Welcome to another year of anti-trans, anti-LGBTQ lawmaking
The Daily Beast
January 18, 2022
An amplified repeat of last year’s anti-LGBTQ bills, particularly aimed at trans youth, is unfolding in state houses—alongside bills around bathroom bans and “religious freedom.”
Florida has HB 211. Georgia has HB 401. North Carolina has HB 514, and Tennessee has SB 657.
All of these bills—either introduced or soon to make their way through Republican-controlled state legislatures—seek to prohibit health care for trans minors and criminalize any health-care practitioners who provide it, including the prescribing of puberty blockers which trans youth advocates say can be vital for trans teens’ well-being.
In Tennessee, violations of the act are defined as “child abuse.” There are similar bills up for consideration in Arizona, Iowa, Indiana, Kansas, Ohio, Oklahoma, and South Carolina. Underscored in many of the health-care bills is the notion that “the minor’s genetic sex at birth” is the gender identity that the state recognizes as legitimate.
West Virginia’s HB 2171, the “Vulnerable Child Protection Act,” prohibits “certain medical treatments and procedures upon a minor, including an emancipated minor, for the purpose of attempting to change or affirm the minor’s perception of the minor’s sex, if that perception is inconsistent with the minor’s genetic sex at birth and making such medical treatments and procedures a felony unless specific exceptions.”
The Daily Beast reached out to a number of lawmakers proposing the bills to ask what underpinned their reasoning for doing so. Only one responded.
“A child should be 18 years old before they make a permanent, life-altering medical decision,” Florida state Rep. Anthony Sabatini (District 32) said. He did not respond to questions about how young trans people might be supported in their health-care decisions, or why the bill he had proposed would criminalize health-care providers.
An amplified repeat of last year’s wave of anti-trans bills, predominantly aimed at youth, is unfolding in state houses across the country. So-called bathroom bans, so in vogue a few years ago but targeted at trans adults, have re-emerged as bills proposed for schools, now aimed at minors.
Oklahoma’s SB 1164 requires a student “to use the restroom or athletic changing facility that corresponds with the student’s biological sex.” South Dakota’s HB 1005 enshrines the same principle, emphasizing that sex “means a person’s immutable, biological sex, as determined by the person’s genetics and anatomy existing at the time of the person’s birth.”
Chase Strangio, deputy director for Transgender Justice at the ACLU’s LGBT & HIV Project, told The Daily Beast that the anti-trans and anti-LGBTQ “drumbeat” was as strong in Republican-controlled state legislatures this year as it was last. “If anything, the bills are moving more quickly. Our sense is that this is not dwindling, it’s escalating. If that escalation pattern holds, we can expect it to be a very bad year.”
As 2021 showed, right-wing lawmakers have a particular thirst for seeing such laws enshrined. The Human Rights Campaign says more than 268 anti-LGBTQ+ bills and 147 specifically anti-trans bills were introduced last year, with a record 26 anti-LGBTQ+ bills enacted into law across ten states.
A recent poll by LGBTQ youth advocacy organization the Trevor Project revealed that 85 percent of trans and non-binary youth surveyed said that news stories about the trans community had “impacted their mental health negatively.”
Strangio said that in 2022 some legislative sessions may be shorter as it is an election year. “That may count in our favor, if they gavel out so they can get out to campaign,” he said. “But it may count against us, if they want to motivate their bases to vote, which could mean a focus on trans bills, voter suppression, and anti-abortion bills. Bathroom bills had largely died down after 2016, but they’re coming back.”
As well as the health-care and bathroom bills, there is—just like last year—a proliferation of bills seeking to stop trans kids from playing on sports teams at school according to their chosen gender identity.
Indiana’s HB1041 requires “for purposes of interscholastic athletic events, school corporations, public schools, nonpublic schools, state educational institutions, private postsecondary educational institutions, and certain athletic associations to expressly designate an athletic team or sport as one of the following: (1) A male, men’s, or boys’ team or sport. (2) A female, women’s, or girls’ team or sport. (3) A coeducational or mixed team or sport. Prohibits a male, based on the student’s biological sex at birth in accordance with the student’s genetics and reproductive biology, from participating on an athletic team or sport designated as being a female, women’s, or girls’ athletic team or sport.”
There are other school sports bills—worded similarly, and sometimes named “Save Women’s Sports Act,” or “Save Girls’ Sports Act”—in South Carolina, Arizona, Georgia, Hawaii, Iowa, Kansas, Kentucky, Michigan, Minnesota, Montana, Pennsylvania, South Carolina, Utah, Wisconsin, and West Virginia. In Oklahoma, one such bill is classified as an “emergency.”
Strangio acknowledged that the recent relentless focus on trans athletes like University of Pennsylvania swimmer Lia Thomas by right-wing media had animated their viewers and listeners.
This negative coverage, said Strangio, far outweighed supportive coverage in liberal outlets, “building a sense of controversy and impending doom.” “It doesn’t matter that none of it is true. The real situation is that women’s sports are underfunded, and the issue of sexual violence has not been taken seriously enough within it,” Strangio added. “Making out trans people are the threat is a total distraction, as well as being hugely painful and hurtful for young trans people, and trans people who want to play sports.”
South Dakota’s sports bill progressed on Friday, having been approved by the state’s Senate State Affairs Committee. As the Daily Beast previously reported last June, the Department of Justice stated it will challenge the anti-trans legislation passed to date.
The Department of Justice says the sports bills violate Title IX’s prohibition of discrimination on the basis of sex, and that the Equal Protection Clause of the 14th Amendment protects trans students’ participation in school athletics. A DOJ spokesperson last year told The Daily Beast that it would “fully enforce our civil rights statutes to protect transgender individuals.”
However, Republican-controlled states continue to introduce anti-trans and anti-LGBTQ legislation undeterred.
Ohio’s sports bill, HB 61 explicitly states that a teen’s body will be medically examined until the state is satisfied their true gender has been established. The bill states: “If a participant’s sex is disputed, the participant shall establish the participant’s sex by presenting a signed physician’s statement indicating the participant’s sex based upon only the following: (1) The participant’s internal and external reproductive anatomy; (2) The participant’s normal endogenously produced levels of testosterone; (3) An analysis of the participant’s genetic makeup.”
The Ohio bill also outlaws any legal challenges to the new law. “No agency or political subdivision of the state and no accrediting organization or athletic association that operates or has business activities in this state shall process a complaint, begin an investigation, or take any other adverse action against a school or school district for maintaining separate single-sex interscholastic athletic teams or sports.”
“Whatever these lawmakers say, decisions around health care for trans minors are not quick or easy,” said Strangio. “They are done in conjunction with health-care providers, family members, specialists like pediatric endocrinologists, and young people themselves in order to find some kind of happiness and stability. It’s painful to watch such misinformation so successfully leveraged against people who need support to survive.”
Strangio noted that Republican lawmakers are focused on people who transitioned and regretted it, “but what about hearing from the people who do not regret it, and had great care? If we took every example of someone who regretted some care and then decided to ban that care, we wouldn’t have any medical care. These are disingenuous arguments.”
The anti-LGBTQ bills in state legislatures this year do not end at restricting access to health care and sports. Some bills also criminalize teachers or other school advisers from withholding information from parents about anything their child or children may ask about being trans, or as Arizona’s SB 1045 puts it, that “the minor child’s perception that his or her gender or sex is inconsistent with his or her biological sex.”
Bills which seek to restrict what school curricula may include have been proposed in Virginia, Indiana, Kentucky, Oklahoma, and Missouri. In Arizona, HB 2285 states “all sex education materials and instruction shall promote honor and respect for monogamous marriage.” In Florida, SB 1834 proposes that school districts do not “encourage discussion about sexual orientation and gender identity” in primary grade. A bill in Iowa would prohibit teaching around gender identity from grades one through six.
Strangio noted that the school bills encompassed both content of lessons, and also the requirement on teachers to divulge information, possibly relayed to them in confidence, to a student’s parents or guardian.
“Many of the lawmakers have no ideological or individual investment in these bills,” Strangio said. “Many don’t think they are a good idea. Many run contrary to their libertarian impulses. But introducing them, or supporting them, is about politics. This is part of a continued backlash from the Christian right to marriage equality. This fixation on trans people is part of a larger goal to restrict any familial or individual identity or structure that diverges from the white Christian heterosexual family, and its supporters and backers are using vulnerable kids to exploit misinformation.”
South Carolina’s “Parent Bill of Rights Act” gives parents the ultimate right to “direct the upbringing, education, health care, and mental health care of their children,” while the state’s HB 4605 seeks to ban the provision to under-18s of “instruction, presentations, discussions, counseling, or materials” when it comes to what the state terms “controversial and age-inappropriate topics, which are reserved for parents and legal guardians to discuss with and explain to their children in accordance with their family values.” Those subjects: “sexual lifestyles, acts, or practices; gender identity or lifestyles; or pornographic, lewd, explicit, profane, or similarly age-inappropriate materials.”
Strangio said the ACLU had heard from parents living in states where anti-trans bills had passed or are proposed, who are confronting either having to move “to keep their children safe and healthy,” or who are unable financially to do so, and must face whatever restrictions or bans are placed in law.
“They are feeling terrible and scared,” said Strangio. “Many of these people have lived in these states all their lives. Their roots are in these states. Their wider family and friend network is there. The level of disruption if you are forced to leave a state is profound on many familial and community levels.”
Some states have even larger anti-trans legislative intentions. A bill in Iowa seeks to strike down gender identity as a protected class under the Iowa Civil Rights Act, while in New Hampshire HB 1180 is focused on “the state recognition of biological sex.”
New versions of the “religious freedom” bills of a few years ago—in which “religious freedom” and “religious liberty” were invoked as legitimate reasons to not serve, provide services to, or treat LGBTQ people equally—have returned in force.
There are “religious freedom restoration acts” being proposed in Iowa and West Virginia. Bills allowing doctors and nurses to cite their religious freedom when it comes to providing medical care have been proposed in Florida and South Carolina; and for adoption care and fostering providers in Iowa, Indiana, Kentucky, South Carolina, and West Virginia. In Iowa and Massachusetts more over-arching religious freedom bills seek to enshrine the concept as a general principle in state law.
Strangio said trans and LGBTQ people and their allies should lobby legislators in all the states where anti-LGBTQ and anti-trans bills are being proposed. “Our opponents are good at mobilizing their base. We need to be good at mobilizing ours. We all have a part to play in correcting the lies and misinformation about trans people, especially now as trans rights and lives are under such direct attack,” Strangio said.