November’s elections saw trans candidates make unprecedented gains in statehouses across the country: Six trans candidates were elected, and several made history as the first out trans people to take office in states including Kansas, Delaware and Vermont. Sarah McBride made history as the first out trans person to be elected to a state’s Senate, and Mauree Turner made history as the first openly nonbinary and Muslim lawmaker elected to serve in Oklahoma.
These wins, combined with this summer’s ruling in Bostock v. Clayton County, have had LGBTQ activists across the country celebrating.
But meanwhile, several statehouses are setting out to deny the rights of transgender people in their 2021 sessions.
Attacks on Health Care at the State Level
Alabama legislators have pre-filed their first house bill of the season—HB1—which, if passed, would prohibit young trans people from receiving life-saving transition-related health care by making it a crime for doctors to provide it. The bill would also “provide for the disclosure of certain information concerning students to parents by schools”—essentially allowing schools to “out” young trans people to their parents.
Rep. Wes Allen (R), who sponsored the bill, reportedly said, “When you come at it from a Biblical worldview… there is the immutable fact of male or female… and the large majority of these kids grow out of it and grow to accept who God made them.”
The bill was previously introduced as HB303 in the 2020 regular session, where it died.
Texas has a similar pre-filed bill (HB 68) that would criminalize health care for trans youth by including it in the legal definition of “child abuse.”
Both the Texas and Alabama bills would make it a crime to provide care that the American Psychological Association, the American Academy of Pediatrics, and other national health care organizations have determined to be essential and life-saving for trans youth. These attacks come in the wake of the Trump administration’s attempt to roll back Obama-era trans health care protections—an attack ultimately blocked by a federal judge.
Athletics: A New Battleground
Tennessee lawmakers have introduced HB 3, a bill that would essentially ban trans athletes from participating in high school sports by making it law that students participate on the team that corresponds to their “sex at the time of birth.” It would also likely bar intersex athletes from participation. The bill’s proponents argue that this legislation would protect cis girls, who trans girls supposedly have an advantage over—an assertion with no factual basis.
IDAHO, KENTUCKY and ARIZONA
In addition to several lawsuits targeting young trans girls and women who are athletes, several bills similar to HB 3 have already been passed including Idaho’s HB 500, Kentucky’s SB 114 and Arizona’s HB 2706. Many of these are currently being contested in court by the ACLU.
“The overall goal isn’t about sports—the goal is about undermining legal protections for LGBTQ people and continuing to use that fear of trans people both to exclude trans people from every aspect of public life, and to entrench gender norms,” said ACLU’s Chase Strangio in a recent interview with Ms.
When it comes to statehouses obstructing trans rights, the past few years have seen a shift from bills primarily targeting the presence of trans people in bathrooms—most notably in North Carolina’s HB2, the only one that passed—to bills targeting trans youth specifically, from two different directions:
- attacking their access to transition-related health care; and
- prohibiting trans girls from playing on sports teams that match their gender.
This exemplifies a pivot by anti-trans interests to threatening trans youth, as opposed to trans adults. Rather than relying on the “threat” of “men in women’s bathrooms,” there’s been a rhetorical shift to the idea of “protecting innocent children”—whether they are the young trans kids who are “too young to know,” in the case of health care legislation, or the cis girls whose opportunities are supposedly threatened when they compete in events with trans girls.
Cases similar to the Tennessee ban have also highlighted the ways in which race figures into the attempted state-sanctioned enforcement of gender: In Connecticut, where the Alliance Defending Freedom filed a suit seeking to get two (Black) trans girls barred from competition, the funding that would be denied if the school district did not comply with the order and bar the girls from competing was specifically designated as desegregation aid—$18 million dollars of it, no less.
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Where’s the (Dark) Money?
Who’s behind these very similar sounding bills (or the similar spate of court cases aimed at excluding trans girls from high school sports)? Primarily, three groups, according to Strangio:
- Alliance Defending Freedom (ADF), an SPLC-designated hate group that recently appointed Supreme Court Justice Amy Coney Barrett has ties to;
- the American Legislative Exchange Council (ALEC); or
- the Heritage Foundation.
Many of these conservative organizations have been at the forefront of a movement to expand the first amendment free exercise clause—a movement that many fear would roll back decades of hard-fought civil rights gains in reproductive health care and LGBTQ rights, among other issues.
LGBTQ Rights on a National Level: Bills to Watch Out For
On a national level, LGBTQ advocates are keeping an eye on the Equality Act—an act that, if passed, would amend the Civil Rights Act of 1964 to include protections from discrimination on the basis sexual orientation. While Biden has vowed to pass the act in his first 100 days, the passage of the act hinges on a Democratic Senate (which in turn hinges on the upcoming Georgia runoff election).
In the Senate, we also see the “Protection of Women and Girls in Sports Act,” which would deprive schools of federal funding if they let trans girls compete on the team that matches their gender. The act, which has been in committee since January 2020, was sponsored by Kelly Loeffler (R-Ga.), whose contested seat will be decided by the January runoff election.
While June’s ruling in Bostock determined that Title VII of the Civil Rights Act does apply to gender identity and sexual orientation discrimination, whether this applies to the realm of sports and Title IX is a matter of debate.
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