[237] Moreover, one portion of Title V of the Telecommunications Act (Section 230) shields ISPs and “platforms” alike from liability for content that they host, regardless of whether they endeavor to moderate it.[238] Widely regarded as the law that “created the modern Internet,”[239] Section 230 is perhaps better understood as a law that has permitted unfettered surveillance capitalism to flourish, with particularly devastating consequences for gender-variant people.[240]

B.      Surveillance Capitalism

Although most cross-dressing laws were repealed or overturned by the end of the twentieth century, the anti-transgender culture they produced abounds in the twenty-first century on the commercialized internet.[241] This problem is entrenched in surveillance capitalism, a recent evolution of capitalism that relies on the covert harvesting of personal data to forecast and manipulate human behavior, fostering staggering concentrations of wealth, knowledge, and power.[242]

Google pioneered surveillance capitalism in the aftermath of the 2000 dot-com bust under threat of divestment.[243] Mounting pressure to demonstrate the profitability of its novel search technology drove the company to pivot toward a new monetization scheme: selling predictions of human behavior to digital advertisers. Google’s key discovery was that “behavioral signals embedded in the ‘data exhaust’ left over from users’ search and browse activities” could be computed to forecast the likelihood that users would click on advertisements, also known as the “click-through rate.”[244] With this innovation, Google launched its targeted advertising business to satisfy advertisers’ demands for more clicks, “advising them where and when to place their bets.”[245] At scale, even minuscule improvements in prediction algorithms are profoundly lucrative. Research by Microsoft, for example, found that just “0.1% of [click-through rate] accuracy improvement would yield greater earnings in the hundreds of millions of dollars.”[246] By the time Google went public in 2004, surveillance economies had increased the company’s revenue by 3,590 percent.[247]

While Google developed surveillance capitalism’s foundational logic, Meta maximized its data extraction operations to better forecast and eventually modify human behavior. Data became the company’s “organizing principle and essential ingredient.”[248] In a 2016 blog post, Meta described its “AI backbone” that “ingests trillions of data points every day, trains thousands of models — either offline or in real time — and then deploys them to the server fleet for live predictions.”[249] But this operation has not stopped at prediction, nor has it remained confined to the commercial sphere.[250]

In time, Meta engineers discovered “techniques of tuning, herding, and conditioning” behavior at scale, such as by “inserting a specific phrase into your Facebook news feed,” to coax digital advertising hits, drive foot traffic at brick-and-mortar stores, and even prompt political action.[251] Zuboff explains, “As digital signals monitor and track a person’s daily activities, the company gradually masters the schedule of reinforcements—rewards, recognition, or praise that can reliably produce the specific user behaviors that the company selects for dominance.”[252] Through a series of social experiments showing that Facebook could produce “real-world voting behaviour of millions of people”[253] and the public revelation that Cambridge Analytica used data from as many as eighty-seven million Facebook users to manipulate swing voters in the 2016 election, Meta eventually demonstrated how the machinery of surveillance capitalism moves frictionlessly from “commercial markets in behavioral futures toward guaranteed outcomes in the political sphere.”[254] This application of behavioral data continued unabated through 2024, when political advisers to Musk orchestrated a $45 million digital advertising campaign aimed at misleading voters based on their demographic profiles to suppress turnout for Kamala Harris.[255]

Behavioral data that are scraped from our online lives (and, increasingly, our offline lives that are mediated by “smart” machines[256]) are the foundational raw materials driving surveillance capitalism, which is now “the default economic model in the tech sector.”[257] While some data are legitimately used to improve a product or service, “the rest are declared as a proprietary behavioral surplus, fed into advanced manufacturing processes known as ‘machine intelligence,’ and fabricated into prediction products that anticipate what you will do now, soon, and later.”[258]

Internet companies reap unprecedented profits precisely because they are permitted to commodify the once-private details of our lives—what we search for, browse, purchase, eat, read, say, feel, think, and do—in order to perfect their behavioral prediction and modification products.[259] As Google’s co-founder Larry Page ordained in 2001, “Your whole life will be searchable.”[260] In that sense, surveillance capitalists follow the playbook of earlier capitalist developments “by taking things that live outside the market sphere and declaring their new life as market commodities,” including the commodification of work into “labor,” nature into “land,” and exchange into “money,” all of which can be bought and sold on the free market.[261] As Zuboff explains, surveillance capitalists

have declared a fourth fictional commodity expropriated from the experiential realities of human beings whose bodies, thoughts, and feelings are as virgin and blameless as nature’s once-plentiful meadows and forests before they fell to the market dynamic. In this new logic, human experience is subjugated to surveillance capitalism’s market mechanisms and reborn as “behavior.” These behaviors are rendered into data, ready to take their place in a numberless queue that feeds the machines for fabrication into predictions and eventual exchange in the new behavioral futures markets.[262]

In an advertising-based digital economy where behavioral data are the prized new commodity class, maximizing user engagement has become the prime directive of social and news media alike.[263]

C.      The Engagement Imperative

In their quest for advertising revenue, internet companies algorithmically amplify hateful, polarizing, and false content because it generates the most engagement.[264] Content that engages more users for longer benefits “both data extraction and targeted advertising, driving commercial success.”[265] As Tarnoff explains, “The more data that can be made about someone, the more ‘targeted’ the ads can become; the longer that person spends on the site or app, the more ads can be served.”[266]

Under what I call the “engagement imperative,” all other metrics for evaluating content—such as reliability, emotional impact, or propensity to drive polarization and violence—are subordinated to metrics of virality and attention.[267] Meta executive Andrew Bosworth described this logic in a 2016 company memo when he stated that “anything that allows us to connect more people more often is *de facto* good,” no matter if “it costs a life by exposing someone to bullies” or causes someone to “die[] in a terrorist attack.”[268] Similarly, TikTok has described how its “algorithm and shorter video formats create continuous cycles of engagement,”[269] which can cause “compulsive usage.”[270] For many “users,” the engagement imperative breeds clinical addiction.[271] In an online milieu characterized by information overload, attention is “an extremely valuable resource,” and when engagement is the primary goal, false and “outrage-provoking content is among the best performing.”[272]

Independent research, testimony from former executives, and corporate documents make it abundantly clear that many internet companies intentionally design “platforms” to proliferate hatred and disinformation to satisfy the engagement imperative. One researcher describes Facebook’s “news” feed and YouTube’s recommendations algorithm as “hate-inducing architectures” that are “planned, prototyped, and developed.”[273] Tim Kendall, the former Director of Monetization at Meta, has testified that the company “sought to mine as much human attention as possible and turn [sic] into historically unpreceden ted [sic] profits” by allowing “misinformation, conspiracy theories, and fake news to flourish.”[274] According to Kendall, social media “maximizes your attention by hitting you repeatedly with content that triggers your strongest emotions— it aims to provoke, shock, and enrage.”[275] In internal Meta documents disclosed to the Securities and Exchange Commission, the company stated, “We have evidence from a variety of sources that hate speech, divisive political speech, and misinformation on Facebook and the family of apps are affecting societies around the world,” including “compelling evidence that our core product mechanics, such as virality, recommendations, and optimizing for engagement, are a significant part of why these types of speech flourish.”[276]

Politically conservative and especially far-right media are also the most likely to drive digital engagement.[277] In a study of Facebook posts promoted as news during the 2020 election cycle, New York University researchers found that “politically extreme sources tend to generate more interactions from users.”[278] They then reported that “sources rated as far-right by independent news rating services consistently received the highest engagement per follower of any partisan group. Additionally, frequent purveyors of far-right misinformation had on average 65% more engagement per follower than other far-right pages.”[279]

Since conservatives have called for the eradication of gender variance “from public life entirely,” it is unsurprising that right-leaning sources that are rife with hatred and disinformation dominate the field of digital media about gender variance.[280] A study of content on transgender topics that earned 100,000 or more Facebook interactions during a one-year period between 2019 and 2020, for example, found that right-leaning sources, including those that “frequently misgendered trans athletes” and “falsely portrayed best-practice [gender-affirming] medical care as dangerous,” garnered 43.33 million, or 65.7 percent, of 66 million total interactions.[281] LGBTQ+ outlets, by contrast, garnered only 15.4 percent.[282] Similarly, seventy-three of the one hundred most popular Facebook posts about transgender people in sports in the first half of 2021 came from politically-right sources.[283] Researchers characterized these posts as “overwhelmingly negative.”[284]

The engagement imperative explains why hate speech and disinformation about gender variance are proliferating online. By deputizing public attention to disparage, marginalize, and sensationalize gender-variant people, the engagement imperative extends the logics of nineteenth- and twentieth-century cross-dressing laws and exploits the cultural anxieties that they incited.

But we should be careful not to conceptualize the latest assaults as merely reflecting preexisting animus toward gender variance. That mistake parallels the trap of regarding contemporary gender categories as natural or inevitable rather than as historically contingent constructions, which cross-dressing laws helped produce rather than describe.[285] Similarly, internet companies “are not merely holding up a mirror that reflects society’s existing state of divisiveness and polarization.”[286] Rather, they “actively pull[] users toward extremism and hate, creating new trends, new communities, and new harms.”[287] In their pursuit of surveillance revenues, internet companies are reengaging the logics of nineteenth- and twentieth-century cross-dressing laws in ways that produce new fears and hatred for gender-variant people.

D.     Digital Spectacles of Gender Variance

In the era of artificial intelligence, search engines, social media, and the machines that mediate our lives are breathtakingly smart. They learn from the humans that use them, but only according to the math of their makers.[288] “The search engine[,]” for example, “examines the contents of websites and the relationships among them, while a set of feedback loops enables the system to ‘learn’ from the behavior of those who use it.”[289] On social media, content algorithms direct hate speech and disinformation “at just the people who are most vulnerable to these messages.”[290] As Benjamin has chronicled in the context of anti-Blackness, “[T]he raw data that robots are using to learn and make decisions about the world reflect deeply ingrained cultural prejudices and structural hierarchies.”[291]

With respect to gender variance, the cultural prejudices and structural hierarchies that condition how robots capture user engagement originate in cross-dressing laws. “Smart” technologies are those that learn to engage salacious, degrading, and shocking representations of gender variance because cross-dressing laws have programmed these representations to command our attention.[292] Digital surveillance technologies—deployed to look for and look at human beings—are particularly well suited to amplify this effect.[293] Both cross-dressing laws and surveillance capitalism were initiated by white merchants seeking profit, and both have claimed new authority over what was once private, unseen, or unknown.[294]

By training the body politic on the price of gender variance, cross-dressing laws naturalized cisgender people as ubiquitous and gender-variant people as aberrant.[295] Contemporary statistics indicating that transgender and nonbinary people are super-minorities in the United States—less than 2 percent of the population—are evidence of the success of this project, as are statistics that over half of adults in the United States do not know any gender-variant people.[296] Surely, anti-transgender campaigns “exploit this underlying knowledge deficit about transgender people” when they produce false and inflammatory content about gender variance, as SPLC and others have documented.[297] But so too do the algorithms that proliferate this content, propelled only by the engagement imperative and without any transphobic intent. Under this scheme, digital representations of gender variance are increasingly, algorithmically dehumanized, as the flesh-and-blood humans they purport to represent have been systematically disappeared for centuries.

In the twenty-first century, real-life erasure and digital spectacles of gender variance are two sides of the same coin. As Benjamin notes, “[D]omination and surveillance typically go hand in hand with ‘the pleasure of looking.’ . . . The desire to see others in a derogatory or in an exotic light, just as much as the practice of invisibilizing them, reproduces long-standing forms of authority and hierarchy.”[298] Internet companies capitalize on this indulgence. When the people they caricature are, for most users, nowhere to be found offline, reproducing authority and hierarchy is big business. “As we click and click, we are carried along by the exciting sensation of uncovering more secrets and deeper truths. YouTube leads viewers down a rabbit hole of extremism, while Google racks up the ad sales.”[299] Just as cross-dressing laws invited new scrutiny of gender variance to uncover the deeper “truth” of sexed bodies underneath clothing, internet companies reinvigorate spectacles of gender variance that promise to unveil “deeper truths” about transgender and nonbinary people, despite most users knowing little or nothing about them.[300]

Toby Beauchamp argues that “surveillance is a central practice through which the category of transgender is produced, regulated, and contested” because it creates “the very categories and figures of gendered deviance that [it] purport[s] to simply identify.”[301] This insight on the power of surveillance—to make gender anomalies by looking for them—is key to deciphering what, exactly, internet companies are paying attention to when they command attention from us. By fixing our fear and outrage upon digital spectacles of gender variance, their machines intensify the imperative to conform to gender norms. Perhaps they have learned that when we are under this spell, the interiorities of our lives—the intimate details that make us uniquely ourselves—are most ripe for harvest.

*          *          *

When the public sphere has been made gender normative under law, the private sphere enjoys free license to capture gender variance for profit. Regimes of looking for and looking at bodies, developed under cross-dressing laws to surveil and root out gender anomalies, have flourished in surveillance economies that value attention as a means of predicting and directing where users will look, click, and shop next. Without incentives of safety or privacy to intervene, internet companies have transposed the spectacle of gender variance from the freak show stage to clickbait in a move that has had devastating consequences for gender-variant and cisgender people alike.

IV. The Costs of Spectacle

You should pay attention to what happens to us. You’re next.

—Anonymous[302]

False and hateful content about gender variance online has corrupted mainstream reporting on gender-variant people, escalated threats and violence against them, and generated political will to impose sweeping gender regulations across nearly every domain of public life. These outcomes have been devastating—often deadly—for gender-variant people, underscoring the urgent need to regulate surveillance capitalism’s predatory grip on our attention and relentless expropriation of our private lives.

But cisgender people are not unaffected by these consequences. As Alok Vaid-Menon observes, cultural animus toward gender variance, and its underlying rhetorical and physical violence, reflects a deeper cultural crisis of self-imprisonment and shame.[303] By living boldly and unapologetically as themselves in a society that hunts them, gender-variant people embody a life of freedom and authenticity that many cisgender people have foreclosed for themselves. In this light, the orchestrated efforts to vilify, harass, and regulate gender-variant people out of existence may be understood as expressions of cisgender mourning for having felt compelled to clip their own wings.[304] Regulating the internet to deregulate gender variance seeks to ensure everyone’s right to find sanctuary within themselves and to transform, as all beings do, on their own terms. Left unremedied, these costs diminish us all.

A.      Corruption of Mainstream News

The economic imperatives of surveillance capitalism have fundamentally reshaped mainstream news. In an era when internet companies control the dissemination of information, priorities of engagement and data harvesting have supplanted traditional journalistic principles of accountability and factual integrity. For gender-variant people, this “corrupted information hellscape” has normalized the notion that their very personhood is up for debate, obscuring “the fact that fundamental human rights are under attack.”[305]

In the United States, more than 70 percent of adults consume news from social media.[306] Tobias Rose-Stockwell notes that “[s]ocial media became the dominant driver of traffic to news sites globally . . . [at] the same time the bottom dropped out of the newspaper business.”[307] “Facing double-digit declines in readership, viewership, and print revenue,” many mainstream publications have adopted the economic logic of internet companies that they rely on to stay in business.[308] In 2017, for example, researchers found that news websites had the most embedded trackers of any industry that they studied, likely as a result of “the need for ad revenue.”[309]

Now, real-time virality analytics pressure journalists “to modify their content for the express purpose[] of increasing advertising traffic,” which incentivizes “low-quality but high-performing posts over high-quality journalism.”[310] Indeed, “[m]any news sites aren’t about news; they’re about tricking us into clicking on autoplaying ads and advertorials that eat up the bottom half of nearly every site.”[311] And in order to “out-compete [their] competitors for subscribers, for eyeballs, and for attention,” mainstream news outlets rely on “sensational headlines” that keep their readers “perpetually afraid.”[312] As the engagement imperative has metastasized across information and communication sectors, mainstream news has turned to false and inflammatory reporting about gender variance to drive virality and attention.

During the 2024 Olympics, for example, The Boston Globe falsely reported that Algerian boxing gold-medalist Imane Khelif was transgender after she endured a transphobic cyberbullying campaign, despite being assigned female at birth and competing as a woman her entire life.[313] The paper later corrected the error and apologized to Khelif, who filed a criminal harassment complaint against X.[314] In her complaint, Khelif referenced X posts by white merchants and politicians like Musk, J.K. Rowling, and President Trump, who repeated the lie to justify his executive order attempting to ban gender-variant people from athletics.[315]

The New York Times provides another example. In early 2023, more than one thousand Times contributors publicly raised concern for “editorial bias in the newspaper’s reporting on transgender, non-binary, and gender nonconforming people,” including by devoting “over 15,000 words of front⁠-⁠page Times coverage debating the propriety of medical care for trans children.”[316] Simone Unwalla has chronicled how the Times has amplified anti-transgender rhetoric to instigate moral panic and ensure more “clicks, profit, and an increasingly captive audience.”[317] TransLash has also documented “anti-trans disinformation deeply embedded in” the Times’s coverage of transgender issues that is “almost imperceptible, unlike the overt anti-trans propaganda in the right-wing media.”[318] That investigation revealed that “all of the adequate coverage of trans people is relegated to the style and culture sections of the paper. This sends the message that trans people exist for entertainment, and that trans humanity is not deemed important by the paper of record.”[319]

One consequence of this corruption is evidenced by what Chase Strangio has described as “a direct pipeline” from the Times to legal defenses of anti-transgender laws in court.[320] Myriad state attorneys general, for example, have referenced sensationalized and inaccurate Times coverage to argue that prohibitions on gender-affirming healthcare should be upheld.[321] The Attorney General of Idaho cited a Times article as authority for the “ostracism, pain, and lifelong regret” of adults who detransition in a brief before the United States Court of Appeals for the Ninth Circuit, just four days after the article’s publication.[322] Missing from both the article and the brief is context for the “remarkably low” rates of regret for gender-affirming surgeries (less than 1 percent)[323] as compared to, for example, regret for knee replacements (17.1 percent),[324] gastric band surgeries (19.5 percent),[325] plastic surgeries (0 to 47.1 percent),[326] surgeries in general (14.4 percent),[327] tattoos (16.2 percent),[328] marriage (23 to 31 percent),[329] divorce (27 to 32 percent),[330] or having children (7 to 13 percent).[331] As the Times contributors succinctly stated, the “natural destination of [the paper’s] poor editorial judgment is the court of law.”[332]

B.      Escalation of Threats and Violence

Threats and violence against gender-variant people are also rising sharply because of the hate speech and disinformation that internet companies amplify to satisfy the engagement imperative.

Anti-LGBTQ+ acts of political violence more than tripled between 2021 and 2022, and anti-LGBTQ+ demonstrations more than doubled in the same period.[333] The Federal Bureau of Investigation has reported that hate crimes related to gender identity jumped 32.9 percent from 2021 to 2022, and more than one in five hate crimes is now motivated by anti-LGBTQ+ bias.[334] A 2021 study also found that transgender people face four times the rate of violence as cisgender people.[335] In 2023, 28 percent of transgender and nonbinary youth reported experiencing physical threats or harm in the past year because of their gender identities.[336]

Researchers, journalists, and advocacy groups have documented a strong nexus between online hatred and disinformation and surging threats and violence against gender-variant people and their communities.[337] Media Matters for America has reported forty-eight threats or instances of harassment—including twenty-four bomb threats—against schools, hospitals, libraries, businesses, and elected officials after the X account “Libs of TikTok” targeted them with anti-LGBTQ+ disinformation.[338] As of March 2025, that account had 4.3 million followers.[339] In a school that a teacher resigned from after Libs of TikTok targeted them for supporting gender-variant students, three students attacked a sixteen-year-old nonbinary student who died by suicide the next day.[340] The Club Q shooter was reportedly a victim and perpetrator of online anti-LGBTQ+ hatred.[341] And Alejandra L. Caraballo, a clinical instructor at Harvard Law School who researches online hate speech and disinformation about gender-variant people, has endured threats of being tied to a post and set on fire because she publicly engages in this work as a transgender woman.[342]

Many describe the real-world violence that flows from online hatred and disinformation as “stochastic” because this content increases the statistical likelihood of violence, even if isolated instances are difficult to predict.[343] Chaya Raichik, who runs Libs of TikTok, has self-identified as a “stochastic terrorist,”[344] and perpetrators of mass shootings in Charleston, Charlottesville, Pittsburgh, Poway, El Paso, and Buffalo were all fanaticized on the internet.[345] This includes Dylann Roof, who murdered nine Black people in 2015 and has traced his hatred for his victims to a Google search he conducted that directed him to a white supremacist website.[346]

By driving violence and threats of violence, online hatred and disinformation have also shut down LGBTQ+ community events, forced school closures, and disrupted life-saving gender-affirming healthcare.[347] Human Rights Campaign has documented this trend in the healthcare context, whereby (1) prominent social media accounts like Libs of TikTok post inflammatory and false content targeting specific providers; (2) providers’ social media accounts are inundated with threatening and harassing messages, sometimes within minutes; (3) providers endure threats over the phone, email, and in-person; (4) politicians introduce bans on gender-affirming healthcare; and (5) providers halt gender-affirming healthcare and remove information about it from their websites.[348] In 2022, the American Academy of Pediatrics, the American Medical Association, and the Children’s Hospital Association urged the Department of Justice to “investigate the organizations, individuals, and entities coordinating, provoking, and carrying out” threats against gender-affirming healthcare providers that have caused widespread care disruptions across the country and are “rooted in an intentional campaign of disinformation . . . on social media.”[349]

C.      Political Will to Regulate Gender Variance

The cycle of anti-transgender disinformation, violence, and regulations not only benefits surveillance capitalists, but it also benefits politicians who represent themselves as moral guardians, much like the architects of nineteenth- and twentieth-century cross-dressing laws. By framing gender variance as an exigent threat, politicians deflect attention from the structural inequalities that cause their constituents’ suffering.[350] Under surveillance capitalism, the internet accelerates this sense of urgency by manufacturing political will for resurgent gender regulations within a body politic that is already primed for fear and suspicion. Ironically, surveillance capitalism accelerates the economic inequality that disenfranchises voters in the first place by consolidating wealth, knowledge, and power.[351] Online hatred and disinformation thus scapegoats gender-variant people for social insecurity that the internet has exacerbated, which helps legitimate ever-deeper incursions upon our intimate lives.

Politicians seeking to outlaw gender variance enjoy a symbiotic relationship with internet companies and their billionaire owners. For example, the world’s three wealthiest men—all white internet tycoons—enjoyed a front-row seat to President Trump’s second inauguration,[352] where he announced the “official policy of the United States government that there are only two genders: male and female.”[353]

In this exchange, politicians get “a megaphone for their ideas,” while internet companies get “lots of high-engagement users whose attention can be sold to advertisers.”[354] Because most users have no personal relationships with gender-variant people to buffer noise from the megaphone, “[m]isinformation—or, more specifically, disinformation—about trans topics has become the defining feature of public discourse on transgender rights.”[355] Mis- and disinformed discourse, in turn, amplifies political will to outlaw gender variance under sweeping regulations targeting healthcare, bathrooms, sports, identity documents, schools, workplaces, public performances, adoption, foster care, prisons, the military, and civil rights in what one researcher has dubbed a “Misinformation – Legislation Pipeline.”[356]

This pipeline is facilitated by activists, think tanks, and politicians who exploit the engagement imperative and online “echo chambers” to pump hateful ideology into mainstream political discourse.[357] A study of millions of Facebook and X posts from news accounts and politicians found that “out-group language is the strongest predictor of social media engagement across all relevant predictors measured, suggesting that social media may be creating perverse incentives for content expressing out-group animosity.”[358] Google researchers have concluded that feedback loops in recommendation algorithms “narrow a user’s content exposure, and ultimately shift their world view.”[359] In 2016, a Meta researcher noted that, “64% of all extremist group joins are due to our recommendation tools.”[360] Rose-Stockwell also notes that “[s]ocial media creates artificially close proximity to more morally charged opinions than we ever encountered offline, exposing us to opinion cascades that begin to shape our outlook on a broader range of topics.”[361]

By strategically engaging these features of the commercialized internet, well-funded, anti-transgender “media manipulators” have popularized the sentiment that gender variance is a lethal and imminent threat to children, for which sweeping regulations are the only remedy.[362] For example, in 2020, 4chan users deployed “Operation Pridefall” to target Facebook, X, TikTok, Instagram, and dating applications with fake accounts and AI-generated or decontextualized images that would “gradually turn the tide of opinion against queer people” by associating them with degeneracy and pedophilia.[363] In March 2022, the press secretary for Florida Governor Ron DeSantis picked up on that association by rebranding the state’s so-called Parental Rights in Education Act—which restricts classroom discussions on sexual orientation and gender identity in public schools—as the “Anti-Grooming Bill” on X, just days before it passed.[364] This marked “a key inflection point” in the proliferation of online content linking the LGBTQ+ community to pedophilia, as the volume of X posts engaging that narrative increased by 406 percent in the month after the bill passed.[365] The titles and texts of many recent anti-transgender bills—and the rhetoric politicians use to promote them—also contain terms like “biological male” and “biological female” that first developed on the internet to sow fear about gender-variant people.[366]

States may soon turn back to internet companies and their surveillance technologies to enforce these laws as they take effect. Geolocation tracking, text communications, health application data, facial recognition, student spyware, surveillance footage, and search and browse histories, for example, all “have clear applications for police investigations around gender-affirming care,” and prosecutors have used digital surveillance data to prosecute people under similar abortion bans.[367] Florida, Tennessee, Alabama, Missouri, and Texas have subpoenaed medical records of transgender patients, and sports organizations now routinely test athletes’ hormone levels to “verify” their sex.[368] Technologies that monitor students’ online activities are also already outing LGBTQ+ students and subjecting them to higher rates of discipline and reporting to law enforcement.[369] In 2015, the Department of Commerce reported that “[g]ender-targeted surveillance can assist with monitoring gender-restricted areas,” like women’s restrooms, by alerting operators “when a male is detected in view.”[370] According to the report, this technology can help thwart “suspicious or threatening activity.”[371]

*          *         *

Change is certainly in order, but the unprecedented power that internet companies have to shape this country’s consciousness and treatment of gender-variant people is perhaps an invitation for optimism rather than despair. In Part V, I propose a regulation that would help liberate the internet from corporate capture and reign in unfettered profiteering from false and dehumanizing representations of gender-variant people. While this intervention would not neutralize the tidal wave of anti-transgender regulations overnight, it may do a great deal to disincentivize the spread of hate speech and disinformation about gender variance online. In turn, it would help subvert the logics of centuries-old cross-dressing laws, cultivate a culture that embraces gender diversity, and, eventually, render legal mandates to conform to one of two gender categories unimaginable and obsolete.

V. Abolishing Data Harvesting to Deregulate Gender Variance

[T]o remake the internet, we will have to remake everything else.

—Ben Tarnoff[372]

Gender-variant people are not the only people seeking transformation. Recent polling suggests that the overwhelming majority of people in the United States are concerned with surveillance capitalism and favor reining it in. A 2021 survey found that 71 percent of registered voters support stronger regulations of social media companies, 81 percent support banning them from collecting and using personal data to target users with advertisements, and 84 percent support banning them from artificially boosting extreme content.[373] Another 2021 poll found that 88 percent of registered voters agree that technology companies should be required to ask users whether or not they can use their data.[374] And in 2023, 55 percent of people in the United States favored federal government action to restrict false information online, even if such action limits freedom of information.[375]

The following Section examines why two prominent strategies for mitigating the flow of hatred and disinformation online—content moderation and expanding internet companies’ liability for unlawful content—cannot solve this problem, at least with respect to gender variance. These “downstream” approaches leave the engagement imperative and surveillance revenues intact and could threaten gender-variant expression rather than protect it.[376] The more enduring solution—abolishing the commercial harvesting of behavioral data—lies “upstream, where this river originates.”[377]

A.      The Problems with Downstream Reforms

Strategies like bolstering internet companies’ content moderation efforts or expanding their liability for unlawful content cannot address the root cause of hate speech and disinformation about gender variance online. Surveillance capitalism’s profound asymmetries of knowledge, wealth, and power overwhelm the effectiveness of these “post-catastrophe” reforms, especially for people whose self-expression is coded as criminal, aberrant, or spectacle under the legacy of cross-dressing laws.[378]

1.       Content Moderation

Some scholars argue that the digital advertising market naturally incentivizes internet companies to self-moderate because advertisers do not want to associate with harmful content or attract negative publicity.[379] But the market will not solve problems that are not, in fact, problems for the market.[380]

Under surveillance capitalism, the engagement imperative overrides values like safety, equity, or democracy, and internet companies are only willing to expend resources on “labeling, warning, fact checking, slowdowns, takedowns, or suspensions” when that investment either benefits their bottom lines or helps discourage regulatory oversight.[381] As GLAAD explains, internet companies have an “inherent conflict of interest when it comes to enforcing (or not enforcing) their hate speech policies” because “[t]he decision to allow anti-LGBTQ hate on their platforms not only benefits the grifters and bigots who post it, it also benefits the companies themselves.”[382] Put differently, brand safety trumps user safety on the commercialized internet, and, as a boycott against Bud Light for its partnership with a transgender influencer illuminates, the two can be mutually exclusive for gender-variant people.[383] Sharp declines in X’s revenue over advertisers’ “unease” with its content moderation policies, for example, have not curtailed hate speech and disinformation about gender variance that abound on that site.[384]

Moreover, internet companies already have explicit policies prohibiting hateful content, but these policies are aspirational at best, if not entirely performative. Meta, for example, purports not to allow “[h]ate speech against the LGBTQ+ community,” including “harmful stereotypes — defined . . . as dehumanizing comparisons that have historically been used to attack, intimidate or exclude specific groups — which can lead to offline violence.”[385] X claims to “prohibit the dehumanization of a group of people based on their . . . gender, gender identity, or sexual orientation.”[386] And YouTube says that it does not “allow content that promotes violence or hatred against individuals or groups based on . . . Gender Identity and Expression.”[387] In light of all the harmful stereotypes, dehumanizing representations, and hateful content about gender variance that these companies feature and amplify, such policies script a “cynical theater of self-regulation” that distracts users and government regulators from a business model that requires user engagement at any cost—so long as the cost is not borne by the companies themselves or their advertiser clients.[388]

For example, internet companies have built tools that allow advertisers, not users, to filter hate speech in ways that protect the advertisers’ brands without disturbing surveillance revenues. In March 2023, Meta released a tool that allows advertisers to control whether their advertisements are displayed near “sensitive content,” and X and YouTube have implemented similar “brand safety” measures “[p]owered by cutting-edge, machine learning technology.”[389] These innovations demonstrate that internet companies have the capacity and resources to provide users with protective filters—or simply to enforce their hate speech policies sitewide—but instead invest in technical workarounds for any market incentive that would curtail the spread of this content. By allowing advertisers to opt out of associating with hate speech while otherwise permitting this speech to continue driving “data-rich” user engagement in violation of their policies, internet companies have their cake and eat it too, even as they profess not to eat sugar.[390]

On the other hand, overmoderation can be as much of a problem as undermoderation for gender-variant people. Just as historic cross-dressing laws enforced gender normativity by punishing and removing gender-variant expression from public, internet companies enforce gender normativity in our digital-era public squares through “wrongful takedowns of LGBTQ accounts and creators, mis-labeling of LGBTQ content as ‘adult,’ unwarranted demonetization of LGBTQ material under such policies, shadowbanning[,] and similar suppression of LGBTQ content.”[391] The Brennan Center for Justice reports that content moderation policies are “often imprecise and broad when applied against marginalized communities, yet narrowly drafted and interpreted when [they] concern[] dominant groups. This disparity sets the groundwork for an online ecosystem that reinforces existing power dynamics, leaving marginalized communities simultaneously at risk of removal and over-exposed to a number of harms.”[392] Those harms are amplified by expansive gender regulations, the scrubbing of information about gender variance on government websites, and bans on books with transgender characters and themes in public schools.[393]

Since content moderation has historically been a vehicle for censoring gender variance, it is unlikely that internet companies will voluntarily begin moderating to protect gender variance unless the underlying market imperative to capture user engagement is disturbed. That is especially so in light of recent rollbacks of content moderation programs by internet companies in the wake of President Trump’s election[394] and recent laws prohibiting content moderation in Texas and Florida, states that have—perhaps not coincidentally—also enacted some of the most restrictive anti-transgender policies.[395]

2.       Expanding Liability

Advocates also argue for reforms to Section 230, either through judicial interpretation or legislative amendment, that would expand internet companies’ liability for unlawful content or activity that they host.[396] Under existing Section 230 jurisprudence, companies cannot be held liable as speakers, publishers, or distributors of content if it has been provided by “another information content provider,” with limited exceptions.[397] Courts have interpreted Section 230 to shield companies from liability even when they know about users’ unlawful content, refuse to remove it, solicit it, or amplify it.[398] Internet companies also are not bound by the First Amendment, which only regulates government actors.[399] The combined effect is that internet companies have “wide latitude to make all sorts of decisions — including none at all — with respect to others’ hate speech.”[400] It also means that “one of the world’s most global and influential industries . . . has developed without an attendant body of law.”[401]

Section 230 “institutionalized the idea that websites are not publishers but rather ‘intermediaries,’” conveying an aura of neutrality that may have been appropriate in 1996 when the statute passed but is no longer accurate in the era of recommendation algorithms and surveillance capitalism.[402] These developments have transformed “the relationship between the company and the content on its platforms,” whereby content is now “a source of behavioral surplus, as is the behavior of the people who provide the content, as are their patterns of connection, communication, and mobility.”[403] Since content that is unlawful or facilitates unlawful activity may have a special propensity to drive the type of engagement that internet companies now covet, scholars like Danielle Keats Citron and Mary Anne Franks propose retracting Section 230 immunity when a company fails to take “reasonable steps to address unlawful uses of its service.”[404] Similarly, Olivier Sylvain asserts that Section 230 doctrine should be revised so that courts “consider whether intermediaries’ designs create the conditions under which their users unavoidably engage in illegal activity.”[405]

But reinterpreting or amending Section 230 to expand internet companies’ liability for unlawful content or activity would not meaningfully intervene in the proliferation of hate speech and disinformation about gender variance online because most of this content is not unlawful, nor is it likely to become so under the First Amendment (nor, necessarily, should it be).[406] Moreover, the colonial origins of the sex/gender binary, nineteenth- and twentieth-century cross-dressing laws, their afterlife under surveillance capitalism, and renewed political will to outlaw gender variance should prompt skepticism for regulatory reforms of the internet that rest on preexisting distinctions between “lawful” and “unlawful” expression and activity. Premising Section 230’s protections on the underlying legality of content would fail to account for, and could help revitalize, the long history of outlawing gender variance in this country. That history challenges the presumption that the legal status of expression is a desirable proxy for determining whether internet companies should censor it, especially when politicians are seeking to eradicate gender variance from public life.

In short, content that is unlawful may not necessarily be harmful, and content that is lawful may indeed be very harmful. Just as gender variance is becoming increasingly unlawful in healthcare, bathrooms, sports, schools, workplaces, public performances, prisons, and the military, it may soon become unlawful on the internet, too. If that happens, holding internet companies liable for hosting unlawful content would be a playbook for extinguishing gender variance rather than protecting it.

B.      Moving Upstream: Ending Commercial Surveillance

Commodification of human experience lies at the heart of the internet’s role in amplifying hate speech and disinformation about gender variance. Downstream reforms like content moderation or expanding liability aim to clean up the symptoms of this problem while ignoring its root cause. By way of analogy, hatred and disinformation are like greenhouse gasses that emanate from the industrial manufacture of behavioral prediction and modification products. Relying on self-moderation and liability schemes to clean up our virtual atmosphere is akin to relying on fossil fuel companies to capture carbon and then suing them while the planet burns. The real solution to climate change is to stop mining fossil fuels, and the real solution to online hatred and disinformation is to stop harvesting behavioral data.[407]

This Note joins the calls of many scholars, activists, politicians, and the public to disrupt the fundamental logic of surveillance capitalism and its imperative to capture user engagement at the expense of safety, dignity, and democracy. If “the bedrock of surveillance economics . . . is the secret extraction of human data,” then we must reject, wholesale, markets that dispossess human experience to predict and manipulate behavior for profit.[408] As with markets that trade in human beings and human organs, “[w]e can outlaw markets that trade in human futures because we have seen their antihuman, antisocial, and antidemocratic harms.”[409]

I propose that we enact a law abolishing the secret commercial harvesting of behavioral data. This regulation would shift anti-transgender culture by disincentivizing the spread of hate speech and disinformation about gender variance, thereby helping deprogram the logics of punishing, disappearing, and making spectacles of gender-variant people that originate in nineteenth- and twentieth-century cross-dressing laws. In the process, this regulation would help phase out the colonial technology of the sex/gender binary so that adherence to our birth assignments of “man” or “woman” is no longer required for participation in public life. While Tarnoff is correct in asserting that “to remake the internet, we will have to remake everything else,” a dialectical approach to this problem suggests that the converse is also true: to remake everything else, we will have to remake the internet.[410] If gender is what we seek to remake, we must regulate the internet to deregulate gender variance.

Currently, there is no comprehensive federal privacy law controlling how internet companies surveil, collect, retain, compute, sell, share, or profit from personal information.[411] A law barring the accumulation of such information to forecast and shape behavior, regardless of whether it is provided by users or algorithmically inferred by surveilling them, “would eliminate the surveillance dividend and with it the financial incentives” to capture user engagement with hate speech and disinformation about gender variance.[412] Under this scheme, companies would still be permitted to collect data to improve their products or services by, for example, innovating new features, debugging issues, or enhancing security protocols. However, companies would not be permitted to collect or repurpose these data for fabrication into prediction products, especially to drive advertising revenue.

This strategy is also content- and viewpoint-neutral.[413] It does not require internet companies or the government to distinguish between expression that is hateful from benign, harmful from beneficial, or falsehood from fact, because it would not regulate expression at all. As we have seen, the definitions of those categories are rightfully contested, and neither private firms nor the government can be trusted to apply them in ways that protect gender variance rather than punish or censor it.[414] An internet free from commercial surveillance would still permit hatred and disinformation to exist online; it simply would prohibit internet companies from artificially amplifying such content as a means of extracting predictive signals to maximize their profits.[415] Absent the engagement imperative, hatred and disinformation have “a higher chance of being lost in the noise.”[416]

Critics of this proposal may argue that abolishing commercial data harvesting would make internet companies unprofitable and lead to a collapse of the digital economy. However, this critique forgets that the internet itself is a product of public, not private, investment. It also assumes that the profitability of surveillance capitalism and its resulting inequities are worth preserving in the first place. Just as abolishing slavery requires that we categorically reject the commodification of human beings—regardless of the financial consequences for those who traffic in enslaved people—and reversing climate change requires that we categorically reject the extraction of hydrocarbons—regardless of the financial consequences for those who traffic in fossil fuels—so too does abolishing commercial surveillance require that we categorically reject the commodification and extraction of human experience—regardless of the financial consequences for those who traffic in human futures. If internet tycoons depend on hate speech, disinformation, and secret surveillance to stay in business, they should not be in business at all.

In lieu of abolition, some advocates seek to impose a “data minimization” requirement, which would restrict “data collection and retention to the absolute minimum that is required to deliver the service to the end-user, irrespective of the company’s business model or financial interests.”[417] This is the approach proposed by the American Privacy Rights Act (APRA), which was introduced in 2024.[418] The APRA would have restricted the collection, processing, retaining, or transferring of data to “what is necessary, proportionate, and limited” to providing or maintaining a service.[419] To disrupt surveillance revenues, however, that scheme would need to preclude a company from defining the “service” as “targeted advertising,” which the APRA did not (and, in fact, would have explicitly permitted).[420]

A less restrictive rule requires companies to allow users to “opt in” to or “opt out” of the collection, sharing, or selling of their personal information.[421] Under California law, for example, consumers have a right “to opt out of [the] sale or sharing” of “information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.”[422] But as Zuboff notes, surveillance capitalists do not sell or share their raw materials—rather, they sell “predictions that only [they] can fabricate from [their] world-historic private hoard of behavioral surplus.”[423] So while this less restrictive alternative to abolition has survived protest from the Silicon Valley lobby, it ultimately consumes us “in the details of the property contract [so] that we forget the real issue, which is that their property claim itself is illegitimate.”[424] Since most people have neither the time nor energy to read the “privacy policies” and “terms of service” that comprise these contracts—nor any meaningful alternative in a media ecosystem that is dependent on surveillance revenues—such opt-out regimes have done little to mitigate the spread of hate speech and disinformation.[425]

The European Union (EU) has taken another approach based in risk assessment and management. In 2022, the EU passed the Digital Services Act (DSA), which requires “very large online platforms and . . . very large online search engines” to assess and mitigate the systemic risks posed by their recommendation, content moderation, advertising, and other data-related systems to, inter alia, dignity, privacy, freedom of expression, non-discrimination, consumer protection, civic discourse, electoral processes, public security, gender-based safety, and physical and mental well-being.[426] The DSA also imposes obligations on large “platforms” and search engines that use recommender systems and present advertisements to disclose “the main parameters” used in their algorithms and provide at least one recommendation option “which is not based on profiling.”[427] These regulations are helpful in moving toward transparency, harm reduction, and consumer choice, but the solution that I propose is more direct and transformative. Rather than merely requiring companies to disclose and mitigate the harms of their surveillance operations and then provide users the option to reduce the impact of those harms on their accounts, I suggest that we outlaw the business model that causes those harms in the first place. After all, the targets of the animus that internet companies manufacture and amplify already understand the risks of commercial surveillance firsthand, and neither the DSA nor any other opt-out regime provides gender-variant people—or the public, generally—with a way of opting out of this culture.

More promising regulations have also been contemplated in the United States. The Banning Surveillance Advertising Act, introduced in 2023, would have prohibited targeted advertising using personal information but allowed “contextual” advertising using information about what a user is presently viewing or searching for and their general location.[428] This compromise permits internet companies to earn advertising revenue and feature advertisements that are likely useful for consumers without invoking the engagement imperative and its incentives to proliferate hate speech and disinformation. The Federal Trade Commission has also solicited public comments on whether it should implement new rules “concerning the ways in which companies collect, aggregate, protect, use, analyze, and retain consumer data, as well as transfer, share, sell, or otherwise monetize that data in ways that are unfair or deceptive.”[429] Whether or not this inquiry will move us toward a digital future free from artificial spectacles of gender variance will be up to democracy and its checks on corporate and regulatory power to predetermine how, where, and when we look.

Conclusion

Repealing nineteenth- and twentieth-century cross-dressing laws was an essential step toward deregulating gender variance in the United States. Unfortunately, the anti-transgender culture that those laws produced found fertile ground to flourish in an internet economy that values engagement above all else. In this century, legal prohibitions against gender variance are resurgent, in part, because internet companies and politicians have found common cause in conforming our clicks, purchases, bodies, and lives to their norms.

This Note has traced the fault lines of the internet for gender-variant people, but it is not a wholesale condemnation of this technology. Even under the control of surveillance capitalists, the internet has nurtured and revitalized gender-variant communities that cross-dressing laws disrupted in centuries prior. Among other benefits, the internet facilitates “affirming spaces that, for the most part, do not exist in the[] offline lives” of many gender-variant and especially young gender-variant people, nearly all of whom use it to find information that helps them understand their identities.[430] This provides opportunities for healing, growth, and building resilience in the face of vicious political and cultural assaults.[431]

Benefits aside, the internet can and should be better. As I have argued, the online hatred and disinformation that surveillance capitalism relies upon constrain everyone’s ability to live authentically under the law. This problem is certainly not unique to gender-variant people, but gender-variant experiences are uniquely situated to unsettle institutions that, for others, may appear hard-wired and inevitable. The internet, and its attendant regulations, is no different.

Deregulating gender variance today will require robust challenges to anti-transgender laws in court, but the history of cross-dressing laws teaches that to have lasting impact, legal strategies must intervene in culture, too. So long as internet companies have an economic imperative to capture engagement, their machines will carry on fortifying anti-transgender culture with false and inflammatory spectacles of gender variance, and the work of deprogramming the logics of cross-dressing laws will remain unfinished. For those of us who still believe that we belong to ourselves, internet regulation is urgently needed to break the doomscroll-to-gender-regulation pipeline. Only when secret commercial surveillance is abolished may we declare, in earnest: The show is over. There’s nothing to see here. It’s time to go home.

And what home will we return to? When our attention is no longer held captive by fear and outrage and our interiority is no longer open for pillage, perhaps we will find sanctuary within ourselves. Here, in the intimate spaces that may no longer be surveilled, our genders may dance with freedom and incandescent beauty.

Copyright © 2025 Dani O’Donnell, J.D., 2024, University of California, Berkeley, School of Law. I am forever grateful to the California Law Review for investing in my work, to my colleagues for zealously defending my community, to Dale Melchert and the Transgender Law Center for teaching me what gender liberation means in practice, to Professor Pamela Samuelson for orienting me to the world of internet regulations, and to Professor Khiara M. Bridges for sharing her brilliance with me. This Note is dedicated to everyone who has loved me when I have not known how to love myself, especially Sam, Priya, Liz, Rachael, Amanda, Mia, Andrea, Lil, Cherise, Rooney, Daniel, Rob, Nicole, Joey, Evan, Nan, Pops, and, of course, Evan.

          [1].     ALOK (@alokvmenon), Instagram (Apr. 14, 2023), https://www.instagram.com/reel/CrCtTpJgD9_/?igsh=MWN6Ym9mOHd2a25vbA== [https://perma.cc/XDQ7-DHYT] (excerpting a video of Jones speaking).

          [2].     I use the terms “gender-variant people” and “gender variance” throughout this Note to describe people and practices that deviate from normative expectations of sex and gender assigned at birth. This includes intersex, transgender, nonbinary, gender-nonconforming, and agender people, among others.

          [3].     National State of Emergency for LGBTQ+ Americans, Hum. Rts. Campaign, https://www.hrc.org/campaigns/national-state-of-emergency-for-lgbtq-americans [https://perma.cc/N6TE-WPPU].

          [4].     See 2025 Anti-Trans Bills Tracker, Trans Legis. Tracker, https://translegislation.com [https://perma.cc/PJU7-HHR7].

          [5].     See, e.g., What Anti-Trans Bills Passed in 2023, Trans Legis. Tracker, https://translegislation.com/bills/2023/passed [https://perma.cc/Z4BR-7KFR]; What Anti-Trans Bills Passed in 2024, Trans Legis. Tracker, https://translegislation.com/bills/2024/passed [https://perma.cc/GLY3-AH2Q].

          [6].     Exec. Order No. 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, 90 Fed. Reg. 8615, 8615 (Jan. 20, 2025) https://www.govinfo.gov/content/pkg/FR-2025-01-30/pdf/2025-02090.pdf [https://perma.cc/XNF7-M3R5].

          [7].     See Exec. Order No. 14185, Restoring America’s Fighting Force, 90 Fed. Reg. 8763 (Jan. 27, 2025) https://www.govinfo.gov/content/pkg/DCPD-202500189/pdf/DCPD-202500189.pdf [https://perma.cc/E9DU-QPPU]; Exec. Order No. 14183, Prioritizing Military Excellence and Readiness, 90 Fed. Reg. 8757 (Jan. 27, 2025) https://www.govinfo.gov/content/pkg/FR-2025-02-03/pdf/2025-02178.pdf [https://perma.cc/34LJ-R88M]; Exec. Order No. 14190, Ending Radical Indoctrination in K–12 Schooling, 90 Fed. Reg. 8853 (Jan. 29, 2025) https://www.govinfo.gov/content/pkg/DCPD-202500198/pdf/DCPD-202500198.pdf [https://perma.cc/Y89C-RZJQ]; Exec. Order No. 14201, Keeping Men out of Women’s Sports, 90 Fed. Reg. 9279 (Feb. 5, 2025) https://www.govinfo.gov/content/pkg/DCPD-202500229/pdf/DCPD-202500229.pdf [https://perma.cc/6FZT-WGA2]; Exec. Order No. 14187, Protecting Children from Chemical and Surgical Mutilation, 90 C.F.R. 8771 (Jan. 28, 2025) https://www.govinfo.gov/content/pkg/FR-2025-02-03/pdf/2025-02194.pdf [https://perma.cc/F4BB-D72P].

          [8].     Researchers and practitioners distinguish between disinformation, misinformation, and malinformation. Disinformation is “deliberately created to mislead, harm, or manipulate a person, social group, organization, or country.” Foreign Influence Operations and Disinformation, Cybersecurity & Infrastructure Sec. Agency, https://www.cisa.gov/topics/election-security/foreign-influence-operations-and-disinformation [https://perma.cc/Z8RT-XVZV]. Misinformation is “false, but not created or shared with the intention of causing harm.” Id. Malinformation is “based on fact, but used out of context to mislead, harm, or manipulate.” Id. This Note uses “disinformation” to describe false or decontextualized information about gender-variant people, generally, as the intent of content creators can be difficult or impossible to discern.

          [9].     Laurel Powell, 2021 Becomes Deadliest Year on Record for Transgender and Non-Binary People, Hum. Rts. Campaign (Nov. 9, 2021), https://www.hrc.org/press-releases/2021-becomes-deadliest-year-on-record-for-transgender-and-non-binary-people [https://perma.cc/42BU-FHW8]; see Everytown for Gun Safety Transgender Homicide Tracker, EveryStat, https://airtable.com/appPLAJ5mUFwndPkQ/shrkgUrJPmtGxHZ0m/tblEhXLsohkNldLZp [https://perma.cc/VF2Z-ACVU] (showing that of sixty recorded gun homicides of transgender people in 2021, thirty-four were of Black transgender women).

        [10].     GLAAD, ALERT Desk 5–7 (Oct. 2024), https://assets.glaad.org/m/24853cf4c5477f8c/original/2024-GLAAD-ALERT-Desk-Report.pdf [https://perma.cc/3VPB-MF2G].

        [11].     Hum. Rts. Campaign Found., Online Harassment, Offline Violence 14 (Dec. 2022) [hereinafter Online Harassment], https://hrc-prod-requests.s3-us-west-2.amazonaws.com/HRCF-OnlineHarassmentOfflineViolence.pdf [https://perma.cc/GN8B-FU87].

        [12].     Ctr. for Countering Digit. Hate & Hum. Rts. Campaign, Digital Hate 18 (2022) [hereinafter Digital Hate], https://counterhate.com/wp-content/uploads/2022/08/CCDH-HRC-Digital-Hate-Report-2022-single-pages.pdf [https://perma.cc/B9YT-VD7P].

        [13].     Kasey Meehan, Sabrina Baêta, Tasslyn Magnusson & Madison Markham, Pen Am., Banned in the USA (Nov. 1, 2024), https://pen.org/report/beyond-the-shelves/ [https://perma.cc/2YQG-CYUG].

        [14].     See Catherine Rampell, Amanda Shendruk & Flavio Pessoa, A Sample of the Government Webpages Trump Doesn’t Want You to See, Wash. Post (Feb. 7, 2025), https://www.washingtonpost.com/opinions/interactive/2025/sample-government-webpages-trump-doesnt-want-you-see/ [https://perma.cc/7DBF-C8YS]; Apoorva Mandavilli & Roni Caryn Rabin, C.D.C. Site Restores Some Purged Files After ‘Gender Ideology’ Ban Outcry, N.Y. Times (Feb. 3, 2025), https://www.nytimes.com/2025/02/03/health/trump-gender-ideology-research.html [https://perma.cc/RH2R-BQCB].

        [15].     Gillian Branstetter, The Club Q Shooting Took Trans Lives and Destabilized a Community, ACLU (Nov. 22, 2022), https://www.aclu.org/news/lgbtq-rights/the-club-q-shooting-took-trans-lives-and-destabilized-a-community [https://perma.cc/5U6G-JGVQ].

        [16].     TransLash Media, Chase Strangio: TransLash ‘The Future of Trans’ Extended Interview, YouTube 14:45–14:57 (Nov. 17, 2022), https://www.youtube.com/watch?v=ujGLEYvC148 [https://perma.cc/4XLH-C4US] (“[T]he policing of children is inherently linked to the idea of future possibility . . . . You block them as kids, and you deny a future.”).

        [17].     The Trevor Project, 2024 U.S. National Survey on the Mental Health of LGBTQ Young People 3 (2024), https://www.thetrevorproject.org/survey-2024/assets/static/TTP_2024_National_Survey.pdf [https://perma.cc/M37K-AJ28].

        [18].     Wilson Y. Lee, J. Nicholas Hobbs, Steven Hobaica, Jonah P. DeChants, Myeshia N. Price & Ronita Nath, State-Level Anti-Transgender Laws Increase Past-Year Suicide Attempts Among Transgender and Non-Binary Young People in the USA, 8 Nat. Hum. Behav. 2096, 2100 (2024).

        [19].     I use the term “cisgender” throughout this Note to describe people who identify with their gender assigned at birth.

        [20].     Press Release, UCLA Sch. of L.: Williams Inst., More Than 40% of Transgender Adults in the US Have Attempted Suicide (July 20, 2023), https://williamsinstitute.law.ucla.edu/press/transpop-suicide-press-release/ [https://perma.cc/G8KJ-8GR2].

        [21].     See Walter Benjamin, Illuminations 257 (Hannah Arendt ed., Harry Zohn trans., 1968).

        [22].     See generally Fox News, TOTALLY INAPPROPRIATE: DeSantis Rails Against ‘Woke’ Gender Ideology, YouTube (Sept. 6, 2023), https://www.youtube.com/watch?v=sbhx4Hp-GKQ [https://perma.cc/37B3-BMNR]; Hillsdale College, Science, the Transgender Phenomenon, and the Young | Abigail Shrier, YouTube (May 12, 2021), https://www.youtube.com/watch?v=DWbxIFC0Q2o [https://perma.cc/WS4Q-ETPV]; Real Time with Bill Maher, New Rule: Along for the Pride, YouTube (May 20, 2022), https://www.youtube.com/watch?v=mMBzfUj5zsg&t=185s [https://perma.cc/VE58-WQVG].

        [23].     See generally Online Harassment, supra note 11, at 6–12 (showing examples of posts).

        [24].     See Gender Transformation: The Untold Realities (EpochTV 2023).

        [25].     See Adam Nagourney & Jeremy W. Peters, How a Campaign Against Transgender Rights Mobilized Conservatives, N.Y. Times (Apr. 16, 2023), https://www.nytimes.com/2023/04/16/us/politics/transgender-conservative-campaign.html [https://perma.cc/T7NR-75QA].

        [26].     I use the term “internet companies” throughout this Note to refer to entities that other sources describe as “platforms,” “intermediaries,” or “social media companies.” Like Ben Tarnoff, I seek to challenge the “aura of openness and neutrality” denoted by these terms. See Ben Tarnoff, Internet for the People 75 (2022).

        [27].     See, e.g., Mozilla Foundation, YouTube Regrets 8 (July 2021), https://assets.mofoprod.net/network/documents/Mozilla_YouTube_Regrets_Report.pdf [https://perma.cc/92FG-4TYF] (describing how a search for affirming LGBTQ+ content on YouTube nonetheless led to anti-LGBTQ+ videos).

        [28].     See Ruha Benjamin, Race After Technology 91 (2019) (defining race as a technology in those terms).

        [29].     See id. at 77.

        [30].     See id. at 80 (describing how technical glitches “are not spurious, but rather a kind of signal of how the system operates”).

        [31].     See Teresa de Lauretis, Technologies of Gender 5 (1987); see also Alok Vaid-Menon, Beyond the Gender Binary 27 (2020) (“[D]iscrimination against gender non-conforming people happens because of a system that rewards conformity and not creativity.”).

        [32].     See Clare Sears, Arresting Dress 3 (2015) (“[C]ross-dressing law represented a specific strategy of government that constructed normative gender, reinforced inequalities, and generated new modes of exclusion from public life.”); William N. Eskridge, Jr., Gaylaw loc. 124-59 (1999) (ebook) (“Municipal, then state, government was enlisted as an ally to stamp out or discourage gender and sexual nonconformity.”); Vaid-Menon, supra note 31, at 30 (“[W]e tell [gender-nonconforming kids] that they are not real. We punish them until they conform.”), 51 (“[I]t is a political choice to emphasize certain differences over others in order to create categories.”); Transcript of Oral Argument at 137, United States v. Skrmetti, No. 23-477 (argued Dec. 4, 2024) (Kagan, J.) (describing an “articulated purpose” of Tennessee’s law prohibiting gender-affirming healthcare for minors to “encourage gender conformity and to discourage anything other than gender conformity”).

        [33].     See Eskridge, supra note 32, at loc. 258–59 (“[J]ust as social developments drove legal evolution, so legal developments affected social evolution.”); Naomi Mezey, Law as Culture, 13 Yale J. L. & Human. 35, 46–47 (2001) (“Law participates in the production of meanings within the shared semiotic system of a culture, but it is also a product of that culture and the practices that reproduce it.”).

        [34].     See Eskridge, supra note 32, at loc. 86 (“The rules normalized what they did not prohibit, and working together various rules formed a normalizing regime.”), 91–93 (“Additionally, the rules created new power relationships, whereby police, doctors, family members, and even complete strangers were given authority to control members of the stigmatized group. The law impelled these people to interrogate suspected deviates, and their interrogations stimulated an intensified discourse of normal-versus-deviate sexuality and gender.”).

        [35].     See Anya Zoledziowski, CPAC Speaker Calls for Eradication of ‘Transgenderism,’ Crowd Goes Wild, Vice (Mar. 6, 2023) (quoting Michael Knowles’s speech at the 2023 Conservative Political Action Conference, where he proclaimed that “transgenderism must be eradicated from public life entirely”), https://www.vice.com/en/article/bvjgnq/cpac-transgenderism-speaker-called-for-eradication [https://perma.cc/894G-LMGV].

        [36].     See Adam Liptak & Emily Bazelon, Supreme Court Inclined to Uphold Law on Transgender Care, N.Y. Times (Dec. 4, 2024), https://www.nytimes.com/2024/12/04/us/politics/supreme-court-transgender-care-minors.html [https://perma.cc/YY99-2EN8] (reporting that the Supreme Court’s conservative majority is poised to uphold a Tennessee law restricting gender-affirming healthcare for minors). This Note was finalized for publication before the Supreme Court decided that case.

        [37].     James Baldwin & Nikki Giovanni, A Dialogue 88–89 (1973).

        [38].     I use the phrase “sex/gender” to signal that sex and gender are both social constructions that cannot be understood on the basis of biology or culture alone. See Oyèrónké Oyěwùmí, The Invention of Women xii (1997) (“[I]n Western societies, physical bodies are always social bodies. As a consequence, there is really no distinction between sex and gender . . . .”). The term “sex/gender” first appeared in Gayle Rubin, The Traffic in Women: Notes on the “Political Economy” of Sex, in Toward an Anthropology of Women 157, 159 (Rayna R. Reiter ed., 1975).

        [39].     See Sears, supra note 32, at 5; see also Oyěwùmí, supra note 38, at 8–9 (“When social categories like gender are constructed, new biologies of difference can be invented. When biological interpretations are found to be compelling, social categories do derive their legitimacy and power from biology. In short, the social and the biological feed on each other.”); Emma Heaney, The New Woman 254 (2017) [hereinafter Heaney 2017] (“There is a long historical archive that demonstrates examples of female identity that do not hinge on assigned sex or the possibility of sex change.”); Julie Greenberg, The Road Less Traveled: The Problem with Binary Sex Categories, in Transgender Rights 51, 52 (Paisley Currah, Richard M. Juang & Shannon Price Minter eds., 2006) (“Sex, therefore, can be viewed as a social construct rather than a biological fact.”).

        [40].     See Susan Stryker, Transgender History 15–16 (2nd ed. 2017) (ebook) (“[W]hat counts as sex is a cultural belief. . . . It’s therefore possible to understand sex being just as much of a social construct as gender.”); Heaney 2017, supra note 39, at 5 (“[D]efinitions of sex categories change over time, often in seemingly abrupt spurts that challenge the organization of society.”); Thomas Laqueur, Making Sex 11 (1990) (discussing how the meaning of sex is shaped within the contested power politics of gender); see also In re Estate of Gardiner, 42 P.3d 120, 135 (Kan. 2002) (holding that a marriage between a transgender woman and cisgender man is void as against public policy because “[t]he words ‘sex,’ ‘male,’ and ‘female’ in everyday understanding do not encompass transsexuals”).

        [41].     See Beans Velocci, Denaturing Cisness, or, Toward Trans History as Method, in Feminism Against Cisness 108, 115 (Emma Heaney ed., 2024) (“[C]lassification systems are made, and they are made by people and institutions with their own interests and investments about the outcome of who counts as what.”).

        [42].     Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 72 (1995).

        [43].     See Laqueur, supra note 40, at 8, 10; Franke, supra note 42, at 72 (“Thus conceived, the male body represented the manifestation of a kind of metaphysical perfection located at the apex of an axis that placed the female body, an inferior simulacrum to that of the male, lower down the evolutionary line.”).

        [44].     Laqueur, supra note 40, at 4.

        [45].     See id. at 8, 10–11, 196–97.

        [46].     See id. at 196–97; see also Kyla Schuller, The Trouble with White Women 87 (2021) (“Sex specialization meant that men managed the public sphere of business and politics and women presided angelically over the private realm of hearth and home . . . .”); Cynthia Eagle Russett, Sexual Science 12 (“Nature had decreed a secondary role for women. The great principle of division of labor was here brought to bear: men produced, women reproduced.”), 42 (“Emotion was universally acclaimed as a woman’s element. If men characteristically thought, women characteristically felt.”) (1989).

        [47].     See Susan J. Vincent, The Anatomy of Fashion 4, 97–104, 120 (2009); see also Anne Hollander, Sex and Suits 87 (1994) (“To show that women have ordinary working legs, just like men . . . was also to show that they have ordinary working muscles and tendons, as well as spleens and livers, lungs and stomachs, and, by extension, brains.”).

        [48].     David Scott, The Re-Enchantment of Humanism: An Interview with Sylvia Wynter, 8 Small Axe 119, 174 (Sept. 2000) (excerpting from an interview with Sylvia Wynter).

        [49].     See Louise Michele Newman, White Women’s Rights loc. 276 (1999) (ebook); see also Heaney 2017, supra note 39, at 30 (“[N]o single definition of femininity or masculinity existed in the [early twentieth century]. Instead, there were particular iterations of ‘men’ and ‘women’ that varied according to class and ethnic group.”); Emma Heaney, Introduction, in Feminism Against Cisness, supra note 41, at 1, 2 (“The mutually reinforcing structures of coloniality, white supremacy, patriarchy, caste, and class reproduce the distinction between the powerful who do sex correctly and the masses who do sex incorrectly and therefore must be managed or punished.”).

        [50].     Greg Thomas, The Sexual Demon of Colonial Power 42 (2007).

        [51].     María Lugones, Heterosexualism and the Colonial / Modern Gender System, 22 Hypatia 186, 202–03 (Winter 2007).

        [52].     See Thomas, supra note 50, at 28 (“One cannot qualify as human if one is not identified as man or woman, and vice versa, since manhood, womanhood, and humanity are not apolitical notions (as if there were such a thing), but very political notions of empire.”); see also Joey L. Mogul, Andrea J. Ritchie & Kay Whitlock, Queer (In)Justice 3 (2012) (“[C]olonization required the violent suppression of gender fluidity in order to facilitate the establishment of hierarchal relations between two rigidly defined genders, and, by extension, between colonizer and colonized.”); Scott, supra note 48, at 174 (excerpting Wynter’s analysis that colonial gender categories “had not existed before the West’s global expansion”); Oyěwùmí, supra note 38, at ix (“[T]he fundamental category ‘woman’ — which is foundational in Western gender discourses — simply did not exist in Yorùbáland prior to its sustained contact with the West. There was no such preexisting group characterized by shared interests, desires, or social position.”).

        [53].     Margaux L. Kristjansson & Emma Heaney, 1970s Trans Feminism as Decolonial Praxis, in Feminism Against Cisness, supra note 41, at 56, 60.

        [54].     William I. Thomas, On a Difference in the Metabolism of the Sexes, 3 Am. J. Socio. 31, 41 (1897).

        [55].     Id.

        [56].     See Newman, supra note 49, at 12; see also Sally Markowitz, Pelvic Politics: Sexual Dimorphism and Racial Difference, 26 Signs 389, 390 (2001) (“[I]n dominant Western ideology a strong sex/gender dimorphism often serves as a human ideal against which different races may be measured and all but white Europeans found wanting.”); Eskridge, supra note 32, at loc. 316–30 (describing theories by late nineteenth-century sexologists asserting that gender “inversions” were a degeneration, “or reversion to a prior evolutionary status”); Lugones, supra note 51, at 195 (noting that the “[s]exual fears of colonizers led them to imagine the [I]ndigenous people of the Americas as hermaphrodites or intersexed” and “only recognize[d] sexual dimorphism for white bourgeois males and females”).

        [57].     See Russett, supra note 46, at 11 (“The overwhelming consensus of this work was that women were inherently different from men in their anatomy, physiology, temperament, and intellect. In the evolutionary development of the race women had lagged behind men, much as ‘primitive people’ lagged behind Europeans.”).

        [58].     See Newman, supra note 49, at 12.

        [59].     See Nancy Ordover, American Eugenics 15 (describing how eugenicists considered “poverty as a manifestation of” the diagnosis “dysgenesis”), 91 (“[E]arly sexologists conceptualized intellectual, biological, physical, and moral qualities as . . . ‘embedded in an individual’s body.’” (quoting another source)) (2003); Sears, supra note 32, at 75 n.35 (describing “gynomania” as a condition that doctors developed in 1877 to explain “the passion that some young people have for the dress and manner of the opposite sex” (quoting another source)); Osagie K. Obasogie, Excited Delirium and Police Use of Force, 107 Va. L. Rev. 1545, 1590 (2021) (describing “drapetomania” as a condition that doctors developed to explain why enslaved people would seek freedom); Heaney, supra note 39, at 7 (explaining how “the medicalization of trans femininity cohered in a nosology that required trans women to regard their bodies and sex as misaligned,” despite having previously “functioned socially as women”).

        [60].     See Anne Tamar-Mattis, Exceptions to the Rule: Curing the Law’s Failure to Protect Intersex Infants, 21 Berkeley J. Gender L. & Just. 59, 64–67 (2006) (describing “the dominant standard of care for intersex infants,” which dates to the 1950s and involves “early and conclusive assignment of gender, early genital-normalizing surgery (before two years of age), and secrecy and denial about the child’s condition”).

        [61].     See Newman, supra note 49, at 17; see also Kyla Schuller, The Biopolitics of Feeling 74 (2017) (describing fears that white “women’s electoral participation would stimulate the growth of masculine traits and atrophy feminine characteristics, causing women and the civilized race to slide down the evolutionary timeline back to primitivism”); Vincent, supra note 47, at 120 (“[A] breeched woman was symptomatic of a world upside down—a subversion of authority and a perversion of the natural order.”).

        [62].     See Newman, supra note 49, at 32; see also Schuller, supra note 46, at 88 (“[Indigenous people] could be saved, trained into the habits of civilized sex specialization. . . . They were in need of a mother—a white mother, who could raise the race into maturity.”).

        [63].     Newman, supra note 49, at 96.

        [64].     Id. at 115.

        [65].     Franke, supra note 42, at 56–58.

        [66].     See Stryker, supra note 40, at loc. 88–89.

        [67].     See id. at 70.

        [68].     Jayden Donahue, Making It Happen, Mama: A Conversation with Miss Major, in Captive Genders 301, 311 (Eric A. Stanley & Nat Smith eds., 2nd ed. 2015) (excerpting from an interview with Griffin-Gracy).

        [69].     See Sears, supra note 32, at 13.

        [70].     See I. Bennett Capers, Cross Dressing and the Criminal, 20 Yale J. L. & Human. 1, 9 (2008) (arguing that cross-dressing “laws had the effect of inscribing diamorphic gender divisions”); Marjorie Garber, Vested Interests 10 (2011) (arguing that cross-dressing “offers a challenge to easy notions of binarity, putting into question the categories of ‘female’ and ‘male,’ whether they are considered essential or constructed, biological or cultural”); Sears, supra note 32, at 5 (describing how San Francisco’s cross-dressing ordinance emerged during a period of “unprecedented growth” in an “epicenter of U.S. capitalist investment, urban development, and imperial expansion” to benefit its “white, male, merchant elite”); Kate Redburn, Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86, 40 L. & Hist. Rev. 679, 687–88 (2022) (contextualizing cross-dressing laws in “Antebellum America” and “[w]hite upper-class anxiety about the changing urban landscape”).

        [71].     See Doe v. Ladapo, 676 F. Supp. 3d 1205, 1211 (N.D. Fla. 2023) (“[A]n unspoken suggestion running just below the surface in some of the proceedings that led to adoption of the statute and rules at issue—and just below the surface in the testimony of some of the defense experts—is that transgender identity is not real, that it is made up.”); Pamela Paul, As Kids, They Thought They Were Trans. They No Longer Do., N.Y. Times (Feb. 2, 2024), https://www.nytimes.com/2024/02/02/opinion/transgender-children-gender-dysphoria.html [https://perma.cc/9NCB-V55K] (describing gender transitions in children as a “recent . . . phenomenon” attributable to social media and classroom “curriculums supplied by trans rights organizations”); Foundations of the Contemporary Anti-LGBTQ+ Pseudoscience Network, S. Poverty L. Ctr. (Dec. 12, 2023), https://www.splcenter.org/captain/foundations [https://perma.cc/WYG3-9FCS] (debunking pseudoscientific narratives of “rapid-onset gender dysphoria” and the “social contagion” theory of gender variance).

        [72].     President Trump’s Plan to Protect Children from Left-Wing Gender Insanity, Donald J. Trump (Feb. 1, 2023), https://www.donaldjtrump.com/agenda47/president-trumps-plan-to-protect-children-from-left-wing-gender-insanity [https://perma.cc/9RFJ-2N58].

        [73].     Mo. Code Regs. Ann. tit. 15, § 60-17.010(2) (2023).

        [74].     Div. of Fla. Medicaid, Fla. Agency for Health Care Admin., Generally Accepted Professional Medical Standards Determination on the Treatment of Gender Dysphoria 12 (June 2022), https://ahca.myflorida.com/content/download/4869/file/AHCA_​GAPMS_June_2022_Report.pdf [https://perma.cc/4NFT-S5EJ].

        [75].     See Equality Florida (@equalityfl), X (Apr. 10, 2023), https://x.com/equalityfl/status/​1645538595518783489 [https://perma.cc/8NU9-K6AB] (excerpting a video of State Representative Barnaby’s remarks).

        [76].     Zoë Richards, Florida GOP Legislator Apologizes After Calling Transgender People ‘Mutants’ and ‘Demons’, NBC News (Apr. 10, 2023), https://www.nbcnews.com/politics/politics-news/florida-legislator-apologizes-calling-transgender-people-mutants-demon-rcna79063 [https://perma.cc/JD9L-TLBM].

        [77].     See Fla. Stat. § 553.865 (2023).

        [78].     See Sears, supra note 32, at 8 (describing how gender variance produces “category crises” that “can include race, class, and national classifications, as accompanying cultural anxieties are displaced onto” gender-variant people).

        [79].     See Redburn, supra note 70, at 718–23 (compiling a list of cross-dressing bans in the United States, which date back to 1843).

        [80].     See id. at 687, 713 n.217 (quoting St. Louis’s cross-dressing ordinance).

        [81].     See Eskridge, supra note 32, at loc. 4746–82; Redburn, supra note 70, at 687; Sears, supra note 32, at 42 (“[T]he emergence of cross-dressing law was intimately bound up with the regulation of [sex work].”), 72–73 (noting that laws targeting “cross-dressed, indecent, unsightly, and racialized immigrant bodies” appeared in the same section of the municipal codebooks, suggesting that cross-dressing laws were “concerned not only with managing gender but also with managing city space”).

        [82].     See Sears, supra note 32, at 4.

        [83].     Clare Sears, This Isn’t the First Time Conservatives Have Banned Cross-Dressing in America, Jacobin (Mar. 15, 2023), https://jacobin.com/2023/03/cross-dressing-law-united-states-history-drag-bans [https://perma.cc/YE2D-T2LX] (“In 1944, for example, Detroit extended its cross-dressing ban to private premises that were open or visible to the public. Miami followed suit in 1956 and also passed a law in 1952 that banned female impersonators from performing in the city.”).

        [84].     Id.

[85].   Equality Florida, supra note 75.

        [86].     Tenn. Code Ann. §§ 7-51-1401(3)(A), 7-51-1407(c)(1)(A) (2023).

        [87].     Fla. Stat. § 456.001(8) (2023).

        [88].     W. Va. Code § 18-2-25d(b)(1), (c)(2) (2021).

        [89].     See Sears, supra note 32, at 42 (quoting San Francisco’s cross-dressing ordinance); Redburn, supra note 70, at 687 (quoting Columbus’s cross-dressing ordinance).

        [90].     See Sears, supra note 32, at 13.

        [91].     See Toby Beauchamp, Going Stealth 5, 139 (2019) (“[T]he category of transgender is produced through surveillance practices that both draw and dissolve its parameters, not only through spectacular or formal actions undertaken by state actors but also in the most mundane conditions of our gendered lives.”).

        [92].     See Thomas, supra note 50, at 49.

        [93].     See Greenberg, supra note 39, at 54 (describing myriad “historical, religious, and cross-cultural examples [that] illustrate that rules governing intersex persons have existed throughout history in various cultures and religions”); Leah DeVun, The Shape of Sex 321 (2021) (“[N]onbinary sex played a pivotal role in the formation of categories and definitions fundamental to the European Christian tradition.”); Dallas Denny, Transgender Communities of the United States in the Late Twentieth Century, in Transgender Rights, supra note 39, at 171, 171 (“From prehistoric times to the present, individuals whom today we might call transgendered and transsexual have played prominent roles in many societies, including our own.”); Stryker, supra note 40, at 40 (noting evidence of gender variance in a variety of cultures and ancient religious texts); Emmie Matsuno & Stephanie L. Budge, Non-binary/Genderqueer Identities: A Critical Review of Literature, 9 Curr. Sex. Health Rep. 116, 117 (2017) (“Worldwide, an abundant amount of evidence exists to indicate that human beings have embraced more than two gender identities for as long as oral history and written records have existed.”); Rubin, supra note 38, at 181–82 (describing gender and sex variance in several Indigenous cultures).

        [94].     See Stryker, supra note 40, at 153–54 (“Around 1990 . . . the word transgender first started to acquire its current definition.”); Surya Monro, Non-binary and Genderqueer: An Overview of the Field, 20 Int. J. Transgenderism 126, 126 (2019) (“The earliest use of terms referring directly to non-binary seems to be around 2000 . . . .”).

        [95].     See Jennifer L. Levi & Kevin M. Barry, Transgender Tropes & Constitutional Review, 37 Yale L. & Pol’y Rev. 589, 593–95, 597–99 (2019); see also Doe v. Ladapo, 676 F. Supp. 3d 1205, 1211 (N.D. Fla. 2023) (citing expert witness characterizations of transgender people as “maintaining a ‘charade’ or ‘delusion’” and gender-affirming healthcare as a “‘lie,’ a ‘moral violation,’ a ‘huge evil,’ and ‘diabolical’”).

        [96].     See Sears, supra note 32, at 5, 73; see also Capers, supra note 70, at 6–7 (“[B]y regulating clothes and appearance, the law has . . . functioned to reify hierarchies of sex, class, race, and sexuality.”); Jennifer Levi & Daniel Redman, The Cross-Dressing Case for Bathroom Equality, 34 Seattle U. L. Rev. 133, 152 (2010) (describing how the passage of cross-dressing laws was motivated, in part, by a “desire to keep women ‘in their place’ and prevent them from assuming the privileges and status of men”); Redburn, supra note 70, at 687 (describing how “[w]hite upper-class anxiety about the changing urban landscape prompted legal responses,” including cross-dressing laws, “to protect their values and social position”).

        [97].     See Sears, supra note 32, at 3; see also supra note 70.

        [98].     See Levi & Redman, supra note 96, at 153 (quoting another source).

        [99].     See Sears, supra note 32, at 43. I use San Francisco’s ordinance as a case study throughout this Part because its criminalization of a person’s appearance in public “in a dress not belonging to his or her sex” typifies the most common verbiage of municipal cross-dressing ordinances, including those in Houston and Dallas, Texas; Chicago and Champagne, Illinois; Charleston, South Carolina; Miami, Florida; Kansas City and St. Louis, Missouri; and Columbus and Toledo, Ohio. See Sears, supra note 32, at 42; Eskridge, supra note 32, at loc. 387–91; Redburn, supra note 70, at 687 n.33. San Francisco’s rapid development when its cross-dressing ordinance was enacted also provides a rich case study for examining how shifting urban landscapes gave rise to cross-dressing ordinances across the country. See Sears, supra note 32, at 4–5; see also Redburn, supra note 70, at 687–88.

      [100].     See Sears, supra note 32, at 5, 55; see also Redburn, supra note 70, at 688 (“[C]ross-dressing bans likely disbursed across the country as part of a broader attempt to impose upper-class white Christian morality on the new urban masses.”); George Chauncey, Gay New York 47–48, 182, 333, 340–42 (1994) (describing how, in anticipation of the 1939 World’s Fair, New York Mayor Fiorello La Guardia forbade drag queens from appearing in central Manhattan and employed vice squads to close down most of the city’s gay bars, where gender-variant people congregated).

      [101].     See Levi & Barry, supra note 95, at 597; Sears, supra note 32, at 42.

      [102].     See Sears, supra note 32, at 3.

      [103].     See Sears, supra note 32, at 2, 73–74, 92; see also Stryker, supra note 40, at 71 (“To whatever extent they failed to pass flawlessly as a cisgender person, their very presence in public space was criminalized, and they were at greater risk of extralegal violence from the police and some members of the public.”); Redburn, supra note 70, at 692–93 (describing firsthand accounts of “police officers teasing, humiliating, and degrading” people arrested for cross-dressing).

      [104].     Sears, supra note 32, at 64, 142.

      [105].     Redburn, supra note 70, at 693.

      [106].     Sears, supra note 32, at 17.

      [107].     Id. at 74–75.

      [108].     Id. at 75 n.34.

      [109].     Id. at 75.

      [110].     Id.

      [111].     Id. at 75, 136.

      [112].     See Ordover, supra note 59, at 76.

      [113].     See Sears, supra note 32, at 4; Stryker, supra note 40, at 106.

      [114].     See Sears, supra note 32, at 4; Stryker, supra note 40, at 85–86.

      [115].     Levi & Barry, supra note 95, at 593–94.

      [116].     Id. at 593.

      [117].     Id. at 593–94.

      [118].     Id. at 594.

      [119].     Id. at 595.

      [120].     389 N.E.2d 522, 524–25 (Ill. 1978).

      [121].     266 N.E.2d 602, 604 (Ohio Mun. Ct. 1970).

      [122].     357 N.Y.S.2d 362, 365 (N.Y. Crim. Ct. 1974).

      [123].     See Respondent’s Brief in Opposition to Petition for Writ of Certiorari at 3, Mayes v. Texas, 416 U.S. 909 (1974) (No. 73-627) (cert. denied), https://www.texasobituaryproject.org/2007/11/Mayes/​2Mayes-v-Texas-S-Ct-Cert-Reply.pdf [https://perma.cc/YWG9-AMDK].

      [124].     See Levi & Barry, supra note 95, at 593–95, 597–99 (describing how defenders of cross-dressing laws relied on tropes of gender-variant people to justify them and how cross-dressing laws were overturned for violating the Fourteenth Amendment); Eskridge, supra note 32, at loc. 1609–21 (describing challenges to cross-dressing laws on vagueness grounds); Redburn, supra note 70, at 684–715 (describing how cross-dressing laws were challenged and struck down as violations of these Amendments).

      [125].     See Protecting Pride: Defending the Civil Rights of LGBTQ+ Americans: Hearing Before the S. Comm. on the Judiciary, 118th Cong. 10 (June 21, 2023) (statement of Riley Gaines, Spokeswoman, Independent Women’s Voice).

      [126].     Project 2025, Mandate for Leadership 1 (2023), https://static.project2025.org/2025_MandateForLeadership_FULL.pdf [https://perma.cc/ZXF3-VGQY]; Elena Shao & Ashley Wu, The Many Links Between Project 2025 and Trump’s World, N.Y. Times (Oct. 22, 2024), https://www.nytimes.com/interactive/2024/10/22/us/politics/project-2025-trump-heritage-foundation.html [https://perma.cc/5MS8-UUPE]; see Alison Durkee, Project 2025 Author Russell Vought Confirmed by Senate: Here Are All the Trump Officials with Ties to Policy Agenda, Forbes (Feb. 6, 2025), https://www.forbes.com/sites/alisondurkee/2025/02/06/project-2025-author-russell-vought-confirmed-by-senate-here-are-all-the-trump-officials-with-ties-to-policy-agenda/ [https://perma.cc/43RP-65E7].

      [127].     See Mariana Alfaro & Marianna Sotomayor, Rep. Mace Introduces Measure to Ban Trans Women from Capitol’s Female Bathrooms, Wash. Post (Nov. 19, 2024), https://www.washingtonpost.com/politics/2024/11/19/nancy-mace-transgender-bathroom-ban/ [https://perma.cc/M7TL-LPFD]; Rep. Marjorie Taylor Greene (@repMTG), X (Nov. 19, 2024), https://x.com/RepMTG/status/1858896892840599840 [https://perma.cc/BC9B-3R24].

      [128].     See Brian S. Barnett, Ariana E. Nesbit & Renée Sorrentino, The Transgender Bathroom Debate at the Intersection of Politics, Law, Ethics, and Science, 46 J. Am. Acad. Psychiatry L. 232, 239 (2018); Gabriel R. Murchison, Madina Agénor, Sari L. Reisner & Ryan J. Watson, School Restroom/Locker Rooms Restrictions and Sexual Assault Risk Among Transgender Youth, 143 Pediatrics 1, 2 (June 2019) (emphasis added), https://pmc.ncbi.nlm.nih.gov/articles/PMC8849575/​pdf/nihms-1774519.pdf [https://perma.cc/K5TP-TVLX]; see also Amira Hasenbush, Andrew R. Flores & Jody L. Herman, Gender Identity Nondiscrimination Laws in Public Accommodations: A Review of Evidence Regarding Safety and Privacy in Public Restrooms, Locker Rooms, and Changing Rooms, UCLA Sch. of L.: Williams Inst. (July 23, 2018), https://escholarship.org/uc/item/4rs4n6h [https://perma.cc/FSN7-5QE2] (concluding that the passage of laws that protect gender-variant people in public accommodations “is not related to the number or frequency of criminal incidents in such public spaces”).

      [129].     Stryker, supra note 40, at 8–9.

      [130].     Dean Spade, Compliance is Gendered: Struggling for Gender Self-Determination in a Hostile Economy, in Transgender Rights, supra note 39, at 217, 221.

      [131].     See S. Lamble, Transforming Carceral Logistics: 10 Reasons to Dismantle the Prison Industrial Complex Using Queer/Trans Analysis, in Captive Genders, supra note 68, at 269, 275; Stryker, supra note 40, at 208; see also Spade, supra note 130, at 220 (describing how denial of access to social services results in “large numbers of trans people being entangled in the juvenile and adult criminal justice systems”); Levi & Barry, supra note 95, at 602 (noting that even after the repeal of cross-dressing laws, “governments continue to deny transgender people access to a broad range of appropriate single-sex public services by ignoring the legitimacy of transgender people’s identity after they go through gender transition”).

      [132].     See Stryker, supra note 40, at 208–09; see also Lamble, supra note 131, at 274 (noting that nearly half of the transgender population in the San Francisco Bay Area has been to jail).

      [133].     See Clifton Goring & Candi Raine Sweet, Being an Incarcerated Transperson: Shouldn’t People Care?, in Captive Genders, supra note 68, at 211, 212.

      [134].     See Heaney 2017, supra note 39, at 272.

      [135].     See Sears, supra note 32, at 19.

      [136].     See id. at 3 (“Indeed cross-dressing emerged as peripheral only in the wake of cross-dressing law.”). For a discussion of how defenders of cross-dressing laws relied on religion and biology to explain gender norms, see Levi & Barry, supra note 95, at 598. For a discussion of how the biological construction of the sex/gender binary served the interests of white men, see María Lugones, The Coloniality of Gender, in Feminism in Movement 35, 44, 51 (Lívia De Souza Lima, Edith Otero Quezada & Julia Roth eds., 2024) (describing how biological dimorphism was constructed to serve “Eurocentered global capitalist domination/exploitation” and produced both race and gender as “powerful fictions”). For examples of how gender-variant people are characterized as super-minorities in our jurisprudence, see Doe v. McConn, 489 F. Supp. 76, 77, 81 (S.D. Tex. 1980) (describing “[t]ranssexualism” as “a rare syndrome of gender identity disturbance” when striking down Houston’s cross-dressing ordinance); Petitioner’s Reply at 12–13, United States v. Skrmetti, No. 23-477, 2024 WL 4766977 (Nov. 7, 2024) (noting that “[t]ransgender individuals . . . are a discrete minority accounting for roughly one percent of the population” to support the argument that transgender people constitute a quasi-suspect class).

      [137].     See Velocci, supra note 41, at 111, 117; see also Bostock v. Clayton Cnty., 590 U.S. 644, 716 (2020) (Alito, J., dissenting) (arguing that Title VII of the Civil Rights Act of 1964 does not protect transgender people because the “concept [of gender identity] was essentially unknown to the public at the time” the statute was enacted).

      [138].     See Velocci, supra note 41, at 122.

      [139].     See Sears, supra note 32, at 3 (noting that prior to cross-dressing laws, “cross-dressing was a central component of nineteenth-century urban life”), 60 (describing how cross-dressing laws “denoted a tightening of the bounds of normative gender, pushing previously tolerated cross-dressing and commercial sex practices to the margins, as acts that no longer belonged in everyday public life”).

      [140].     Heaney 2017, supra note 39, at 7.

      [141].     Id. at 9.

      [142].     Id. at 30.

      [143].     Sears, supra note 32, at 29.

      [144].     See id. at 27.

      [145].     See id. at 28–29.

      [146].     See id. at 29–32.

      [147].     See id. at 32–34.

      [148].     See id. at 34 (quoting Albert Richardson’s assertion in 1867 that “where female labor is scarce [a Chinese man] proves unrivaled at nursing, cooking, washing and ironing”).

      [149].     See Heaney 2017, supra note 39, at 246-47, 252.

      [150].     See Levi & Barry, supra note 95, at 597 (“Whether by intent or application, [cross-dressing] laws often rendered transgender people invisible by forbidding them from participating in public life.”).

      [151].     Sears, supra note 32, at 76.

      [152].     See id. at 139.

      [153].     See id. at 67 (“In San Francisco nuisance law targeted four sets of problem bodies: cross-dressers, [sex workers], disabled beggars, and Chinese immigrants.”).

      [154].     See id. at 14.

      [155].     Id. at 76.

      [156].     See Richard M. Juang, Transgendering the Politics of Recognition, in Transgender Rights, supra note 39, at 242, 242 (“An existence restricted to purely private expressions of the self, to the closet, becomes corrosive.”); Sears, supra note 32, at 73–74, 83 (“Although formal responsibility for cross-dressing law enforcement rested with the police, concerned city residents joined the pursuit, developing their own forms of surveillance and reporting ‘suspiciously’ gendered characters to the police.”).

      [157].     See Sears, supra note 32, at 76–77.

      [158].     See Stryker, supra note 40, at 152.

      [159].     See Jim Robbins, Remy Tumin & Jacey Fortin, Montana G.O.P. Bars Transgender Lawmaker from House Floor, N.Y. Times (Apr. 26, 2023), https://www.nytimes.com/2023/04/26/us/zooey-zephyr-transgender-montana-house.html [https://perma.cc/X7TU-QTQG]; Zooey Zephyr, Montana’s First Trans Lawmaker, Speaks Out After Being Banned & Silenced by Republicans, Democracy Now! (Apr. 28, 2023), https://www.democracynow.org/2023/4/28/zooey_zephyr_montana [https://perma.cc/MU5P-KSF2].

      [160].     Orion Rummler, Oklahoma Legislature Censures Nonbinary Lawmaker as Proposed Gender-Affirming Care Bans Move Forward, 19th (Mar. 8, 2023), https://19thnews.org/2023/03/oklahoma-censures-nonbinary-lawmaker-mauree-turner/ [https://perma.cc/BT29-A4KC].

      [161].     See Alfaro & Sotomayor, supra note 127; H.R. Res. 1579, 118th Cong. (2024); Monica Sager, Nancy Mace Has Posted 326 Times in Last 72 Hours About Bathrooms, Newsweek (Nov. 21, 2024), https://www.newsweek.com/nancy-mace-social-media-post-transgender-bathroom-1989530 [https://perma.cc/L5XY-VMB4].

      [162].     171 Cong. Rec. H26 (Jan. 3, 2025) (announcement by the Speaker pro tempore on the Use of Chamber and Capitol Facilities).

      [163].     See Sears, supra note 32, at 3.

      [164].     See id. at 77.

      [165].     See id.

      [166].     See Franke, supra note 42, at 99.

      [167].     See Equality Florida, supra note 75 (excerpting a video of State Representative Barnaby describing gender-variant people as “demons and imps who come and parade before us and pretend that [they] are part of this world”).

      [168].     See Capers, supra note 70, at 9 (“[A]n answer was demanded: male or female.”).

      [169].     See Franke, supra note 42, at 61 (“Those people who present themselves in a way that conflicts with, or at a minimum draws into question, the epiphenomenal relationship between sex and gender are either punished for trying to get away with something or pathologized as freaks.”).

      [170].     See Sears, supra note 32, at 80–93.

      [171].     See id. at 80; see also Doe v. McConn, 489 F. Supp. 76, 79 (S.D. Tex. 1980) (“In determining whether or not a person is dressing as that of the opposite sex, the person is required to disrobe.”).

      [172].     See Sears, supra note 32, at 80–82; see also People v. Simmons, 357 N.Y.S.2d 362, 363 (N.Y. Crim. Ct. 1974) (“The defendant is a male. When arrested he wore a woman’s wig, dress, makeup and shoes. Following arrest he was searched, and his true sex was discovered.” (emphasis added)).

      [173].     See Sears, supra note 32, at 80.

      [174].     See id. at 86; Redburn, supra note 70, at 692–93.

      [175].     See Sears, supra note 32, at 92.

      [176].     See id.

      [177].     Id. at 98.

      [178].     Id. at 100.

      [179].     Id. at 97, 101.

      [180].     See id. at 102–03.

      [181].     See id. at 103–04.

      [182].     See id. at 107.

      [183].     See id. at 110.

      [184].     See id. at 105–111.

      [185].     See id. at 114.

      [186].     Id.

      [187].     Janet Mock, Redefining Realness xiv, 253, 255 (2014).

      [188].     Id. at 171.

      [189].     See Kelley J. Hall & Betsy Lucal, Tapping into Parallel Universes: Using Superhero Comic Books in Sociology Courses, 27 Teaching Socio. 60, 63 (1999).

      [190].     See Velocci, supra note 41, at 112.

      [191].     Shoshana Zuboff, Surveillance Capitalism or Democracy? The Death Match of Institutional Orders and the Politics of Knowledge in Our Information Civilization, 3 Org. Theory 1, 24 (2022) [hereinafter Zuboff 2022].

      [192].     See Archived X Search for “Transgender”, X (Jan. 25, 2024), https://archive.org/details/screenshot-2024-01-25-at-10.12.35-pm_202402 [https://perma.cc/92XC-MQZU].

      [193].     Id.

      [194].     Id.

      [195].     Id.

      [196].     See id.

      [197].     See Safiya Umoja Noble, Algorithms of Oppression 19 (2018) (screenshotting the first page of Google search results for “black girls” on September 18, 2011, which included a link to “sugaryblackpussy.com/” in the first spot).

      [198].     See id. at 18, 36.

      [199].     See id. at 31–32.

      [200].     See id. at 6 (“In each case, Google’s position is that it is not responsible for its algorithm and that problems with the results would be quickly resolved.”).

      [201].     See Archived Google Search for “Black Girls”, Google (Feb. 11, 2024), https://web.archive.org/web/20240211175928/https://www.google.com/search?client=safari&rls=en&q=black+girls&ie=UTF-8&oe=UTF-8#ip=1 [https://perma.cc/H236-QKXP].

      [202].     Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, 131 Harv. L. Rev. 1598, 1620–21 (2018) (quoting another source).

      [203].     See GLAAD, Social Media Safety Index 13 (2023) [hereinafter GLAAD 2023], https://assets.glaad.org/m/7adb1180448da194/original/Social-Media-Safety-Index-2023.pdf [https://perma.cc/QFM8-7SD3]; Alex Woodward, Elon Musk Promotes Transphobic Content as Hate Speech Surges on His Far-Right Platform, Independent (June 5, 2023), https://www.the-independent.com/news/elon-musk-twitter-transgender-hate-speech-b2351923.html [https://perma.cc/X6ZD-4DBG].

      [204].     See Charlie Warzel, Twitter Is a Far-Right Social Network, Atlantic (May 23, 2023), https://www.theatlantic.com/technology/archive/2023/05/elon-musk-ron-desantis-2024-twitter/674149/ [https://perma.cc/FSE2-CJWK]; Matt O’Brien & Barbara Ortutay, Musk’s Twitter Disbands Its Trust and Safety Advisory Group, Assoc. Press (Dec. 13, 2022), https://apnews.com/article/elon-musk-twitter-inc-technology-business-a9b795e8050de12319b82b5dd7118cd7 [https://perma.cc/X72R-MHZL]; Thomas Brewster, Musk’s X Fired 80% of Engineers Working on Trust and Safety, Australian Government Says, Forbes (Jan. 10 2024), https://www.forbes.com/sites/thomasbrewster/2024/01/10/elon-musk-fired-80-per-cent-of-twitter-x-engineers-working-on-trust-and-safety/?sh=5053ac9d79b3 [https://perma.cc/BZA5-A9XE].

      [205].     Ctr. for Countering Digit. Hate, Toxic Twitter 1 (Feb. 9, 2023), https://counterhate.com/wp-content/uploads/2023/03/Toxic-Twitter-II-Final-Report.pdf [https://perma.cc/7PF5-SATH].

      [206].     Id. at 1, 3–4.

      [207].     See GLAAD 2023, supra note 203, at 31; GLAAD, Social Media Safety Index 6 (2021), https://assets.glaad.org/m/5eba7ae7cc159bae/original/2021-GLAAD-Social-Media-Safety-Index.pdf [https://perma.cc/9W9B-PP98].

      [208].     See Anti-Defamation League, Online Hate and Harassment 15 (June 11, 2024), https://www.adl.org/sites/default/files/documents/2024-06/online-hate-and-harassment-the-american-experience-v2024.pdf [https://perma.cc/2CJU-Z89T] (stating that “LGBTQ+ people continued to experience the highest rates of harassment among marginalized groups” and reporting that rates of harassment were higher for transgender adults than for LGBTQ+ people, generally); see also Anti-Defamation League, Online Hate and Harassment 20 (June 27, 2023), https://www.adl.org/sites/default/files/pdfs/2023-12/Online-Hate-and-Harassmen-2023_0_0.pdf [https://perma.cc/2PHF-S8ZY] (stating that “[t]ransgender [p]eople [e]xperienced the [m]ost [h]arassment of [a]ny [d]emographic [c]ategory”); UltraViolet, GLAAD, Kairos & Women’s March, From URL to IRL 22 (2022), https://weareultraviolet.org/from-url-to-irl-the-impact-of-social-media-on-people-of-color-women-and-lgbtq-communities-by-ultraviolet-glaad-kairos-womens-march [https://perma.cc/8WGY-BKWL] (noting that 60 percent of LGBTQ+ survey respondents reported experiencing harm from witnessing targeted harassment of public LGBTQ+ figures).

      [209].     Olivia Little, TikTok’s Recommendation Algorithm is Promoting Homophobia and Anti-Trans Violence, Media Matters for Am. (May 18, 2021), https://www.mediamatters.org/tiktok/tiktoks-recommendation-algorithm-promoting-homophobia-and-anti-trans-violence [https://perma.cc/4ZBL-FTQM].

      [210].     See GLAAD, Unsafe (Mar. 2024) [hereinafter Unsafe], https://glaad.org/smsi/report-meta-fails-to-moderate-extreme-anti-trans-hate-across-facebook-instagram-and-threads/ [https://perma.cc/F4U3-SZ6D]; Hateful Conduct, Meta (Jan. 8, 2025), https://transparency.meta.com/en-gb/policies/community-standards/hateful-conduct/ [https://perma.cc/G6R5-LWLE].

      [211].     Misinformation on Bard, Google’s New AI Chat, Ctr. For Countering Digit. Hate (Apr. 5, 2023), https://counterhate.com/research/misinformation-on-bard-google-ai-chat/ [https://perma.cc/LU6V-N634].

      [212].     For examples of YouTube, Facebook, and Google results, see infra notes 213-215. For Reddit results, see Archived Reddit Search for “Transgender”, Reddit (Feb. 11, 2024), https://archive.org/details/screenshot-2024-02-11-at-9.34.46-am [https://perma.cc/3GY4-SLQC].

      [213].     Archived YouTube Search for “Transgender”, YouTube (Feb. 11, 2024), https://archive.org/details/screenshot-2024-02-11-at-10.06.54-am [https://perma.cc/W8GJ-VY4U].

      [214].     Archived Facebook Search for “Transgender”, Facebook (Feb. 11, 2024), https://archive.org/details/screenshot-2024-02-11-at-9.43.00-am [https://perma.cc/2299-A8FB].

      [215].     Archived Google Search for “Transgender”, Google (Feb. 11, 2024), https://web.archive.org/web/20240211162549/https://www.google.com/search?q=transgender&client=safari&sca_esv=3165b152171cb470&ei=1PTIZf38Gc_HkPIPxeWH6Ao&ved=0ahUKEwj9trnO2aOEAxXPI0QIHcXyAa0Q4dUDCA8&uact=5&oq=transgender&gs_lp=Egxnd3Mtd2l6LXNlcnAiC3RyYW5zZ2VuZGVySM4BUABYAHABeAGQAQCYAQCgAQCqAQC4AQPIAQDiAwQYACBBiAYB&sclient=gws-wiz-serp#ip=1 [https://perma.cc/P6SK-XFY8].

      [216].     See Meta Profits off Hateful Advertising, Anti-Defamation League (Oct. 28, 2022), https://www.adl.org/resources/blog/meta-profits-hateful-advertising [https://perma.cc/5CW6-NQN8]; see also Oliver Haug, Facebook Is Making Millions off Matt Walsh’s Transphobic Documentary, Xtra Mag. (Oct. 19, 2022), https://xtramagazine.com/power/facebook-meta-profiting-off-transphobic-documentary-237936 [https://perma.cc/KTR7-HBKM] (reporting that Meta has earned between $4 million and $5 million by advertising a transphobic documentary).

      [217].     Ekō, Monetizing Hate 5 (Oct. 10, 2023), https://aks3.eko.org/images/Eko_Report_LGBTQ_YouTube.pdf [https://perma.cc/G45Z-YMT8].

      [218].     Camden Carter, Meta Has Profited from Millions in Ad Revenue from The Daily Wire’s Anti-Trans Campaign, Media Matters for Am. (Mar. 10, 2023), https://www.mediamatters.org/daily-wire/meta-has-profited-millions-ad-revenue-daily-wires-anti-trans-campaign [https://perma.cc/J5U6-X5A4].

      [219].     For data on each version of the advertisement, which played from November 2022 to September 2023, see Ad Library, Meta, https://www.facebook.com/ads/library/?id=​1370276457157006 [https://perma.cc/KKU3-BZCN]; Ad Library, Meta, https://www.facebook.com/​ads/library/?id=587926513480473 [https://perma.cc/K8SG-AZB7]; Ad Library, Meta, https://www.facebook.com/ads/library/?id=753546979509294 [https://perma.cc/UJR7-WKZ7]; Ad Library, Meta, https://www.facebook.com/ads/library/?id=179957548272471 [https://perma.cc/N82L-LBTK]; Ad Library, Meta, https://www.facebook.com/ads/library/?id=​732226055062828 [https://perma.cc/KS3A-3L9D]; Ad Library, Meta, https://www.facebook.com/​ads/library/?id=573225364821544 [https://perma.cc/DM75-E7MC]; Ad Library, Meta, https://www.facebook.com/ads/library/?id=680351463617786 [https://perma.cc/Q5RX-532M]; Ad Library, Meta, https://www.facebook.com/ads/library/?id=661473552084220 [https://perma.cc/SRQ8-2249]; Ad Library, Meta, https://www.facebook.com/ads/library/?id=​544214347043010 [https://perma.cc/T8RP-XSAC]; Ad Library, Meta, https://www.facebook.com/​ads/library/?id=481662443971872 [https://perma.cc/8PFJ-SNZS]; Ad Library, Meta, https://www.facebook.com/ads/library/?id=3379719345650557 [https://perma.cc/ZA6K-8TSM].

      [220].     See HRC Staff, BREAKING: In Final Weeks of Election, Extremist Candidates, Anti-LGBTQ+ Orgs Funnel Tens of Millions of Dollars in Ads Attacking Trans Youth, Targeting Black and Spanish-Speaking Voters, Hum. Rts. Campaign (Oct. 28, 2022), https://www.hrc.org/press-releases/breaking-in-final-weeks-of-election-extremist-candidates-anti-lgbtq-orgs-funnel-tens-of-millions-of-dollars-in-ads-attacking-trans-youth-targeting-black-and-spanish-speaking-voters [https://perma.cc/J7YU-P74A].

      [221].     Zane McNeill, Republicans Spent Nearly $215M on TV Ads Attacking Trans Rights This Election, Truthout (Nov. 5, 2024), https://truthout.org/articles/republicans-spent-nearly-215m-on-tv-ads-attacking-trans-rights-this-election/ [https://perma.cc/D5TE-BH5D].

      [222].     See Adam Nagourney & Nicholas Nehamas, Harris Loss Has Democrats Fighting over How to Talk About Transgender Rights, N.Y. Times (Nov. 20, 2024), https://www.nytimes.com/2024/11/20/us/politics/presidential-campaign-transgender-rights.html [https://perma.cc/Z9WH-2EGH].

      [223].     See Press Release, S. Poverty L. Ctr., SPLC Report Exposes Network Behind Junk Science and Disinformation Campaign Against the LGBTQ+ Community (Dec. 12, 2023) (quoting R.G. Cravens, a senior research analyst for SPLC’s Intelligence Project), https://www.splcenter.org/presscenter/splc-report-exposes-network-behind-junk-science-and-disinformation-campaign-against [https://perma.cc/7DBJ-8CLG].

      [224].     See Shoshana Zuboff, The Age of Surveillance Capitalism 2 (2019) [hereinafter Zuboff 2019].

      [225].     See Pub. Religion Rsch. Inst., The Politics of Gender, Pronouns, and Public Education 9 (2023), https://www.prri.org/wp-content/uploads/2023/06/PRRI-May-2023-politics-gender.pdf [https://perma.cc/PM5H-QEFN] (reporting that 63 percent of people in the United States say they do not know anyone who is transgender and 62 percent say they do not know anyone who uses gender-neutral pronouns); see also Anna Brown, About 5% of Young Adults in the U.S. Say Their Gender Is Different from Their Sex Assigned at Birth, Pew Rsch. Ctr. (June 7, 2022), https://www.pewresearch.org/short-reads/2022/06/07/about-5-of-young-adults-in-the-u-s-say-their-gender-is-different-from-their-sex-assigned-at-birth/ [https://perma.cc/K5PU-D4DV] (reporting that 44 percent of adults in the United States say they personally know someone who is transgender, and 20 percent know someone who is nonbinary).

      [226].     See Zuboff 2019, supra note 224, at 115 (describing how both Google and the government “craved certainty and were determined to fulfill that craving in their respective domains at any price”).

      [227].     Tarnoff, supra note 26, at 6, 9.

      [228].     See id. at xiii; see also Noble, supra note 197, at 154 (describing how the internet moved “from a publicly funded, military-academic project to a full-blown commercial endeavor”).

      [229].     Tarnoff, supra note 26, at x–xi.

      [230].     Id. at xi.

      [231].     See id. at xiii.

      [232].     See Victor Pickard & David Elliot Berman, After Net Neutrality 59 (2019).

      [233].     See Sandvine, Phenomena 10 (Jan. 2023), https://www.sandvine.com/hubfs/Sandvine_Redesign_2019/Downloads/2023/reports/Sandvine%20GIPR%202023.pdf [https://perma.cc/532M-8QGU]; Gennaro Cuofano, Facebook, Apple, Amazon, Microsoft, Netflix, and Google Business Models: How They Work & Make Money, FourWeekMBA (July 5, 2022), https://fourweekmba.com/facebook-apple-amazon-microsoft-netflix-and-google-business-models-how-they-work-make-money/ [https://perma.cc/M49L-WQD8] (reporting 2021 revenues of each company, which add up to approximately $1.406 trillion).

      [234].     See, e.g., President William J. Clinton & Vice President Albert Gore, Jr., A Framework for Global Electronic Commerce, https://clintonwhitehouse4.archives.gov/WH/New/Commerce/read.html [https://perma.cc/8KQ3-RPJ6] (describing the Clinton administration’s policy of encouraging “the creation of private fora to take the lead in areas requiring self-regulation such as privacy, content ratings, and consumer protection”).

      [235].     See Tarnoff, supra note 26, at 28; see also Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986 (2005) (upholding the Federal Communications Commission’s categorization of cable internet as an “information service” under the Telecommunications Act of 1996, exempting it from common carrier regulations applicable to “telecommunications services”).

      [236].     See Tarnoff, supra note 26, at 24–30.

      [237].     See id. at 19, 24–30.

      [238].     See 47 U.S.C. § 230(c)(1) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”), (c)(2) (“No provider or user of an interactive computer service shall be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected . . . .”) (2018).

      [239].     See, e.g., Jeff Kosseff, The Twenty-Six Words That Created the Internet 2 (2019).

      [240].     See Zuboff 2019, supra note 224, at 112 (“Section 230’s protection of the ‘intermediaries’ now functions as another bulwark that shelters this extractive surveillance capitalist operation from critical examination.”); see also Zuboff 2022, supra note 191, at 12 (“Th[e] surveillance dividend established the secret massive-scale extraction of human-generated data as the illegitimate, illicit and perfectly legal foundation of a new economic order. . . . [A]nd there was no law to stop it.”); Olivier Sylvain, Intermediary Design Duties, 50 Conn. L. Rev. 203, 208 (2018) (“[P]rofits in this context also are the spoils of a legal regime that effectively absolves online intermediaries from minding the harmful third-party user content that they host and repurpose for commercial gain. They are the benefits of a legal protection that almost no other entity in other legislative fields enjoys.”).

      [241].     See supra note 124; supra Part III introductory discussion.

      [242].     See Zuboff 2019, supra note 224, at 2.

      [243].     See Zuboff 2022, supra note 191, at 11; see also Zuboff 2019, supra note 224, at 72–74 (describing the financial conditions that prompted Google to develop surveillance revenue streams).

      [244].     Zuboff 2022, supra note 191, at 11.

      [245].     See id.; Zuboff 2019, supra note 224, at 96.

      [246].     Xiaoliang Ling, Weiwei Deng, Chen Gu, Hucheng Zhou, Cui Li & Feng Sun, Model Ensemble for Click Prediction in Bing Search Ads, Microsoft (Apr. 2017), https://www.microsoft.com/en-us/research/wp-content/uploads/2017/04/main-1.pdf [https://perma.cc/L26H-QTJP].

      [247].     See Zuboff 2022, supra note 191, at 12.

      [248].     See Tarnoff, supra note 26, at 87; see also Zuboff 2019, supra note 224, at 92 (describing how Meta hired former Google executive Sheryl Sandberg to help monetize the company’s “awe-inspiring source of behavioral surplus,” which drove the company’s “transformation from a social networking site to an advertising behemoth”).

      [249].     Jeffrey Dunn, Introducing FBLearner Flow: Facebook’s AI Backbone, Eng’g at Meta (May 9, 2016), https://engineering.fb.com/2016/05/09/core-infra/introducing-fblearner-flow-facebook-s-ai-backbone/ [https://perma.cc/957V-829K].

      [250].     See Zuboff 2019, supra note 224, at 96 (explaining that “new prediction systems are only incidentally about ads” and “can be applied to many other domains”), 293 (describing “a new phase of the prediction imperative that emphasizes economies of action”), 339 (explaining that economies of action are powered by “an elaborate new means of behavioral modification”).

      [251].     Id. at 202, 299–309.

      [252].     Id. at 296.

      [253].     Robert M. Bond, Christopher J. Fariss, Jason J. Jones, Adam D. I. Kramer, Cameron Marlow, Jaime E. Settle & James H. Fowler, A 61-Million-Person Experiment in Social Influence and Political Mobilization, 489 Nature 295, 295 (2012).

      [254].     See Zuboff 2019, supra note 224, at 280–81.

      [255].     See Michael Scherer & Josh Dawsey, Inside the Republican False-Flag Effort to Turn Off Kamala Harris Voters, Wash. Post (Nov. 15, 2024), https://www.washingtonpost.com/politics/​2024/11/15/republican-ads-false-flag/ [https://perma.cc/RVA8-RQWT].

      [256].     See Zuboff 2022, supra note 191, at 13 (“Every product called ‘smart’ and every service called ‘personalized’ are now loss leaders for the human data that flow through them.”); see also Tarnoff, supra note 26, at 110 (“The internet was no longer something people logged onto but something that was always on: fastened to your hand or wrist or pocket, woven through homes and workplaces and cities. ‘Smartness’ came to saturate the spaces of everyday life.”).

      [257].     See Big Data: Privacy Risks and Needed Reforms in the Pub. and Priv. Sectors: Hearing Before the Comm. on H. Admin., 117th Cong. 5 (Feb. 16, 2022) [hereinafter Big Data] (testimony of Shoshana Zuboff, Professor, Harvard University Graduate School of Business Administration).

      [258].     Zuboff 2019, supra note 224, at 8 (emphasis omitted).

      [259].     See Comment Letter on Commercial Surveillance ANPR, R1111004, from Max Sevillia, Anti-Defamation League, to the Federal Trade Commission (Nov. 22, 2022), https://www.adl.org/sites/default/files/pdfs/2022-11/Commercial-Surveillance-ANPR-R111004-ADL-3.pdf [https://perma.cc/85RM-P7FW]; see also Zuboff 2019, supra note 224, at 80–81 (“Google’s invention revealed new capabilities to infer and deduce the thoughts, feelings, intentions, and interests of individuals and groups with an automated architecture that operates as a one-way mirror irrespective of a person’s awareness, knowledge, and consent . . . .”); Nathalie Maréchal, Rebecca MacKinnon & Jessica Dheere, Ranking Digit. Rts., Getting to the Source of Infodemics 26 (“[C]ompanies whose business models rely on targeted advertising have every incentive to hoover up every crumb of data they can access, and to create more opportunities to surveil our daily behavior.”), 32 (“[A]s things stand, targeted advertising companies are free to collect virtually any information they want to, and use it however it benefits their bottom line.”), 33 (“If Facebook can capture a piece of information about you, it does.”) (May 26, 2020), https://rankingdigitalrights.org/wp-content/uploads/2023/07/Getting_to_the_Source_of_Infodemics_​Its_the_Business_Model_2020-05.pdf [https://perma.cc/36SW-66RD]; Amnesty Int’l, Surveillance Giants 20 (Nov. 21, 2019), https://www.amnesty.org/en/documents/pol30/1404/2019/en/ [https://perma.cc/C3GK-R62X] (describing how the “aggregation of so much data, combined with the use of sophisticated data analysis tools” allows companies to “know virtually everything about an individual”).

      [260].     Douglas Edwards, I’m Feeling Lucky 291 (2011).

      [261].     Zuboff 2019, supra note 224, at 98–99 (citing Karl Polanyi’s narrative of “great transformation” and Karl Marx’s theory of “primitive accumulation”).

      [262].     Id. at 100.

      [263].     See Luke Munn, Angry by Design: Toxic Communication and Technical Architectures, 7 Humanit. & Soc. Sci. Commc’ns 1, 8 (2020) (“The prime directive of engagement, for example, is driven by monetization.”); Zuboff 2022, supra note 224, at 24 (“The aim is always to widen and accelerate the inextricable cycle of engagement> extraction> prediction> revenue . . . .”).

      [264].     See Tobias Rose-Stockwell, Outrage Machine 31 (“A key principle of social media is that fast-spreading information tends to be false.”), 84 (“On social media, our attention naturally curves toward the unacceptable, the outrageous, and the extreme, all without external help. Algorithms that optimize for engagement are simply giving us what we ‘want.’”), 212 (“[A]dvertising incentives brought us sensationalism.”) (2023); see also Zoe Williams, Racism, Misogyny, Lies: How Did X Become So Full of Hatred? And Is It Ethical to Keep Using It?, The Guardian (Sept. 5, 2024) (quoting another source), https://www.theguardian.com/technology/article/2024/sep/05/racism-misogyny-lies-how-did-x-become-so-full-of-hatred-and-is-it-ethical-to-keep-using-it [https://perma.cc/6G23-2DMP] (describing how “high-attention” posts on X that attack transgender people “go straight to the top of the For You feed, driven by a ‘black box algorithm designed to keep you scrolling’”).

      [265].     Kai Riemer & Sandra Peter, Algorithmic Audiencing: Why We Need to Rethink Free Speech on Social Media, 36 J. Info. Tech. 409, 412 (2021); see Zuboff 2019, supra note 224, at 510 (“[P]rediction products favor content designed to magnetize engagement.”).

      [266].     Tarnoff, supra note 26, at 143–44.

      [267].     See Karen Hao, How Facebook Got Addicted to Spreading Misinformation, MIT Tech. Rev. (Mar. 11, 2021), https://www.technologyreview.com/2021/03/11/1020600/facebook-responsible-ai-misinformation/ [https://perma.cc/3LE4-8BVP] (“If a model reduces engagement too much, it’s discarded. Otherwise, it’s deployed and continually monitored.”); see also Zuboff 2019, supra note 224, at 505 (describing how “content is judged by its volume, range, and depth of surplus as measured by the ‘anonymous’ equivalence of clicks, likes, and dwell times”).

      [268].     Ryan Mac, Charlie Warzel & Alex Kantrowitz, Growth at Any Cost: Top Facebook Executive Defended Data Collection in 2016 Memo — and Warned That Facebook Could Get People Killed, BuzzFeed News (Mar. 29, 2018), https://www.buzzfeednews.com/article/ryanmac/growth-at-any-cost-top-facebook-executive-defended-data [https://perma.cc/3MDH-W4SS].

      [269].     TikTok Ads Break Through Better Than TV and Drive Greater Audience Engagement, TikTok, https://www.tiktok.com/business/library/TikTokDrivesGreaterAudienceEngagement.pdf [https://perma.cc/HU75-7JUZ].

      [270].     Bobby Allyn, Sylvia Goodman & Dara Kerr, TikTok Executives Know About App’s Effect on Teens, Lawsuit Documents Allege, NPR (Oct. 11, 2024) (quoting TikTok’s research), https://www.npr.org/2024/10/11/g-s1-27676/tiktok-redacted-documents-in-teen-safety-lawsuit-revealed [https://perma.cc/G3F8-LCMC].

      [271].     See Hilarie Cash, Cosette D. Rae, Ann H. Steel & Alexander Winkler, Internet Addiction: A Brief Summary of Research and Practice, 8 Current Psychiatry Rev. 292, 293 (2012); see also Amnesty Int’l, supra note 259, at 29 (“The platforms are designed, in short, to be addictive.”).

      [272].     See Alice Marwick & Rebecca Lewis, Data & Soc’y, Media Manipulation and Disinformation Online 42 (May 15, 2017), https://datasociety.net/pubs/oh/DataAndSociety_MediaManipulationAndDisinformationOnline.pdf [https://perma.cc/A3PS-R3SX]; Brief of Anti-Defamation League as Amicus Curiae in Support of Neither Party at 9, Gonzalez v. Google LLC, 598 U.S. 617 (2023) (No. 21-1333) [hereinafter Gonzalez Brief]; see also Soroush Vosoughi, Deb Roy & Sinan Aral, The Spread of True and False News Online, 359 Science 1146, 1146 (2018) (concluding that “[f]alsehood diffused significantly farther, faster, deeper, and more broadly than the truth in all categories of information” in a study of all verified true and false news stories distributed on X between 2006 and 2017).

      [273].     Munn, supra note 263, at 2.

      [274].     Mainstreaming Extremism: Social Media’s Role in Radicalizing America: Hearing Before the Subcomm. on Consumer Prot. and Com. of the H. Comm. on Energy and Com., 116th Cong. (Sept. 24, 2020) (testimony of Tim Kendall, CEO, Moment).

      [275].     Id.

      [276].     Letter from John N. Tye, Chief Disclosure Officer, Whistleblower Aid, and Andrew Bakaj, Of Counsel, Whistleblower Aid, to Sec. & Exch. Comm’n Office of the Whistleblower 10 [hereinafter Meta Whistleblower Letter] (emphasis omitted), https://facebookpapers.com/sec-documents/ [https://perma.cc/3TBX-8MUG].

      [277].     See Laura Edelson, Minh-Kha Nguyen, Ian Goldstein, Oana Goga, Tobias Lauinger & Damon McCoy, Far-Right News Sources on Facebook More Engaging, Medium (Mar. 3, 2021), https://medium.com/cybersecurity-for-democracy/far-right-news-sources-on-facebook-more-engaging-e04a01efae90 [https://perma.cc/Z7XQ-M4TG]; see also Zuboff 2022, supra note 191, at 24 (asserting that “right-wing misinformation is consistently privileged” because the far right generates the bulk of misinformation and misinformation is generally more engaging than reliable information).

      [278].     Edelson et al., supra note 277.

      [279].     Id.

      [280].     See Zoledziowski, supra note 35; see also Nagourney & Peters, supra note 25.

      [281].     Brianna January, The Right Is Dominating Facebook Engagement on Content About Trans Issues, Media Matters for Am. (July 20, 2020), https://www.mediamatters.org/facebook/right-dominating-facebook-engagement-content-about-trans-issues [https://perma.cc/APE5-NNAV].

      [282].     Id.

      [283].     A Snapshot of Anti-Trans Hatred in Debates Around Transgender Athletes, Inst. For Strategic Dialogue (Jan. 20, 2022), https://www.isdglobal.org/digital_dispatches/anti-trans-hatred-against-athletes-highlights-policy-failures-facebook-twitter/ [https://perma.cc/A6S7-2ZJ6].

      [284].     Id.

      [285].     See supra Parts I, II.

      [286].     Gonzalez Brief, supra note 272, at 3.

      [287].     Id.; see also Munn, supra note 263, at 7 (critiquing an analysis that “presupposes an offline, radicalized audience with their minds already made up,” which fails to “register the psychological and cognitive force exerted by platform environments”).

      [288].     See Benjamin, supra note 28, at 62 (describing how robots “learn to speak the coded language of their human parents”); see also Hao, supra note 267 (“An algorithm trained on ad click data, for example, might learn that women click on ads for yoga leggings more often than men. The resultant model will then serve more of those ads to women.”).

      [289].     Tarnoff, supra note 26, at 136.

      [290].     Maréchal et al., supra note 259, at 20; see also Olivia Little & Abbie Richards, TikTok’s Algorithm Leads Users from Transphobic Videos to Far-Right Rabbit Holes, Media Matters for Am. (Oct. 5, 2021), https://www.mediamatters.org/tiktok/tiktoks-algorithm-leads-users-transphobic-videos-far-right-rabbit-holes [https://perma.cc/YGX4-RC65] (reporting that “[e]xclusive interaction with anti-trans content spurred TikTok to recommend misogynistic content, racist and white supremacist content, anti-vaccine videos, antisemitic content, ableist narratives, conspiracy theories, hate symbols, and videos including general calls to violence”).

      [291].     Benjamin, supra note 28, at 59.

      [292].     See Sears, supra note 32, at 80 (noting that “cross-dressing law operated through . . . strategies of looking and display, amplifying the visibility of cross-dressing bodies as troubling nuisances and fascinating freaks”).

      [293].     See id. at 19.

      [294].     See supra notes 96, 100, 243, 259; see also Sears, supra note 32, at 80 (describing how cross-dressing laws “demanded a particularly intimate surveillance of suspects’ bodies . . . [that] promised to reveal the truth of cross-dressing crimes and restore legible, knowable, binary gender”).

      [295].     Supra Part II.

      [296].     See Brown, supra note 225 (reporting that 1.6 percent of adults in the United States are transgender or nonbinary, 44 percent of adults in the United States know someone who is transgender, and 20 percent of adults in the United States know someone who is nonbinary).

      [297].     See Merging Pseudoscience and Politics, S. Poverty L. Ctr. (Dec. 12, 2023), https://www.splcenter.org/captain/pseudoscience-politics [https://perma.cc/6NWK-GZGU]; Aoife Gallagher & Tim Squirrell, The ‘Groomer’ Slur, Inst. for Strategic Dialogue (Jan. 16, 2023), https://www.isdglobal.org/explainers/the-groomer-slur [https://perma.cc/KG2U-MXFL] (attributing the mainstreaming of the “grooming” slur to the “ability of fringe actors to manipulate the general public’s lack of knowledge of queer culture and particularly their insensitivity to the plight of trans people”).

      [298].     Benjamin, supra note 28, at 110.

      [299].     Zeynep Tufekci, YouTube, the Great Radicalizer, N.Y. Times (Mar. 10, 2018), https://www.nytimes.com/2018/03/10/opinion/sunday/youtube-politics-radical.html [https://perma.cc/5R8L-EXDN].

      [300].     See Sears, supra note 32, at 80.

      [301].     Beauchamp, supra note 91, at 2.

      [302].     Virginia Eubanks, Automating Inequality 9–10, 232 (2018) (quoting a participant who chose to remain anonymous in a study investigating the “impacts of high-tech sorting and monitoring systems on poor and working-class people”).

      [303].     See David Marchese, Alok Vaid-Menon Is ‘Fighting for Trans Ordinariness’, N.Y. Times Mag. (July 27, 2023), https://www.nytimes.com/interactive/2023/07/29/magazine/alok-vaid-menon-interview.html [https://perma.cc/6F45-EDDY] (excerpting from an interview with Vaid-Menon).

      [304].     See id.

      [305].     See Zuboff 2022, supra note 191, at 8; Simone Unwalla, Profiting from Moral Panic, Flaw (Jan. 21, 2024), https://theflaw.org/articles/profiting-from-moral-panic/ [https://perma.cc/RLP5-3R5H].

      [306].     See Social Media and News Fact Sheet, Pew Rsch. Ctr. (Sept. 17, 2024), https://www.pewresearch.org/journalism/fact-sheet/social-media-and-news-fact-sheet/ [https://perma.cc/DJ8U-HKW7] (reporting that 25, 29, and 18 percent of adults in the United States get news from social media often, sometimes, and rarely, respectively).

      [307].     Rose-Stockwell, supra note 264, at 58.

      [308].     See id.

      [309].     Arvind Narayanan & Dillon Reisman, The Princeton Web Transparency and Accountability Project, in Transparent Data Mining for Big and Small Data 45, 57 (Tania Cerquitelli, Daniele Quercia & Frank Pasquale eds., 2017).

      [310].     See Noble, supra note 197, at 154; Marwick & Lewis, supra note 272, at 42; see also Meta Whistleblower Letter, supra note 276, at 10 (quoting Meta’s admission that by “changing the face of advertising, we’ve also (perhaps inadvertently) changed the rules by which narratives are delivered to people via the news and communications media”); Narayanan & Reisman, supra note 309, at 51 (describing how The New York Times tests different versions of headlines to evaluate which ones receive the most clicks).

      [311].     Naomi Klein, Doppelganger 242 (2023).

      [312].     Unwalla, supra note 305 (quoting another source).

      [313].     See Editor’s Note, Bos. Globe (Aug. 3, 2024), https://www.bostonglobe.com/2024/08/03/sports/editors-note/ [https://perma.cc/WQZ3-NKNW]; Rachel Pannett & Victoria Bisset, What to Know About Olympic Boxer Imane Khelif’s Cyberbullying Complaint, Wash. Post (Aug. 15, 2024), https://www.washingtonpost.com/sports/olympics/2024/08/15/imane-khelif-cyberbullying-complaint/ [https://perma.cc/8A3S-W9ZB]; David K. Li, Minyvonne Burke & Rima Abdelkader, Imane Khelif Wins Fight and Declares, ‘I Want to Tell the Entire World That I Am a Female’, NBC News (Aug. 3, 2024), https://www.nbcnews.com/news/sports/totally-unacceptable-gender-identity-dispute-surrounding-boxers-lin-yu-rcna164995 [https://perma.cc/59CV-8ACH].

      [314].     See Editor’s Note, supra note 313; Samantha Riedel, Imane Khelif Files Legal Complaint Naming J.K. Rowling and Elon Musk for Cyberbullying, Them (Aug. 14, 2024), https://www.them.us/story/imane-khelif-legal-complaint-cyberbullying-jk-rowling-elon-musk-x [https://perma.cc/HT2F-9E78].

      [315].     Riedel, supra note 314; Daniel Dale, Fact Check: Trump Repeats Lie That Champion Olympic Women’s Boxers ‘Transitioned’, CNN (Feb. 5, 2025), https://www.cnn.com/2025/02/05/politics/olympic-womens-boxers-transitioned-trump-fact-check/index.html [https://perma.cc/8T3G-4BLB].

      [316].     Letter from N.Y. Times Contributors to Philip B. Corbett, Assoc. Managing Ed. for Standards, N.Y. Times (Feb 15, 2023) [hereinafter Letter from N.Y. Times Contributors], https://nytletter.com/ [https://perma.cc/P5YK-AEZY].

      [317].     Unwalla, supra note 305.

      [318].     Capturing The New York Times, TransLash (July 20, 2023), https://translash.org/podcasts/the-anti-trans-hate-machine/translash-presents-capturing-the-new-york-times/ [https://perma.cc/3MG3-3VUU].

      [319].     Id.

      [320].     See James Factora, The NYT’s Latest Op-Ed on Trans Kids Has Already Been Cited in an Anti-Trans Legal Brief, Them (Feb. 9, 2024) (quoting Strangio), https://www.them.us/story/new-york-times-detransition-youth-op-ed-pamela-paul-chase-strangio [https://perma.cc/N4WK-7PUY].

      [321].     See Serena Sonoma, The New York Times’ Inaccurate Coverage of Transgender People Is Being Weaponized Against the Transgender Community, GLAAD (Apr. 19, 2023), https://glaad.org/new-york-times-inaccurate-coverage-transgender-people-being-weaponized-against-transgender/ [https://perma.cc/9JDZ-9K6S]; Unwalla, supra note 305.

      [322].     See Appellant’s Opening Brief at 6, Poe v. Labrador, No. 24-142 (9th Cir. Feb. 6, 2024).

      [323].     See Sarah M. Thornton, Armin Edalatpour & Katherine M. Gast, A Systematic Review of Patient Regret After Surgery: A Common Phenomenon in Many Specialties but Rare Within Gender-Affirmation Surgery, 234 Am. J. Surgery 68, 72 (2024); see also Valeria P. Bustos, Samyd S. Bustos, Andres Mascaro, Gabriel Del Corral, Antonio J. Forte, Pedro Ciudad, Esther A. Kim, Howard N. Langstein & Oscar J. Manrique, Regret After Gender-affirmation Surgery: A Systematic Review and Meta-analysis of Prevalence, Plastic & Reconstructive Surgery - Glob. Open (Mar. 2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8099405/ [https://perma.cc/G3MM-LUFM] (describing the “extremely low prevalence of regret in transgender patients after” gender-affirmation surgeries at 1 percent).

      [324].     Roslyn S. Cassidy, Damien B. Bennett, David E. Beverland & Seamus O’Brien, Decision Regret After Primary Hip and Knee Replacement Surgery, 28 J. Orthopaedic Sci. 167, 167 (2023).

      [325].     Thornton et al., supra note 323, at 71.

      [326].     Id. at 69.

      [327].     Ana Wilson, Sean M. Ronnekleiv-Kelly & Timothy M. Pawlik, Regret in Surgical Decision Making: A Systematic Review of Patient and Physician Perspectives, 41 World J. Surgery 1454, 1454 (2017).

      [328].     Thornton et al., supra note 323, at 71–72.

      [329].     Id. at 72.

      [330].     Id.

      [331].     Id. at 71.

      [332].     Letter from N.Y. Times Contributors, supra note 316.

      [333].     Sam Jones & Roudabeh Kishi, UPDATE | Fact Sheet: Anti-LGBT+ Mobilization on the Rise in the United States, Armed Conflict Location & Event Data (Nov. 23, 2022), https://acleddata.com/2022/11/23/update-fact-sheet-anti-lgbt-mobilization-in-the-united-states/ [https://perma.cc/9DL4-UW7D].

      [334].     Delphine Luneau, FBI’s Annual Crime Report — Amid State of Emergency, Anti-LGBTQ+ Hate Crimes Hit Staggering Record Highs, Hum. Rts. Campaign (Oct. 16, 2023), https://www.hrc.org/press-releases/fbis-annual-crime-report-amid-state-of-emergency-anti-lgbtq-hate-crimes-hit-staggering-record-highs [https://perma.cc/V3SK-ZPAZ].

      [335].     See Andrew R. Flores, Ilan H. Meyer, Lynn Langton & Jody L. Herman, Gender Identity Disparities in Criminal Victimization: National Crime Victimization Survey, 2017–2018, 111 Am. J. Pub. Health 726, 728 (2021) (noting that “these were imprecise estimates with large standard errors”).

      [336].     The Trevor Project, supra note 17, at 13.

      [337].     See Confronting White Supremacy (Part VII): Hearing Before the Subcomm. on C.R. & C.L. of the H. Comm. on Oversight & Reform, 117th Cong. (Dec. 13, 2022) [hereinafter Confronting White Supremacy] (testimony of Alejandra L. Caraballo, Clinical Instructor, Harvard Law School); Online Harassment, supra note 11, at 4–16; Digital Hate, supra note 12, at 9; Introduction to Combating Anti-LGBTQ+ Pseudoscience, S. Poverty L. Ctr. (Dec. 12, 2023), https://www.splcenter.org/captain/introduction [https://perma.cc/NMN8-4SCJ]; Kimberly Adams & Jesús Alvarado, How Anti-Trans Hate Speech Online Leads to Real-World Violence, Marketplace Tech (Dec. 21, 2022), https://www.marketplace.org/shows/marketplace-tech/how-anti-trans-hate-speech-online-leads-to-real-world-violence/ [https://perma.cc/8JWV-5LZB] (excerpting from an interview with Erin Reed).

      [338].     Alyssa Tirrell & Kayla Gogarty, TIMELINE: The Impact of Libs of TikTok Told Through the Educators, Health Care Providers, Librarians, LGBTQ People, and Institutions That Have Been Harassed and Violently Threatened, Media Matters for Am. (Nov. 2, 2023), https://www.mediamatters.org/libs-tiktok/timeline-impact-libs-tiktok-told-through-educators-health-care-providers-librarians [https://perma.cc/4ATY-M6SS].

      [339].     Libs of TikTok (@libsoftiktok), X, https://x.com/libsoftiktok [https://perma.cc/SG9S-LLSU].

      [340].     See Bevan Hurley, Oklahoma Banned Trans Students from Bathrooms. Now Nex Benedict is Dead After a Fight at School, Independent (Feb. 20, 2024), https://www.independent.co.uk/news/world/americas/nex-benedict-dead-oklahoma-b2499332.html [https://perma.cc/EY9P-RA8H]; Jo Yurcaba & Matt Lavietes, Death of Transgender Student Nex Benedict Ruled Suicide by Medical Examiner, NBC News (Mar. 13, 2024), https://www.nbcnews.com/news/us-news/nex-benedict-suicide-death-oklahoma-student-lgbtq-rcna143298 [https://perma.cc/J42D-VU27].

      [341].     See Joby Warrick, Robert Klemko, Razzan Nakhlawi, Alice Crites & Cate Brown, LGBTQ Club Shooting Suspect’s Troubled Past Was Obscured by Name Change, Records Show, Wash. Post (Nov. 21, 2022), https://www.washingtonpost.com/national-security/2022/11/21/colorado-springs-qbar-shooter/ [https://perma.cc/8UYE-CFUX]; James Factora, The Alleged Club Q Shooter Ran a Neo-Nazi Website, According to Police, Them (Feb. 23, 2023), https://www.them.us/story/club-q-alleged-shooter-neo-naz-website [https://perma.cc/75G6-EQTH].

      [342].     See Confronting White Supremacy, supra note 337, at 1, 3.

      [343].     See, e.g., Bryn Nelson, How Stochastic Terrorism Uses Disgust to Incite Violence, Sci. Am. (Nov. 5, 2022), https://www.scientificamerican.com/article/how-stochastic-terrorism-uses-disgust-to-incite-violence/ [https://perma.cc/GQ6T-Y5EZ]; Helen Santoro, How Anti-LGBTQ+ Rhetoric Fuels Violence, Sci. Am. (Dec. 12, 2022), https://www.scientificamerican.com/article/how-anti-lgbtq-rhetoric-fuels-violence/ [https://perma.cc/GLQ8-35JD]; Rachel Janik, Colorado Springs: Far-Right Influencers Made LGBTQ People into Targets, S. Poverty L. Ctr. (Nov. 22, 2022), https://www.splcenter.org/hatewatch/2022/11/22/colorado-springs-far-right-influencers-made-lgbtq-people-targets [https://perma.cc/6E68-VTSM].

      [344].     Erin Reed (@ErinInTheMorn), X (Nov. 20, 2022), https://twitter.com/ErinInTheMorn/status/1594478599113003008 [https://perma.cc/LUG8-YGZ7].

      [345].     Gonzalez Brief, supra note 272, at 12.

      [346].     See Noble, supra note 197, at 110–12 (excerpting Roof’s manifesto).

      [347].     See Confronting White Supremacy, supra note 337, at 14–23.

      [348].     See Online Harassment, supra note 11, at 4–16.

      [349].     Letter from Am. Acad. of Pediatrics, Am. Med. Ass’n & Children’s Hosp. Ass’n. to Merrick Garland, Att’y Gen. (Oct. 3, 2022), https://downloads.aap.org/DOFA/DOJ%20Letter%20Final.pdf [https://perma.cc/M4E8-4K3W].

      [350].     See Nicholas Wu & Mia McCarthy, McBride Responds to Effort to Ban Transgender Women from Capitol Women’s Bathrooms, Politico (Nov. 18, 2024), https://www.politico.com/live-updates/2024/11/18/congress/mcbride-responds-to-capitol-bathroom-push-00190293 [https://perma.cc/T7P4-M22P] (quoting Representative McBride’s statement that efforts to prohibit her from using women’s facilities are “a blatant attempt from far right-wing extremists to distract from the fact that they have no real solutions to what Americans are facing . . . [in] housing, health care, and child care”).

      [351].     See Zuboff 2019, supra note 224, at 518–19 (describing how surveillance capitalism has ushered in a “new Gilded Age of extreme wealth inequality, . . . new forms of economic exclusivity[,] and new sources of social inequality”); see also Anran Xiao, Zeshui Xu, Marinko Skare, Yong Qin & Xinxin Wang, Bridging the Digital Divide: The Impact of Technological Innovation on Income Inequality and Human Interactions, 11 Humanit. & Soc. Sci. Commc’ns 809, 809 (2024) (reporting that “technological innovation, while heralded for its potential to bridge communication and operational gaps, inadvertently exacerbates income disparities, with a pronounced effect in developed economies”); Rachel Sandler, Inside the Trillion Dollar Tech World, Forbes (Nov. 10, 2021), https://www.forbes.com/sites/rachelsandler/2021/11/10/inside-the-trillion-dollar-tech-factory/ [https://perma.cc/L5H3-GL5J] (“No group has gotten richer—or more powerful—over the past decade than tech tycoons.”).

      [352].     See Andrew Ross Sorkin, Ravi Mattu, Bernhard Warner, Sarah Kessler, Michael J. de la Merced, Lauren Hirsch & Edmund Lee, The Billionaires’ Row at the Inauguration, N.Y. Times: DealBook Newsl. (Jan. 21, 2025), https://www.nytimes.com/2025/01/21/​business/dealbook/billionaires-trump-zuckerberg-bezos-musk.html [https://perma.cc/2DLC-RC6M].

      [353].     The Inaugural Address, The White House (Jan. 20, 2025), https://www.whitehouse.gov/remarks/2025/01/the-inaugural-address/ [https://perma.cc/LEC7-43SX].

      [354].     See Tarnoff, supra note 26, at 145.

      [355].     See Thomas J. Billard, “Gender-Critical” Discourse as Disinformation: Unpacking TERF Strategies of Political Communication, 46 Women’s Stud. Commc’n 235, 235 (2023).

      [356].     See KD Coldwater, Decoding the Misinformation-Legislation Pipeline: An Analysis of Florida Medicaid and the Current State of Transgender Healthcare, 111 J. Med. Libr. Ass’n 750, 750 (2023); see also Policing Sex, Sexuality and Gender, S. Poverty L. Ctr. (Dec. 12, 2023) [hereinafter Policing Sex, Sexuality and Gender], https://www.splcenter.org/captain/policing/ [https://perma.cc/FP5F-SPVH] (chronicling how anti-transgender litigants help codify pseudoscientific claims into law by citing them in court to defend gender-affirming healthcare bans).

      [357].     See Matteo Cinelli, Gianmarco De Francisci Morales, Alessandro Galeazzi, Walter Quattrociocchi & Michele Starnini, The Echo Chamber Effect on Social Media, 118 Proc. Nat’l Acad. Sci. (Feb. 23, 2021), https://www.pnas.org/doi/full/10.1073/pnas.2023301118 [https://perma.cc/VTJ9-MP2T] (defining echo chambers as “environments in which the opinion, political leaning, or belief of users about a topic gets reinforced due to repeated interactions with peers or sources having similar tendencies and attitudes”); see also Tarnoff, supra note 26, at 139 (“Through a well-organized offensive, right-wing activists have made social media into an accelerator for their politics.”).

      [358].     Steve Rathje, Jay J. Van Bavel & Sander van der Linden, Out-group Animosity Drives Engagement on Social Media, 118 Proc. Nat’l Acad. Sci. (June 23, 2021), https://www.pnas.org/doi/10.1073/pnas.2024292118 [https://perma.cc/Q22L-GN6S] (using “out-group language” to mean language about liberals by conservatives, and vice versa).

      [359].     Google DeepMind (@GoogleDeepMind), X (Mar. 1, 2019), https://twitter.com/GoogleDeepMind/status/1101514121563041792 [https://perma.cc/K7GM-KEC8].

      [360].     Hao, supra note 267 (quoting a Meta presentation).

      [361].     Rose-Stockwell, supra note 264, at 100.

      [362].     See Marwick & Lewis, supra note 272, at 27–32 (describing the motivations of “media manipulators”); see also Group Dynamics and Division of Labor Within the Anti-LGBTQ+ Pseudoscience Network, S. Poverty L. Ctr. (Dec. 12, 2023), https://www.splcenter.org/captain/defining-pseudoscience-network [https://perma.cc/R7U4-LYR3] (describing the actors and funding streams behind anti-LGBTQ+ narrative manipulation); Tarnoff, supra note 26, at 141 (describing how the political right has “deep-pocketed donors, a sophisticated media operation, and undiluted control of the Republican Party”); Rebecca Boone, Right-Wing Extremists Amp Up Anti-LGBTQ Rhetoric Online, Assoc. Press (June 13, 2022), https://apnews.com/article/politics-religion-arrests-riots-race-and-ethnicity-c65c1090ed923687716114be371e9fdb [https://perma.cc/4436-9N4C] (quoting Idaho State Representative Heather Scott’s remarks that drag queens are waging “a war of perversion against our children”).

      [363].     Simon Doherty, Inside Operation Pridefall: 4chan’s Attempt to Bring Down Pride 2020, Vice (June 3, 2020), https://www.vice.com/en/article/7kpbba/operation-pridefall-4chan-gay-pride-2020 [https://perma.cc/EA28-PPUZ].

      [364].     See Digital Hate, supra note 12, at 12–13, 22; Fla. Stat. § 1001.42(8)(c)(3) (2023) (“Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in prekindergarten through grade 8 . . . .”).

      [365].     See Digital Hate, supra note 12, at 12–13.

      [366].     See Tracking Anti-Transgender Rhetoric Online, Offline, and in Our Legislative Chambers, Anti-Defamation League (July 13, 2021), https://www.adl.org/resources/report/tracking-anti-transgender-rhetoric-online-offline-and-our-legislative-chambers [https://perma.cc/E2B9-FPSQ]; see also, e.g., Greene, supra note 127 (describing a transgender congresswoman as a “biological man”); W. Va. Code § 18-2-25d(a)(3) (2021) (asserting that “biological males and biological females are not in fact similarly situated” in the context of competitive sports); H.R. Res. 1579, 118th Cong. (2024) (asserting that “allowing biological males into single-sex facilities . . . jeopardizes the safety and dignity of Members, officers, and employees of the House who are female”).

      [367].     See René Kladzyk, Policing Gender: How Surveillance Tech Aids Enforcement of Anti-Trans Laws, Project on Gov’t Oversight (June 28, 2023), https://www.pogo.org/investigations/policing-gender-how-surveillance-tech-aids-enforcement-of-anti-trans-laws [https://perma.cc/S6G7-43E3]; see also Kashmir Hill, Deleting Your Period Tracker Won’t Protect You, N.Y. Times (June 30, 2022), https://www.nytimes.com/2022/06/30/technology/period-tracker-privacy-abortion.html [https://perma.cc/MW9U-V3E2] (describing the use of search histories and text messages in abortion prosecutions).

      [368].     See Policing Sex, Sexuality and Gender, supra note 356.

      [369].     Elizabeth Laird, Hugh Grant-Chapman, Cody Venzke & Hannah Quay-de la Vallee, Ctr. for Democracy & Tech., Hidden Harms 21 (2022), https://cdt.org/wp-content/uploads/2022/08/Hidden-Harms-The-Misleading-Promise-of-Monitoring-Students-Online-Research-Report-Final-Accessible.pdf [https://perma.cc/Z3RW-RYQJ].

      [370].     Mei Ngan & Patrick Grother, U.S. Dep’t of Com., Face Recognition Vendor Test (FRVT) Performance of Automated Gender Classification Algorithms 15 (2015), https://s3.documentcloud.org/documents/23816008/nistir8052.pdf [https://perma.cc/N3CZ-X7FG].

      [371].     Id.

      [372].     Tarnoff, supra note 26, at 171.

      [373].     Greenberg Quinlan Rosner, Accountable Tech Frequency Questionnaire 4, 20 (2021), https://accountabletech.org/wp-content/uploads/Accountable-Tech-013121-FQ-Methodology.pdf [https://perma.cc/BU9P-PF84].

      [374].     Future of Tech Comm’n, The Future of Tech: A Blueprint for Action 4 (2022), https://d2e111jq13me73.cloudfront.net/sites/default/files/featured-content/files/fot_full_report-8_screen_1.pdf [https://perma.cc/WJ7E-GNYK].

      [375].     Christopher St. Aubin & Jacob Liedke, Most Americans Favor Restrictions on False Information, Violent Content Online, Pew Rsch. Ctr. (July 20, 2023), https://www.pewresearch.org/short-reads/2023/07/20/most-americans-favor-restrictions-on-false-information-violent-content-online/ [https://perma.cc/UK8V-4CTG].

      [376].     See Big Data, supra note 257, at 13 (advocating that “we move beyond the current focus on downstream issues where we argue about content moderation, illegal content, and ‘filter bubbles’”).

      [377].     Id. at 8; see Maréchal et al., supra note 259, at 10 (“We cannot clean up downstream pollutants like misinformation or dangerous speech without tackling the upstream processes—targeted advertising and algorithmic systems—that make this speech so damaging to our information environment in the first place.”).

      [378].     See Zuboff 2022, supra note 191, at 55; Zuboff 2019, supra note 224, at 112; supra Part II; see also Maréchal et al., supra note 259, at 17 (“Content moderation is a downstream effort by platforms to clean up the mess caused upstream by their own systems . . . .”); Sylvain, supra note 240, at 224 (arguing that “moderation can only go so far in regulating online content and conduct” because “[i]t is, after all, mostly just reactive”).

      [379].     See, e.g., Klonick, supra note 202, at 1627 (“Though corporate responsibility is a noble aim, the primary reason companies take down obscene and violent material is the threat that allowing such material poses to potential profits based in advertising revenue.”); see also Danielle Keats Citron & Helen Norton, Intermediaries and Hate Speech: Fostering Digital Citizenship for Our Information Age, 91 B.U. L. Rev. 1435, 1454 (2011) (“Some intermediaries see digital hate as a potential threat to profits.”).

      [380].     See Maréchal et al., supra note 259, at 17 (“To try to mitigate the devastating effects of targeted misinformation, social media platforms are engaged in an endless circular fight, in which they now must detect and delete content whose social, political, and even medical impact is magnified by the opaque and unaccountable mechanisms of their own business models.”).

      [381].     See Zuboff 2022, supra note 191, at 55; Zuboff 2019, supra note 224, at 111; see also Danielle Keats Citron & Mary Anne Franks, The Internet as a Speech Machine and Other Myths Confounding Section 230 Reform, 2020 U. Chi. L. Forum 45, 52 (“Allowing attention-grabbing abuse to remain online often accords with platforms’ rational self-interest.”).

      [382].     GLAAD 2023, supra note 203, at 32 (emphasis omitted).

      [383].     See Amanda Holpuch, Behind the Backlash Against Bud Light, N.Y. Times (Nov. 21, 2023), https://www.nytimes.com/article/bud-light-boycott.html [https://perma.cc/U6RK-F747].

      [384].     See Kurt Wagner & Bloomberg, Elon Musk’s X Is Seeing Ad Revenue Plunge by Half from Prior Years and Is Expected to Bring in Just $2.5B This Year, Fortune (Dec. 12, 2023), https://fortune.com/2023/12/12/elon-musks-x-is-seeing-ad-revenue-plunge-by-half-from-prior-years-and-is-expected-to-bring-in-just-2-5b-this-year/ [https://perma.cc/2WCC-MBSG]; supra Part III introductory discussion.

      [385].     LGBTQ+ Safety Policies, Meta, https://about.meta.com/actions/safety/audiences/​lgbtq/policies [https://perma.cc/39ZE-BWKE].

      [386].     Hateful Conduct, X Help Ctr. (Apr. 2023), https://help.twitter.com/en/rules-and-policies/hateful-conduct-policy#:~:text=Overview&text=You%20may%20not%20directly%20attack,%2C%20disability%2C%20or%20serious%20disease [https://perma.cc/JCE5-SGCB].

      [387].     Hate Speech Policy, YouTube Help, https://support.google.com/youtube/answer/2801939?hl=en [https://perma.cc/S9CY-8X3R].

      [388].     See Zuboff 2022, supra note 191, at 55; see also supra Part III introductory discussion (providing examples of such content); Unsafe, supra note 210 (documenting anti-transgender content on Facebook, Instagram, and Threads that GLAAD reported to Meta but it refused to take down).

      [389].     See Katie Paul, Meta Rolls out Long-Sought Tools to Separate Ads from Harmful Content, Reuters (Mar. 30, 2023), https://www.reuters.com/technology/meta-rolls-out-long-sought-tools-separate-ads-harmful-content-2023-03-30/ [https://perma.cc/MQ93-N8UK]; Jonathan Vanian, Elon Musk’s X Aims to Win Back Advertisers with New Brand Safety Technology Deal, CNBC (Aug. 8, 2023), https://www.cnbc.com/2023/08/08/elon-musks-x-aims-to-win-back-advertisers-signs-deal-with-ias.html [https://perma.cc/K34S-DSGE]; IAS Team, Twitter and IAS Partner to Provide Advertisers with Brand Safety and Suitability Measurement, Integral Ad Sci. (Jan. 24, 2023), https://integralads.com/news/twitter-and-ias-partner-to-provide-advertisers-with-brand-safety-and-suitability-measurement/ [https://perma.cc/2ZJK-F875]; IAS Team, IAS Enhances YouTube Brand Safety and Suitability Measurement Offering, Integral Ad Sci. (May 2, 2023), https://integralads.com/news/ias-youtube-total-media-quality/ [https://perma.cc/2FTZ-A4FW].

      [390].     See Zuboff 2022, supra note 191, at 54 (describing the goal of abolishing data extraction as “reducing the data-rich attack surface”).

      [391].     See GLAAD 2023, supra note 203, at 7 (footnote omitted); see also Oversight Board Overturns Meta’s Original Decisions in the “Gender Identity and Nudity” Cases, Oversight Bd. (Jan. 17, 2023), https://www.oversightboard.com/news/1214820616135890-oversight-board-overturns-meta-s-original-decisions-in-the-gender-identity-and-nudity-cases/ [https://perma.cc/R6NP-34UH] (describing a decision by Meta’s Oversight Board to overturn the company’s removal of posts containing images of gender-variant people who were “bare-chested with the nipples covered”).

      [392].     Ángel Díaz & Laura Hecht-Felella, Brennan Ctr. for Just., Double Standards in Social Media Content Moderation 9 (2021), https://www.brennancenter.org/our-work/research-reports/double-standards-social-media-content-moderation [https://perma.cc/5ULS-HK6K].

      [393].     See Citron & Franks, supra note 381, at 68 (“There is empirical evidence showing that the internet has been used to further chill the intimate, artistic, and professional expression of individuals whose rights were already under assault offline.”).

      [394].     See Meta Says It Will End Its Fact-Checking Program on Social Media Posts, N.Y. Times (Jan. 7, 2025), https://www.nytimes.com/live/2025/01/07/business/meta-fact-checking [https://perma.cc/2HHL-CMA2].

      [395].     See Tex. Civ. Prac. & Rem. Code Ann. § 143A.002(a) (West 2021) (prohibiting a “social media platform” from censoring “a user, a user’s expression, or a user’s ability to receive the expression of another person based on: (1) the viewpoint of the user”); Fla. Stat. §§ 106.072(2), 501.2041(2)(j) (2022) (prohibiting a company from “willfully deplatform[ing] a candidate for office” or censoring, deplatforming, or shadow banning “a journalistic enterprise based on the content of its publication or broadcast”); see also Nicole Narea, The Staggering Fine Print of Texas and Florida’s New Anti-Trans Bills, Vox (May 18, 2023), https://www.vox.com/23728830/anti-trans-legislation-lgbtq-gender-affirming-care-bans-texas-florida [https://perma.cc/SAN5-PDCX] (describing Texas’s and Florida’s sweeping bans on gender-affirming healthcare).

      [396].     See, e.g., U.S. Dep’t of Just., Section 230–Nurturing Innovation or Fostering Unaccountability? 4 (2020), https://www.justice.gov/file/1286331/download [https://perma.cc/DQ3X-8E69] (proposing an amendment to 47 U.S.C. § 230(c)(2) that would replace “otherwise objectionable” with “unlawful”); Danielle Keats Citron & Benjamin Wittes, The Internet Will Not Break: Denying Bad Samaritans § 230 Immunity, 86 Fordham L. Rev. 401, 415–16, 418–19 (2017) (urging courts to adopt narrower interpretations of “publisher” and “speaker” under § 230(c)(1) and to limit the statute’s application to “providers or users engaged in good faith efforts to restrict illegal activity,” while urging Congress to amend § 230(c)(1) to condition its shield on the provider taking “reasonable steps to prevent or address unlawful uses of its services” (emphasis omitted)).

      [397].     See 47 U.S.C. § 230(c)(1) (2018); see also Zeran v. Am. Online, Inc., 129 F.3d 327, 330, 333–34 (4th Cir. 1997) (holding that a distributor is a “publisher” under § 230).

      [398].     See Citron & Franks, supra note 381, at 50–51; see also Herrick v. Grindr LLC, 765 F. App’x 586, 591 (2d Cir. 2019) (holding that under § 230, an interactive computer service “will not be held responsible unless it assisted in the development of what made the content unlawful”).

      [399].     See Green v. Am. Online (AOL), 318 F.3d 465, 472 (3d Cir. 2003) (“AOL is a private, for profit company and is not subject to constitutional free speech guarantees.”).

      [400].     Citron & Norton, supra note 379, at 1453–54.

      [401].     See Gonzalez Brief, supra note 272, at 5.

      [402].     See Zuboff 2019, supra note 224, at 110–11.

      [403].     See id. at 111–12.

      [404].     See Citron & Franks, supra note 381, at 53–54, 71 (emphasis omitted).

      [405].     Sylvain, supra note 240, at 219 (emphasis added).

      [406].     See Gonzalez Brief, supra note 272, at 6 (noting that “most hate speech online is not unlawful”); see also Daphne Keller, Lawful but Awful? Control over Legal Speech by Platforms, Governments, and Internet Users, U. Chi. L. Rev. Online (June 28, 2022), https://lawreviewblog.uchicago.edu/2022/06/28/keller-control-over-speech/ [https://perma.cc/A9HH-JXV7] (“Much of the terrible speech online, ranging from racist polemics to medical misinformation, is legal. It will remain so unless the Supreme Court substantially changes its interpretation of the First Amendment.”).

      [407].     See Tarnoff, supra note 26, at 154; see also Accountable Tech, Petition for Rulemaking to Prohibit Surveillance Advertising, OSCAR No. 603338, at 59 (Dec. 3, 2021), https://www.regulations.gov/document/FTC-2021-0070-0002 [https://perma.cc/E4FB-CZSS] (“Without a rule to bar [surveillance advertising], enforcement and regulatory actions will simply continue to set up dominoes of harm for the next dominant surveillance advertising firm to knock down.”).

      [408].     See Big Data, supra note 257, at 13.

      [409].     Id. at 14; see U.S. Const. amend. XIII, § 1 (outlawing slavery in the United States, except as criminal punishment); 42 U.S.C. § 274e(a) (2018) (prohibiting the exchange of human organs in interstate commerce).

      [410].     See Tarnoff, supra note 26, at 171.

      [411].     See Maréchal et al., supra note 259, at 31 (noting that the only federal privacy laws are sector-specific).

      [412].     See Big Data, supra note 257, at 13; see also Maréchal et al., supra note 259, at 31 (“A strong federal privacy law, backed up by robust enforcement mechanisms, is perhaps the strongest tool at Congress’ disposal to stem the tide of online misinformation and dangerous speech by disrupting the algorithmic systems that amplify such content.”).

      [413].     See Big Data, supra note 257, at 13; see also Maréchal et al., supra note 259, at 31 (asserting that a comprehensive federal privacy law would “have the benefit of side-stepping the thornier issues related to free speech and the First Amendment”).

      [414].     See supra Parts II, III, V.A.1; see also Keller, supra note 406 (noting that the “lines between legal and illegal speech” are unstable and contested and arguing against allowing internet companies or the government to govern online speech).

      [415].     See Big Data, supra note 257, at 13.

      [416].     See Alex Campbell, How Data Privacy Laws Can Fight Fake News, Just Sec. (Aug. 15, 2019), https://www.justsecurity.org/65795/how-data-privacy-laws-can-fight-fake-news/ [https://perma.cc/FTR7-NEVL].

      [417].     See Maréchal et al., supra note 259, at 31, 33.

      [418].     The 118th Congress did not pass the APRA, and as of the time that this Note was finalized for publication, neither chamber of the 119th Congress had introduced similar legislation. However, in February 2025, the United States House Committee on Energy and Commerce convened a “Privacy Working Group” to pursue comprehensive federal data privacy legislation. Press Release, House Committee on Energy and Commerce, Chairman Guthrie and Vice Chairman Joyce Announce Creation of Privacy Working Group (Feb. 12, 2025), https://energycommerce.house.gov/posts/chairman-guthrie-and-vice-chairman-joyce-announce-creation-of-privacy-working-group [https://perma.cc/4KJ2-YD7J].

      [419].     H.R. 8818, 118th Cong. § 102(a) (2024).

      [420].     See id. § 102(a), (d) (listing “permitted purposes” for the collection, processing, retaining, or transferring of data, which include “targeted advertising” unless the user has opted out).

      [421].     See, e.g., Maréchal et al., supra note 259, at 54 (recommending a federal privacy law that would “[g]ive users very clear control over collection and sharing of user information” (emphasis omitted)).

      [422].     Cal. Civ. Code §§ 1798.120(a)(1), 1798.140(v)(1) (West 2025).

      [423].     See Zuboff 2019, supra note 224, at 96.

      [424].     See Daisuke Wakabayashi, California Passes Sweeping Law to Protect Online Privacy, N.Y. Times (June 28, 2018), https://www.nytimes.com/2018/06/28/technology/california-online-privacy-law.html [https://perma.cc/6CFX-AWWH] (describing opposition to the California Consumer Privacy Act by California’s technology and business lobbies); Big Data, supra note 257, at 13.

      [425].     See Aleecia M. McDonald & Lorrie Faith Cranor, The Cost of Reading Privacy Policies, 4 I/S: J.L. & Pol’y for Info. Soc’y 543, 563–64 (2008) (estimating that if all people in the United States who use the internet were to annually read online privacy policies, the nation would spend fifty-four billion hours reading them, with an opportunity cost of $781 billion).

      [426].     See Digital Services Act, 2022 O.J. (L 277) 1, 64.

      [427].     See id. at 59, 69.

      [428].     H.R. 5534, 118th Cong. § 2 (2023); see also Banning Microtargeted Political Ads Act, H.R. 4955, 117th Cong. § 2(a)(1) (2021) (proposing to amend Title III of the Federal Election Campaign Act of 1971 to prohibit “target[ing] the dissemination of a political advertisement on a covered online platform to an individual, a connected device, or to a group of individuals or connected devices” but providing similar contextual and geographic location exceptions).

      [429].     Trade Regulation Rule on Commercial Surveillance and Data Security, 87 Fed. Reg. 51,273, 51,273 (Aug. 22, 2022).

      [430].     See Ashley Austin, Shelley L. Craig, Nicole Navega & Lauren B. McInroy, It’s My Safe Space: The Life-Saving Role of the Internet in the Lives of Transgender and Gender Diverse Youth, 21 Int’l J. of Transgender Health 33, 33 (2020); Hum. Rts. Campaign Found., LGBTQ+ Youth and the Internet 1 (Nov. 1, 2023), https://hrc-prod-requests.s3-us-west-2.amazonaws.com/LGBTQ-Youth-and-the-Internet-11.cleaned.pdf [https://perma.cc/W3EF-DJD3] (reporting that 98 percent of transgender or gender-expansive youth have used the internet for this purpose).

      [431].     See Austin et al., supra note 430, at 37–41.