2022 is already a record year for state bills seeking to curtail LGBTQ rights, ACLU data shows

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The slew of bills is spread across 35 states, 27 of which have legislatures controlled by Republicans. The 162 bills that were introduced through July of this year tally just above the 151 considered for all of 2021, and more than double the 76 considered in 2020.

Although many of the bills didn’t get far in the legislative process, 2022 also already marks a record-breaking year for the number of measures that went into effect: 21 anti-LGBTQ bills have been enacted into law during the 2022 legislative session, according to the ACLU.

The rise in anti-trans bills comes as more and more young people publicly identify as transgender, both aiding the community’s overall visibility in society and fueling an intense political reaction. A study released last month by the Williams Institute at UCLA School of Law found that the number of people between the ages of 13 and 17 who identify as trans doubled, from an estimated 150,000 in 2017 to about 300,000 by 2022.

In pushing the bills, Republicans have raised concerns about fairness in women’s athletics and called for greater parental oversight over what students learn and discuss at school. They’ve also said that children shouldn’t make major decisions about their health at a young age, arguing bans on gender-affirming health care are necessary to prevent such action.

The influx of bills has alarmed both families of LGBTQ youth and advocacy groups, some of which have begun to fight such legislation in court, arguing the measures violate the Equal Protection Clause of the Constitution’s 14th Amendment, among other provisions.

“This is by far the worst year. And every year is worse than the previous years,” Chase Strangio, deputy director for transgender justice at the ACLU, told CNN. “It’s definitely the most extreme anti-trans legislative session that I’ve ever been a part of.”

Here’s what these bills target, and which states have introduced — and passed — anti-LGBTQ policies.

Participation in same-gender youth sports

Republican state lawmakers have in recent years focused on the participation of trans youth in school sports, claiming that transgender women and girls have physical advantages over cisgender women and girls in sports, though a 2017 report in the journal Sports Medicine that reviewed several related studies found “no direct or consistent research” on any such advantage.

Though some of the bans apply just to primary and secondary schools while others are intended to reach students at colleges, or both, they all seek to do the same thing: prohibit trans women and girls from competing on sports teams that are consistent with their gender identity. Many of the measures use the same language or titles, such as “Fairness in Women’s Sports.”

Underscoring the intense desire by conservatives to pass the restrictions, lawmakers in three of those 11 states — including two led by Republican governors — enacted the bans by overriding vetoes issues by their governors.

In issuing the vetoes, the governors stressed that the legislation sought to address a non-issue in their states.

“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,” Utah Gov. Spencer Cox said, noting that studies have shown that the high rates of suicide among trans students can be reduced when they’re shown “even a little acceptance and connection.”

Public opinion, however, is largely on the side of the bans’ proponents. A Washington Post-University of Maryland poll released last month found a majority of respondents saying they opposed trans women competing on teams that match their gender identity at the high school and college level. And a Gallup poll from May 2021 showed that among US adults, 62% of respondents said trans athletes should only be allowed to play on teams that match their gender assigned at birth rather than their gender identity.

The NCAA has come out in opposition to bans on trans women competing on teams that match their gender identity, saying in April 2021 that it’s closely monitoring them to make sure NCAA championships can be held “in ways that are welcoming and respectful of all participants.”

LGBTQ advocates have had some limited legal success in fighting the bans, including last year when a federal judge temporarily blocked West Virginia’s enforcement of its ban after advocates sued the state, with the judge saying he had “been provided with scant evidence that this law addresses any problem at all, let alone an important problem.” And in 2020, a federal judge blocked Idaho’s enforcement of its sports ban.

School and curriculum restrictions

This year has also seen a record number of bills designed to restrict what teachers and educators can say about LGBTQ-related topics in the classroom. In all of 2021, 16 bills were introduced across statehouses that aimed to restrict how schools could approach topics about LGBTQ issues in the classroom.

So far this year, that number jumped to more than 40 bills across 18 states.

Republicans have argued that the measures provide parents with greater oversight over what kinds of topics are discussed at school and that LGBTQ-related topics should be left for families to discuss at home. When Republican Florida Gov. Ron DeSantis signed HB 1557 earlier this year — which opponents have dubbed the “Don’t Say Gay” law — he said it recognizes that “parents have a fundamental role in the education, health care and well-being of their children.”

But Democrats and LGBTQ advocates say the bills are discriminatory. The first lawsuit against Florida’s law was filed in March, with the challengers describing the measure as an “unlawful attempt to stigmatize, silence and erase LGBTQ people in Florida’s public schools.”

Lawmakers have also sought to protect instructors who take issue with using a student’s preferred pronouns. A Tennessee bill, for example, would have prohibited some schools in the states from requiring teachers or other school employees to “use a student’s preferred pronoun when referring to the student if the preferred pronoun is not consistent with the student’s biological sex.”

While sex is a category that refers broadly to physiology, a person’s gender is an innate sense of identity. The factors that go into determining the sex listed on a birth certificate may include anatomy, genetics and hormones, and there is broad natural variation in each of these categories. For this reason, critics have said the language of “biological sex,” as used in bills like the Tennessee one, is overly simplistic and misleading.

Bans on gender-affirming care 

Legislators in 21 states have introduced more than two dozen bills that block access to gender-affirming care to minors, according to the ACLU.

Gender-affirming care is medically necessary, evidence-based care that a person transitioning from their assigned gender — the one the person was designated at birth — to their affirmed gender — the gender by which they identify.

Major medical associations agree that gender-affirming care is clinically appropriate for children and adults with gender dysphoria, which, according to the American Psychiatric Association, is psychological distress that may result when a person’s gender identity and sex assigned at birth do not align.

But conservative lawmakers have argued that decisions around such care should be made after an individual becomes an adult. Many of the bills introduced this year pertaining to the issue criminalize pediatricians who provide this care.

Last year, only Arkansas was able to successfully pass a ban on gender-affirming health care, but this year, two states — Alabama and Arizona — put similar bans on their books, making it illegal for physicians in those states to provide such care to trans youth. A federal judge temporarily blocked Arkansas’ ban last year, and Alabama’s ban was partially blocked by a federal judge in May.

When Arizona Gov. Doug Ducey, a Republican, signed his state’s ban, he said in a statement that his decision was based on his concerns about the seriousness of such health care. “The reason is simple, and common sense — this is a decision that will dramatically affect the rest of an individual’s life, including the ability of that individual to become a biological parent later in life,” the governor said.

Texas, meanwhile, approached the issue differently. Instead of the state enacting a ban similar to those in Alabama and Arizona, Texas Attorney General Ken Paxton released a non-legally binding opinion in February declaring that providing gender-affirming surgical procedures and drugs that affect puberty should be considered child abuse under state law. The move prompted the Texas Department of Family and Protective Services to begin investigating parents who provide their children with such care, causing alarm among families of trans children.

Paxton’s order has been mired in lawsuits since it was signed in February, but the state Supreme Court recently ruled that the child abuse investigations can continue.

After Arkansas passed its ban last year, Dr. James L. Madara, the CEO and executive vice president of the American Medical Association, urged governors nationwide to resist enacting more bans, writing in a letter: “We believe this legislation represents a dangerous governmental intrusion into the practice of medicine and will be detrimental to the health of transgender children across the country.”

Madara emphasized that “improved body satisfaction” is linked to “dramatic reductions in suicide attempts, as well as decreased rates of depression and anxiety.”

Already, the bans are being used as campaign tools in the upcoming midterm elections, underscoring how some Republicans are leaning into the issue to gin up support among their base.

Single-sex facility restriction, ID restrictions and religious exemptions

For LGBTQ Americans, other areas of life were also targeted this year. At the end of May, Oklahoma Republican Gov. Kevin Stitt signed into law a measure requiring students at public schools and public charter schools to use restrooms and locker rooms that match the sex listed on their birth certificates.

It’s the only so-called “bathroom bill” signed into law this session, though several other states considered similar legislation this year. Stitt also approved earlier this year a bill that requires the sex designation on a birth certificate to read as either male or female, prohibiting birth certificates filed with the state from containing an “X” or other marker used by nonbinary individuals.

Religious exemption bills in South Carolina and Indiana, meanwhile, would have allowed adoption and foster care agencies to refuse to provide services to members of the LGBTQ community based on a person’s religious beliefs.

What’s next for the laws?

Though many of the bills introduced so far in 2022 failed, advocates have warned that Republican efforts to pass laws affecting the lives of LGBTQ people — and trans people specifically — will likely intensify in the coming years.

Strangio told CNN that the party’s focus on trans people is a “base-mobilizing tool” that is being steadily tested in the run up to the 2024 general election. “What we are seeing are, you know, sort of the trial balloon testing grounds from 2021 being refined and escalated in 2022 in the lead up to the midterms and then, of course, in the lead up to the 2024 presidential election,” he said.

Some of the laws enacted this year have already or will soon go into effect, creating a new reality for LGBTQ Americans around the country. And lawsuits filed against a few of them could eventually slow down their implementation, including the Utah sports ban, which was challenged in court by the families of two Utah teenagers.

“Litigation is the next step. There are already cases filed in Alabama, for example, challenging the medical care ban there. And there are additional cases that are also being filed across the country,” said Cathryn Oakley, state legislative director and senior counsel for the Human Rights Campaign, one of the nation’s largest LGBTQ rights groups.

Advocates’ legal efforts may soon get a boost from the Biden administration, which last month proposed extending the protections guaranteed under Title IX, the landmark 1972 federal law that prohibits sex discrimination at federally funded schools, to transgender students. In its announcement, the administration said the 50-year-old law should also protect students against “discrimination based on sexual orientation” and “discrimination based on gender identity.”

If finalized, the new protections could be used by lawyers in court as they seek to block some of the measures targeting trans students, giving them a strong federal policy to lean on when arguing the laws violate students’ rights, according to advocates.

“This is a much-needed step in the right direction,” Paul D. Castillo, an attorney with Lambda Legal, an LGBTQ legal advocacy group, said in a statement following the announcement. “These new rules will provide a stronger, clearer measure of recourse and better ensure that victims of unlawful discrimination can avail themselves of the longstanding protections under Title IX.”

July 17, 2022 at 04:36PM

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