GOP-backed bill critics say will ‘erase’ trans and nonbinary Arizonans heads to the governor

Photo via Getty Images/Illustration by Jim Small | Arizona Mirror

A GOP proposal to insert a narrow definition of biological sex into state law that critics say will erase transgender and nonbinary people from public life is on its way to Gov. Katie Hobbs’ desk and, ultimately, her veto stamp. 

On Wednesday, the state House of Representatives passed Senate Bill 1628 on a 31-28 vote, with only Republicans in support. Dubbed the “Arizona Women’s Bill of Rights”, the measure would remove any mention of gender in Arizona law and replace it with a strict definition of biological sex. 

Under that definition, only two sexes would exist: male or female. Men and women would be designated based on their ability to produce sperm or ova, or their potential ability to produce the reproductive cells if a developmental anomaly or accident occurred to impede it. 

LGBTQ advocacy groups have nicknamed the measure the “LGBTQ+ Erasure Act,” warning that trans and intersex Arizonans, among others, would be incorrectly represented on official documents. And for many, that mismatch can place them at an increased risk of experiencing violence. Nearly one-third of trans and nonbinary people who presented an identity document, like a drivers license, that didn’t match their perceived gender suffered harassment, physical attacks or denial of services, according to one national survey. 

Supporters of the bill have touted it as a way to prevent biological men from intruding into women’s spaces. It would allow sports teams, locker rooms, bathrooms, prisons, domestic violence shelters and sexual assault crisis centers to be separated by biological sex, with no regard for the safety of trans people. 

Keeping trans women and girls off of the sports teams and out of public facilities that align with their gender identity has been a top goal for Arizona Republicans, who in 2022 approved a trans athlete sports ban for public school students and have repeatedly attempted to bar trans people from using the bathrooms that best reflect who they are.

Republicans during Wednesday’s floor debate reiterated that it’s a necessary protection for Arizona women, saying that there’s been a recent erroneous attempt to redefine what being a woman means. 

“Over the past several years, there’s been a deliberate effort to redefine sex to mean gender or gender identity, allowing biological males to self-identify into women’s spaces,” said Rep. Selina Bliss. 

The Republican from Prescott called that effort dangerous and said it resulted in female athletes missing out on accolades or spots on the team because of the participation of transgender women. Other biological women in prisons and locker rooms are the victims of sexual assault or are forced to witness biological men changing because of inclusive policies, she added. 

Attempts to vilify transgender women as sexual predators are discriminatory and not founded in fact: multiple investigations have found no evidence to suggest that policies that take into account transgender people lead to increased harassment against cisgender women. But restrictive policies that seek to push transgender people out of spaces consistent with their gender identity do increase the risk of trans people suffering violence or sexual assault.

Mesa Republican Barbara Parker said the definitions in the bill would help state lawmakers to create better tailored laws and allow women to defend themselves in court. 

“The Women’s Bill of Rights will ensure we have a common set of definitions, in which to create policies that will impact women,” she said. “It would ensure that women have the language they need to advocate for themselves in policy and in law without having to pretend that sex distinctions don’t exist. A justice that does not recognize biological sex cannot fully defend the legal rights of women.” 

But Democrats were unimpressed by arguments that the proposal offers protections for women. Rep. Quantá Crews, D-Phoenix, pointed out that several pro-women advocacy organizations registered as opposed to the bill. The Women’s Foundation for the State of Arizona, Arizona Center for Women’s Advancement and the National Council of Jewish Women all signed in against it. 

Crews advised Republicans to support the Equal Rights Amendment instead of advancing discriminatory legislation under the guise of helping women. Multiple calls from Democrats to ratify the amendment, which would prohibit sex-based discrimination and needs just one more state’s approval to be certified at the federal level, have all been blocked by Arizona Republicans, who hold a one-vote majority in each legislative chamber. 

House Assistant Minority Leader Oscar De Los Santos added that the bill would likely wind up in court because it violates federal anti-discrimination laws. In 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, a case in which a man was fired from his job for joining a gay softball league, that federal civil rights laws protect against discrimination based on a person’s sexual orientation or gender identity. 

De Los Santos noted that, as recently as last year, a federal judge blocked Arizona’s trans athlete ban for two transgender girls under the reasoning that the law violated their rights. That ruling is currently being challenged by GOP legislative leaders. 

House Rules Attorney Tim Fleming warned lawmakers in March that the Arizona Women’s Bill of Rights could conflict with federal civil rights laws, including the Equal Protection Clause in the 14th Amendment that prohibits discrimination. 

“This law is unconstitutional, and we should be putting forth laws that protect all people and make Arizona a safe and welcoming place for everybody to thrive,” De Los Santos said. 

Rep. Analise Ortiz, D-Phoenix, called on her Republican colleagues to stop advancing discriminatory legislation that targets trans Arizonans. 

The GOP majority is well into its third year of championing hostile proposals that specifically restrict the behavior and impact the lives of trans women, the local reaction to a national trend from Republican politicians seeking to rile up voters against a population that is both a minority and the most at risk of violence. Nearly 500 anti-LGBTQ bills were introduced in state legislatures across the country, and the vast majority of them were aimed at trans people.

“We do not need to understand everything about one another to treat one another with dignity and respect. SB1628 absolutely does the opposite,” Ortiz said, before voting against the bill. “Trans women are women. Our trans siblings are members of our community. We need to stop using their lives as political  pawns in this body. It is not fair, it is not just and it is not what we are sent here to do.”

Hobbs has said she will veto all anti-LGBTQ measures that the legislature sends to her.

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