The start of the new year means the start of state legislative sessions around the country — and the annual emergence of anti-LGBTQ legislation is right on cue.
Just two weeks into 2020, a slew of anti-LGBTQ bills have been introduced throughout the country. But this year, the legislation is taking on new forms to specifically target transgender youth.
Many of the bills seek to criminalize transition-related care for transgender youth, while others — in the wake of controversy over transgender girls competing in schools, including a case in Connecticut the Department of Education has agreed to consider — would prohibit transgender youth from participating in sports.
Chase Strangio, a staff attorney with the American Civil Liberties Union LGBT and HIV project, said in a conference call with reporters 2020 marks a “hostile” start for legislative sessions “not just in the number, but in the content of the bills and in the swiftness with which they were introduced.”
“Certainly, since 2016, we’ve seen a lot of bills across the country attacking trans people in particular, but there is a sort of level of intensity, both in the character and the volume, that we’re seeing that is pretty alarming this session,” Strangio said.
Bills that would criminalize transition-related care for transgender youth, including gender reassignment surgery, are now pending in South Dakota and Florida, Strangio said. The bills have penalties, Strangio said, for administering, prescribing and performing the treatment.
“Obviously when the government is proposing wholesale bans on people being able to access medically accepted standards of care, that suggestion itself is dangerous for young people,” Strangio said.
Other bills in South Carolina and Missouri, Strangio said, wouldn’t institute criminal penalties, but would prohibit transition-related care for transgender youth.
The bills, Strangio said, would “overnight lead to such significant physical and mental health crises that it’s hard to think of it as anything other than a bill that would genuinely cause the short-term death of trans young people.”
Legislation that would prohibit transgender youth from participating in sports consistent with their gender identity, Strangio said, has been introduced in Alabama, Georgia, Indiana, Missouri (in the form of a proposed constitutional amendment), New Hampshire, Tennessee and Washington State.
The New Hampshire bill, Strangio said, only imposes restrictions on the women and girls side of sports, including “an invasive” requirement that in any dispute, young athletes would have to provide documentation of their hormone levels, chromosomes and reproductive organs.
But not all the anti-trans bills take on these new forms. Legislation has been introduced in Kentucky, Strangio said, that takes the form of a previously seen measure seeking to ban transgender kids from using school restrooms consistent with their gender identity.
Strangio cited widespread opposition to the measures. The bills against transition-related care for youth, Strangio said, are opposed by medical and psychological groups, and the bills against transgender youth in sports are opposed by women’s groups and athletic organizations.
S.D. anti-trans bill an imminent threat
One of the most advanced of these anti-trans bills is the legislation pending in South Dakota, House Bill 1057, that would criminalize providing transition-related care to transgender youth. A hearing, initially set for Friday, was rescheduled for the bill to take place Wednesday.
South Dakota State Rep. Fred Deutsch said in a statement to the conservative National Review the legislation, called the “Vulnerable Child Protection Act,” would ensure children are “protected from dangerous drugs and procedures.”
“The solution for children’s identification with the opposite sex isn’t to poison their bodies with mega-doses of the wrong hormones, to chemically or surgically castrate and sterilize them, or to remove healthy breasts and reproductive organs,” Deutsch is quoted as saying. “The solution is compassionate care, and that doesn’t include catastrophically and irreversibly altering their bodies.”
If enacted into law, a doctor who provided transition-related care, including gender reassignment surgery, to a minor would be guilty of a Class 4 felony, which could mean up to 10 years in prison and a fine of $30,000. As of now, the legislation has more than 40 co-sponsors.
Deutsch is quoted in the South Dakota-based Argus Leader that he began working on the bill nine months after he met with transgender people and heard “their experiences of being hurt by the transition process.”
According to the Endocrine Society, hormone therapy isn’t recommended for transgender youth and a team of professionals should manage treatment for youths.
Mara Keisling, executive director of the National Center for Transgender Equality, condemned the legislation in a statement as dangerous and contrary to medical standards.
“Doctors and other medical professionals, not politicians, should decide the appropriate medical care for transgender youth,” Keisling said. “This is one of the most extreme and dangerous pieces of legislation in the country and threatens doctors with prison simply for providing necessary health care.”
Strangio said the American Civil Liberties Union is planning to file a lawsuit should the legislation become law.
Other bills target adoption, health care
At the same time, legislation in state legislatures that would more broadly enable discrimination against LGBTQ people is reappearing.
Rose Saxe, a staff attorney with the American Civil Liberties Union LGBT and HIV project, counted in the conference call a total of 25 anti-LGBTQ bills, many of which would impose anti-LGBTQ restrictions on education and enable anti-LGBTQ discrimination in the name of religious freedom.
The most advanced is anti-LGBTQ adoption legislation in Tennessee headed to the governor’s desk that would enable taxpayer-funded adoption agencies to refuse placement into LGBTQ homes over religious objections. Gov. Bill Lee is expected to sign the legislation. Similar anti-LGBTQ adoption bills, Saxe said, are pending in Missouri and West Virginia.
“These bills are incredibly damaging for young people,” Saxe said, “both for LGBTQ youth, who see the targeting and dehumanizing of the community, as well as foster youth and others in state care.”
Bills in Alaska and Arizona, Saxe said, would institute “prohibitions on education about LGBTQ people” in school. Another bill in Arizona, Saxe said, would allow teachers to refuse to use the preferred pronouns for transgender students.
In Indiana, Saxe said legislation is pending that would allow mental health counselors to refuse to treat patients, including LGBTQ people, based on religious beliefs. Legislation in Kentucky, she said, would institute a religious exemption for health care workers writ large to refuse care, including for LGBTQ patients.
“They impede on access to quality care,” Saxe said. “They put discrimination ahead of patients or children and they’re really not solving any problem, perhaps most egregiously.”
According to Equality Florida, the anti-trans legislation in the state is actually one of five anti-LGBTQ bills introduced in the state legislature. Others would undo pro-LGBTQ city ordinances, undo city ordinances prohibiting widely discredited conversion therapy and enable conversion therapy in those cities within the home.
“This is the most overtly anti-LGBTQ agenda from the Florida Legislature in recent memory,” said Jon Harris Maurer, Equality Florida’s public policy director. “It runs the gamut from openly hostile legislation that would arrest and imprison doctors for providing medically necessary care, to legislation that would carelessly erase critical local LGBTQ protections.”
Asked by the Washington Blade whether the anti-LGBTQ bills across state legislatures, given their common nature and language, are coming from the same source, such as Alliance Defending Freedom, Strangio said he couldn’t say for certain, but named the anti-LGBTQ legal group as among their supporters.
“I agree the language is very similar, and I think some of these have been workshopped over several years,” Strangio said. “I think in terms of the groups that are advocating for the substance of the bills, I would say that it’s 100 percent ADF and the local family policy institutes.”
Bills prohibiting transition-related care for transgender youth, Strangio said, are “likely” being pushed in response to a recent custody dispute between two parents in Texas over a child who’s apparently transgender.
Matt Sharp, state government relations national director for Alliance Defending Freedom, responded with a comment expressing general support for the anti-trans bills when asked by the Blade via email if the legal firm had a hand in writing the legislation.
“Girls deserve to compete on a level playing field,” Sharp said. “Forcing female athletes to compete against biological males isn’t fair and destroys their athletic opportunities. Likewise, every child deserves a childhood that allows them to experience puberty and other natural changes that shape who they will become.”
Could state bills lead to lawsuits in favor of LGBTQ rights?
Seeing a remarkable silver lining to the legislation in a question on the conference call was YouTube personality Matt Baume, who pointed out the passage of constitutional amendments against same-sex marriage in 2004 led to the U.S. Supreme Court’s ruling for same-sex marriage nationwide in 2015.
Could a similar situation follow, Baume asked, in which enactment by the state legislatures of these anti-LGBTQ bills would lead to litigation that would have the opposite effect: A Supreme Court ruling guaranteeing transgender rights nationwide?
Saxe, in response, drew a distinction between the two, pointing out the constitutional amendments were generally passed at the ballot, not by state legislatures.
“I think it’s hard to know whether of any of these, if they pass, will end up going to the Supreme Court,” Saxe said. “I think…the health care restrictions and some of the other bills are so egregious that it seems to hard to imagine letting them stand.”
However, Saxe said the potential of costly litigation may be key in preventing these state legislatures from approving these anti-LGBT bills in the first place.
The better comparison, Strangio said, would be 2016, when there was a proliferation of anti-trans bathroom bills, including House Bill 2 in North Carolina, and religious freedom legislation, such as House Bill 1523 in Mississippi.
Strangio warned that could mean litigation wouldn’t be successful. Although both laws were subject to lawsuits, the Mississippi law is still on the books, and HB2 ended up being repealed and replaced with a weaker law that is still on the books in North Carolina.
David Flugman, a partner with the New York-based law firm Selendy & Gay PLLC who has focused on LGBTQ rights, said in a statement bills prohibiting transition-related care for transgender youth are “a pernicious attempt to target a disfavored group” and constitutionally suspect.
“They raise serious constitutional concerns surrounding these minors’ rights to control their own bodies and their ability, with their parents’ consent, to obtain critical medical treatment,” Flugman said. “The bills also represent a heavy-handed intrusion by the state into the medical decisions of parents and children in consultation with medical professionals. I think we can expect to see lawsuits filed.”