A User's Guide to This Year's Transphobic Legislation
February is upon us, and the picture for anti-transgender legislation has begun to emerge. In 2015 there were 20 state-level bills intended to target transgender people. All of them were either defeated or carried over to the next legislative session. This year has seen the number grow to at least 28 pieces of legislation, and we'll likely see more before the sessions are over. These bills fall into one of several categories:
1. Bills targeting transgender students in education and sports (Nine States: Indiana, Illinois, Minnesota, Missouri, Oklahoma, South Dakota, Tennessee, Virginia, Wisconsin)
More than half of the anti-transgender bills filed this year target transgender children and youth in schools. While the Department of Education has clarified that Title IX protections against sex discrimination apply to transgender students, these bills seek to undermine these federal protections that cover areas from sports to gender expression. An increasing number of school districts and state departments of education have adopted policies and guidance to protect transgender students from bullying and discrimination, and opponents hope to use fearmongering tactics to reverse them.
The bill proposed in South Dakota takes further steps to encourage schools to defy the federal government and the Department of Education by requiring that the state — rather than the schools — take on the legal and financial burden of defending against Title IX claims by transgender students. This bill has already passed the House in South Dakota, and so it has a greater likelihood of becoming law.
Perhaps even more damaging, school districts throughout the country are considering school policies that would exclude transgender students from using gender-segregated facilities in accordance with their gender identity. Unlike the state bills, several of these school district policies have passed, forcing advocates to bring lawsuits to stop them. Transgender students are often subjected to increased bullying, harassment, and discrimination as a result of these hateful and discriminatory efforts.
2. Limiting access to gender-segregated public facilities (Five States: Indiana, Massachusetts, Missouri, Virginia, Washington)
After the Houston Equal Rights Ordinance debacle, and based on polling data, conservatives have zeroed in on bathroom access for both children and adults as an area where they can potentially roll back basic human rights for both the LGBT community and other marginalized people. For example, the defeated measure in Houston provided protections against discrimination on the basis of 15 characteristics, including race, sex, disability, sexual orientation, and military status. To kill HERO, opponents falsely claimed that allowing trans people to use the bathrooms of their choosing — one small aspect of HERO — would lead to women being sexually assaulted in bathrooms. That lie was used to drum up big crowds at local hearings, and conservative legislators have used the same claim to rally their base against LGBT protections.
3. Prohibiting transition-related treatment for prisoners (One State: South Carolina)
This is a carry-over from 2015, where the bill quietly died in committee. This bill is likely a reaction to recent cases in Georgia, Massachusetts, and California in which courts ruled that transition-related care for transgender prisoners is medically necessary, and withholding it is a violation of the Eighth Amendment.
4. Preventing transgender people from amending their birth certificates (One State: Virginia)
This bill would prevent transgender people born in Virginia from changing their birth certificates to match their lived identities. Tennessee passed a similar law in 1977, and attempts to change the law through legislative and legal action have failed. This has a significant impact on transgender people, since many states base driver’s license gender markers on a person’s birth certificate. Additionally, many jobs require submission of a birth certificate as ID. Outing yourself as transgender during the hiring process significantly reduces job opportunities, even in liberal areas with strong LGBT protections.
5. Requiring transgender people to disclose their surgical history when obtaining a marriage license (One State: Oklahoma)
This bill addresses an essentially nonexistent problem of transgender people marrying cisgender people without disclosing their surgical history. The number of people who would be affected by this bill is likely negligible — it serves little purpose except to stigmatize transgender people and label their marriages as artificial.
6. Defining “sex” so as to exclude transgender people from state legal protections in employment and education (One State: Virginia)
This would prevent transgender people from making claims under the Virginia Human Rights Act's ban on sex discrimination. It is a response to the nearly overwhelming number of court decisions holding that discrimination against transgender people is sex discrimination under Title VII of the U.S. Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. If this passes, transgender Virginians would need to make all discrimination claims in federal court, which often requires more effort than a state-level claim.
Why are these bills being filed?
These bills are being filed primarily by religious conservative lawmakers, many of whom are linked with the Family Research Council, Liberty Counsel, and the Alliance Defending Freedom. They are following a legislative template laid out by FRC to deny transgender people basic access to the workplace, schools, and public accommodations like restaurants and gyms and to deny them legal recognition.
What will happen with these bills?
Fortunately, the majority of these bills will not move forward. They are often introduced by extremist lawmakers who are at odds even with other members of their caucus, and there is frequently little political will to focus on such a nonissue rather than more important legislative priorities. As in 2015, most of these bills will die in committee, given how controversial they are. These bills tend to be poorly written, vague, and broadly worded, which can lead to substantial unintended consequences. Moreover, many of the bills clearly conflict with federal law or are unconstitutional, meaning they are likely to be overturned when challenged in court. All of this makes many lawmakers hesitant to move them through the legislative process.
Finally, transgender people in many states and national LGBT organizations are working to oppose these measures, both vocally through organizing and member outreach and behind the scenes through discussions with lawmakers.
What will happen if some of these actually pass?
If one of these bills were to pass, it would likely be challenged in court by legal groups like the American Civil Liberties Union or National Center for Lesbian Rights, and a stay would be requested. If the law is unconstitutional or clearly conflicts with federal law, it is more likely to be struck down by a court. At this point, we can’t know the likelihood that these bills will be overturned, and challenging a law can take several years, so it is very important to defeat these measures at the legislative level.
Finally, as seen in Indiana last year, passage of an anti-LGBT law can be very costly. Indiana lost $60 million in revenue because of its passage of a measure that would allow discrimination against LGBT people based on religious objections (later amended to ostensibly prevent discrimination). Such a result would likely discourage other states from passing a similar law.
What’s the verdict?
Religious conservatives hope to play upon unfounded fears regarding transgender people to energize their base and reignite the culture war against the LGBT community after the marriage equality victory. Opponents of equality believe they have found a vulnerable target in transgender people. However, the bills they are advocating for conflict with federal law, the Constitution, and common sense.
Trans people are more likely to be the victim of violence in gender-segregated spaces — there is no evidence to assume that transgender people or mythical “people claiming to be transgender” enter these spaces to engage in illegal or improper purposes. And if they did, there are already laws to prohibit such conduct — these laws do nothing new but stigmatize transgender people.
ALISON GILL is an accomplished attorney and a nationally recognized expert on LGBT law. Alison is a senior partner at the Parallax Group, focusing on policy implementation and compliance, legislative drafting, advocacy strategy, and risk mitigation.
BRYNN TANNEHILL graduated from the Naval Academy in 1997 before serving as a campaign analyst while deployed overseas. She later worked as a senior defense research scientist in private industry; she left the drilling reserves and began transitioning in 2010. Since then, she has written for OutServe, The New Civil Rights Movement, Salon, Everyday Feminism, The Good Men Project, Bilerico, and The Huffington Post.