March 31, 2021 at 2:52 pm EDT | by Chris Johnson
As new anti-trans laws mount, legal advocates to seek relief from courts

Gov. Kristi Noem (R-S.D.) signed executive orders against transgender youth in sports amid a flurry of anti-trans laws. (Photo public domain)

The unprecedented onslaught in state legislatures of measures against transgender youth, including several signed into law in recent days by governors, has left the LGBTQ community reeling and preparing new lawsuits to challenge the restrictions.

Many of the bills would essentially bar transgender girls from participating in school sports, including measures recently signed into law in Tennessee and Arkansas. Although South Dakota Gov. Kristi Noem initially issued a partial veto to legislation that would ban transgender kids in sports, she signed two executive orders this week to that effect after outcry from the social conservative base.

“Only girls should play girls’ sports,” Noem said in a statement. “Given the legislature’s failure to accept my proposed revisions to HB 1217, I am immediately signing two executive orders to address this issue: One to protect fairness in K-12 athletics, and another to do so in college athletics.”

Arkansas Gov. Asa Hutchison also signed SB289 into law on Monday, which is broad legislation that would allow medical practitioners to decline to offer a procedure if they have a religious exemption. The bill appears aimed at abortions and transition-related care, including gender reassignment surgery, although critics say it would also allow a physician to override patient’s directives on end of life care or pharmacies to refuse to fill prescriptions for birth control, PrEP and other antiretrovirals.

In West Virginia, the House has passed HB 3293, a similar bill aimed at banning transgender youth from sports. (According to a 2017 study from the Williams Institute at the University of California, Los Angeles, the state has the highest percentage of transgender teens in the nation. An estimated 1.04 percent of West Virginians in that age range identify as transgender, compared to the national percentage of .73 percent.)

Meanwhile in Alabama, the House has passed HB 391, which would prohibit transgender girls from participating in sports, and HB1, would prohibit medical practitioners from providing transition-related care to transgender youth. The Senate has passed SB 10, which would similarly restrict transition-related care.

Taking a more traditional route to express animus toward transgender people, the Tennessee House on Monday passed HB 1182, a bill aiming to prevent transgender people from using restrooms consistent with their gender identity. It would require businesses that allow transgender people to use the appropriate restroom to post signage indicating that policy.

Other anti-transgender bills the Tennessee Legislature is considering: another bathroom bill, a medical refusal bill, and an anti-LGBTQ parental notification bill. Yet another bill, HB 800/SB 1216, would prevent schools from using teaching materials “that promote, normalize, support, or address lesbian, gay, bisexual, or transgender (LGBT) issues or lifestyles.”

All of these measures follow the law Mississippi Gov. Tate Reeves signed earlier this year barring transgender youth from participating in athletics and a similar anti-trans sports bill Idaho Gov. Brad Little quietly signed last year at the height of the coronavirus. A federal judge has since blocked Idaho from implementing its law, although that litigation is now pending before the U.S. Ninth Circuit Court of Appeals.

Unlike recent years, when LGBTQ advocates were successful in thwarting anti-transgender legislation from becoming law or stirring up a national outcry — such as with House Bill 2 in North Carolina, which was met with economic boycott and eventual revision of the law — that hasn’t been the case with the latest wave of bills.

Rodrigo Heng-Lehtinen, deputy executive director of the National Center for Transgender Equality, said following the same guide book would be the best strategy for transgender advocates to pursue against the latest of wave of legislation.

“These legislative efforts around the country are putting transgender young people at risk. They would deny them live-saving, appropriate health care or the ability to participate in school sports not because it’s good public policy but because politicians believe that it will bring them more power,” Heng-Lehtinen said. “While these discriminatory attacks have grown, they are not new. Politicians have been targeting transgender people and other members of the LGBTQ community for years. And those attacks are often a direct backlash to progress we’ve made in other areas. We must continue to tell our stories and refuse to allow bullies to push us away from living our lives as who we are.”

One explanation for why the latest round of anti-trans bills have met with more success than in previous years is because third parties that spoke out against them before, such as the business community and sports groups, are absent from the conversation this time. The National Collegiate Athletic Association, for example, has been silent on the anti-trans sports bills and has refused to withdraw competitions in states with the laws.

That may be a reflection of the polling. Unlike other LGBTQ issues, where a majority of the American public supports LGBTQ rights, surveys have found that isn’t the case with transgender kids in sports.

For its part, the White House has sent signals indicating President Biden’s opposition to the legislation. White House Press Secretary Jen Psaki indicated to the Washington Blade anti-trans measures are an illegal form of sex discrimination and Biden issued the first-ever presidential proclamation on the Transgender Day of Visibility, which states transgender people have support in sports and schools.

Gillian Branstetter, a transgender advocate and spokesperson for the National Women’s Law Center, conceded anti-trans forces may have succeeded in getting governors to sign these measures into law, but predicted they’ll soon meet their end in court.

“The introduction of these bills alone represents a visceral harm to transgender youth, who remain among the most vulnerable children in our country today,” Branstetter said. “But a governor’s signature marks the beginning of a fight, not the end of one. Broadly speaking, these bills are poorly drafted, discriminatory, and unconstitutional — ask Gov. Brad Little how long they’ll last in court. Hateful amateurs have written these bills; transgender professionals will defeat them handily.

Although the litigation against these measures hasn’t been filed in court (with the exception of the lawsuit against the Idaho ban), transgender advocates are expecting them shortly and are prepared to file other lawsuits should governors sign the measures.

Chase Strangio, deputy director for trans justice with the ACLU’s LGBTQ & HIV Project, said he expects courts to shut down the new anti-trans laws.

“Courts have been consistent and clear that federal law protects transgender people from discrimination in education and health care,” Strangio said. “Any bans on healthcare for young people that go into effect will be challenged immediately. We are prepping lawsuits along with partner organizations and urge states considering these bills to avoid the devastating harms they will cause and the inevitable and costly litigation they will invite.”

Strangio added one issue with litigation is “the truth is that there are very few openly trans athletes competing” who have standing to sue in court and encouraged transgender athletes who are barred from competing to contact legal advocates.

Shannon Minter, legal director for the National Center for Lesbian Rights, said the organization has been prepared since last year to file with GLBTQ Advocates & Defenders and the Southern Poverty Law Center a lawsuit against the Alabama medical refusal legislation should it become law.

“We are evaluating potential challenges to sports bans, and I know the ACLU and Lambda are as well,” Minter said. “These cases take a lot of resources, but we are committed to fighting these attacks on trans kids with all the tools we have, including litigation.”

Minter, however, said traditional allies need to speak out more loudly as they have in the past and create a “grassroots campaign of LGBTQ people and allies, similar to the level of engagement we saw around marriage, to educate the public and legislators about the humanity of trans people.”

“We are in a full blown political crisis, and trans kids and their families are suffering unimaginable harms,” Minter said, “We need to hear from supportive elected officials, businesses, faith leaders, medical professionals and parents. I am more concerned about the health and well-being of trans kids than I have ever been in my 30 plus years of advocacy. These new attacks on trans kids are not simply politics as usual. These are the type of extreme measures-banning a group of children from school activities and healthcare — that historically have been used by right-wing governments and that have led to horrendous human rights abuses against politically and socially vulnerable groups.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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