Advocates brace for anti-LGBTQ backlash at state level after Biden victory
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Legislators in Montana advanced two bills Monday focused on transgender youth: House Bill 112 would prohibit transgender student athletes from participating on teams that correspond to their gender identities, and House Bill 113 would prohibit health care professionals from providing gender-affirming care to trans minors.
"If passed into law, HB 112 and HB 113 will cause irrevocable harm to trans youth," Caitlin Borgmann, executive director of the American Civil Liberties Union of Montana, said in a statement. "If these discriminatory bills pass — we will sue, and we will win. Trying to defend laws in court that stigmatize and target trans youth doesn't seem like a good use of taxpayer dollars to us."
The bills working through Montana's Legislature are among an estimated 21 anti-LGBTQ measures that have been filed or pre-filed for 2021 state legislative sessions, according to Freedom for All Americans, an organization advocating for LGBTQ nondiscrimination protections. Many of the bills, like those in Montana, focus on transgender youths.
"I think the volume of bills is going to dramatically increase, particularly because of what is happening at the federal level," said Kasey Suffredini, CEO of Freedom for All Americans. "For the opposition, this is the only avenue for their narrative that treating LGBT people with dignity and respect is a problem for the country."
Chase Strangio, deputy director of transgender justice for the American Civil Liberties Union, agreed.
"We often see backlash" after advancements in LGBTQ rights, he said, citing the flurry of measures targeting LGBTQ people after the Supreme Court's landmark decision in Bostock v. Clayton County, Georgia, which expanded the scope of federal nondiscrimination law to include sexual orientation and gender identity.
Strangio said that with fewer opportunities to roll back LGBTQ rights at the federal level under President Joe Biden — who has signed multiple pro-LGBTQ executive orders — he's not surprised that opponents are zeroing in on the states.
Anti-LGBTQ bills
Republican legislators in over a dozen states have proposed legislation that targets LGBTQ people. The bills touch on athletics, health care and a grab bag of other issues related to queer rights and recognition.
Legislators have also introduced bills to restrict transgender participation in student athletics in Oklahoma, South Carolina, Tennessee, Kentucky, North Dakota, New Hampshire and Florida. The trend carried over from last year, when lawmakers took up the issue in several states. Idaho is the only state to have adopted such a law, and it did so just last year.
Proponents of such bills say it's about fairness, while opponents say the measures are discriminatory.
Bills that would penalize or criminalize medical professionals for providing trans youths with gender-affirming care have been introduced in Utah, Missouri, Indiana, Alabama, Mississippi and Texas.
"Criminal health care bans are unlike anything we have ever seen before," Strangio said. "To cut someone off from their health care and make it a crime is pretty much unparalleled."
In Kentucky, SB 83 would prohibit "discrimination" against any health care provider who refuses to administer care because of a religious objection.
In New Hampshire, HB 68 would expand the definition of "child abuse" to encompass parents' provision of gender-affirming care, while bills in Alabama, Missouri and Indiana would make it a crime for physicians to give any gender-affirming care to a minor.
Research released in September in the journal Pediatrics found that transgender children who receive gender-affirming medical care earlier in their lives are less likely to experience mental health issues like depression and anxiety.
Strangio said he is alarmed by "how far-reaching these bills are becoming." For example, a bill introduced by Mississippi state Sen. Angela Burkes Hill would criminalize access to care for young adults up to age 21.
Hill defended the bill on social media as necessary in the face of Biden's pro-LGBTQ policies: "It should have been passed last year. Who is going to fight for your daughters not to be cheated by biological males deciding to identify as a girl?? Women shouldn't have to change clothes in front of men either. That federal money will be the carrot. Get ready."
Other bills that have alarmed LGBTQ advocates include Indiana's HB 1456, which aims to prohibit transgender people's access to bathrooms that match their gender identities; South Dakota's HB 1076, which would require birth certificates to reflect biological sex; North Dakota's HB 1476, which would codify discrimination against LGBTQ people; and Iowa's Senate File 80, which would require schools to alert parents if their children are asked by school employees about their "preferred" pronouns.
Pro-LGBTQ legislation
For LGBTQ advocates, the news from legislatures isn't all bad.
Suffredini expects several states to advance nondiscrimination protections, including Ohio, Pennsylvania, Arizona and Michigan. In Michigan, advocates collected over 400,000 signatures to put a measure on the ballot to extend such protections, and the Legislature has 40 days to amend existing nondiscrimination legislation or the issue will appear on the November 2022 ballot for voters to decide.
Advocates in Arkansas — one of only three states that have no hate crimes law, along with South Carolina and Wyoming — hope an LGBTQ-inclusive hate crimes bill makes it to the governor's desk this session. Conservatives tried to derail the bill this month because it includes protections based on sexual orientation and gender identity.
In Indiana, the state's first openly gay legislator, Sen. J.D. Ford, has proposed legislation that would outlaw conversion therapy for minors by licensed counselors. If the bill becomes law, Indiana would join 20 other states and 80 cities in banning the widely discredited practice.
North Carolina cities and municipalities have begun to pass nondiscrimination measures after the end of a moratorium on such local ordinances as a result of a 2017 compromise bill that repealed HB 2, the controversial "bathroom bill."
New York Senate Democrats are advancing a bill that would strike down an anti-loitering statute, also known as the "walking while trans" law, which allows police to arrest and detain sex workers merely for being on the street. LGBTQ advocates say that the statute is used to harass transgender women of color and that its repeal is necessary to end targeted discrimination. The legislation is on track to pass next week.
Maryland legislators introduced a measure that would make it easier for transgender people to legally change their names.
State Sen. Scott Wiener, an openly gay lawmaker from California, has introduced a bill that would prohibit medically unnecessary surgical procedures on intersex children before age 6. If it passes, the law would be the first of its kind in the U.S.
An ally in the White House
Since he took office last week, Biden has taken several actions applauded by LGBTQ advocates, including issuing an executive order that prohibits discrimination on the basis of sexual orientation and gender identity across federal agencies and another that rescinds former President Donald Trump's ban on transgender people's serving openly in the military.
"The Biden administration is by far the most supportive of LGBT people in U.S. history," Suffredini said. "He took action on day one to extend protections on day one. No other president has done that. That is a first."
With Biden in the White House and Democrats in control of Congress, Suffredini and other advocates are optimistic about passage of pro-LGBTQ federal legislation, including the Equality Act, which would grant LGBTQ people federal protections from discrimination in employment, housing, credit, education, use of public space, public funding and jury service.
"We are in the best position we have ever been to update federal civil rights law," Suffredini said. "Our dedicated opposition knows this, and they know this moment could be coming. This is a last gasp."
