Use this button to switch between dark and light mode.

Culture Wars Continue with Transgender Issues

June 02, 2022

In show of just how powerful cultural issues can be, hot-button legislation dealing with the transgender community has emerged in dozens of statehouses in recent months, even though transgender people account for less than 1 percent of the nation’s adult population.

During the 2022 legislative session, at least 33 states have introduced at least 138 bills dealing with the transgender population, with proposals ranging from bans on transgender student participation in school sports, to legislation barring or limiting access to little-known “gender-affirming healthcare,” to plans permitting (or restricting) the changing of someone’s gender designation on their birth certificate.

The legislative onslaught seems to be driven, at least in part, by Republican lawmakers reacting to recent events, like Penn swimmer Lia Thomas becoming the first trans woman to win an NCAA swimming championship, although in some key instances Republicans have stood against their partisan colleagues in opposing these proposals.

Already, two of the most high-profile bills of this sort have been challenged in court, suggesting that this particular skirmish in the culture wars is likely to drag on well past this year’s legislative session.

Florida’s ‘Don’t Say Gay’ Bill Open to Interpretation

Perhaps the most high profile of these bills is Florida’s so-called “Don't Say Gay” legislation, otherwise known as the Parental Rights in Education law.

Signed by Republican Gov. Ron DeSantis in late March, the bill says: “Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.”

 Those 40 words have been alternatively described as “deeply disturbing” and “noncontroversial.” People have come to such widely different interpretations because the bill’s wording is just vague enough to create uncertainty as to whether it prohibits any “discussion” of sexual orientation and gender identity, or it merely bars “instruction” on the topic.

The bill’s supporters insist it wouldn’t stop the children of same-sex parents from talking about their families in class or prohibit discussions about LGBTQ history – which is particularly relevant in Florida, given the deadly mass shooting at the gay nightclub Pulse in Orlando in 2016. As evidence, they point to legislative text, which only talks about “instruction.”

However, opponents note that the bill’s preamble talks about prohibiting “classroom discussion about sexual orientation or gender identity” – and that a bill's preamble, while not technically the law, is routinely considered whenever a court tries to interpret legislative intent.

As it so happens, gay rights advocates almost immediately filed a lawsuit in federal court to block the implementation of the bill, so a determination of its true scope could be pending.

Republican Govs Veto Transgender Sports Bills...to No Avail

Among the most common transgender bills introduced this year have been proposals to block transgender children from competing in student athletics. At least 29 states have introduced at least 64 bills on the matter.

However, Republican governors in two states – Indiana and Utah – have vetoed such bills when they reached their desks.

On March 21, Indiana Gov. Eric Holcomb vetoed HEA 1041, which would have prevented transgender girls from competing in female sports in the Hoosier state, writing: “The presumption of the policy laid out in HEA 1041 is that there is an existing problem in K-12 sports in Indiana that requires further state government intervention. It implies that the goals of consistency and fairness in competitive female sports are not currently being met. After a thorough review, I find no evidence to support either claim even if I support the overall goal.”

A day later, Utah Gov. Spencer Cox vetoed a similar proposal, noting in his veto message that there are only four transgender kids playing high school sports in the entire state of Utah – and only one of those students is playing girls' sports.

Cox wrote in his veto message: “Four kids and only one of them playing girls sports. That’s what all of this is about. Four kids who aren’t dominating or winning trophies or taking scholarships. Four kids who are just trying to find some friends and feel like they are a part of something. Four kids trying to get through each day. Rarely has so much fear and anger been directed at so few. I don’t understand what they are going through or why they feel the way they do. But I want them to live. And all the research shows that even a little acceptance and connection can reduce suicidality significantly. For that reason, as much as any other, I have taken this action in the hope that we can continue to work together and find a better way.”

Three days later, the Republican-controlled Utah Legislature voted to override Cox's veto. In late May, the Indiana state Legislature overturned Holcomb's veto, too.

Two Utah families impacted by the Beehive State law have filed suit seeking to block it, while the Indiana ACLU has filed similar litigation there.

Alabama Criminalizes Gender-Affirming Healthcare for Transgender Children

One of the most punitive transgender measures was signed into law by the Republican governor of Alabama, Kay Ivey. The bill criminalizes gender-affirming healthcare for transgender youth, making the administration of such care a felony punishable up to 10 years in prison. 

Gender-affirming care is a sort of catch-all term for treatments that help support a transgender person in gender transition. Gender-affirming care can include nonsurgical procedures like hormone replacement therapy or laser hair removal as well as surgical procedures, like facial reconstruction surgery and sex reassignment surgery. By at least one definition, gender-affirming care includes therapy.

The Alabama bill was signed into law in early April. By the end of the month, the U.S. Department of Justice had filed a lawsuit challenging its legality.

Also in court that month was a Montana law that requires transgendered people to have undergone a sex change operation before being able to officially change their gender on their birth certificates. A judge temporarily blocked enforcement of that law.

Meanwhile, Vermont recently passed a bill that made it easier for its residents to change their gender on their birth certificates while Oklahoma banned the use of nonbinary gender markers on birth certificates issued within its jurisdiction.

Lawmakers in at least 19 states are aiming to make their jurisdictions safe havens for transgender children and their families, including New York, which recently introduced a so-called “trans refuge bill.” The legislation, also introduced in California and Minnesota, forbids transgender children from being separated from their parents if they allow their children to receive gender-affirming care.

“Today, we’re proud to announce that over a third of the states in our country are pushing back on the horrendous anti-trans legislation we’re seeing in Texas and elsewhere,” Democratic California state Senator Scott Wiener said in a press release about the coordinated effort to introduce trans refuge bills across the country.

“Starting with our legislation in California, we are building a coordinated national legislative campaign by LGBTQ lawmakers to provide refuge for trans kids and their families. We’re making it crystal clear: we will not let trans kids be belittled, used as political pawns, and denied gender-affirming care. We won’t let their parents be criminalized or have their kids taken away. This first of its kind legislative effort sends a clear message both to our community and to those who are attacking our community – that we’re all in this together.”

 -- By SNCJ Correspondent Brian Joseph

 

LGBTQ Bills Considered in Nearly 4/5 of States in 2022

At least 39 states have considered bills concerning the LGBTQ community, including anti-LGBTQ measures, such as bans on transgender participation in youth sports, as well as pro-LGBTQ nondiscrimination measures, according to the LGBTQ nondiscrimination campaign Freedom for All Americans. Eleven of those states have enacted such measures.

Subscribe

News & Views from the 50 States

Free subscription to the Capitol Journal keeps you current on legislative and regulatory news.