A wave of anti-trans bills are hitting statehouses
Experts say that though passing anti-LGBTQ+ bills is a losing battle, some could end up before the Supreme Court.
Originally published by The 19th
The word “transgender” wasn’t always in Jaime Gabrielli’s home. She knew her second child wasn’t like her first, a daughter. This child wanted Batman birthday parties and Spider-Man Halloween costumes and short hair. But no one had named the difference.
“You just think of it like a phase,” Gabrielli recalled. “You know, all kids kind of have their own little quirks.”
When Gabrielli’s son, Justin, was 11, a therapist confirmed that he had gender dysphoria — the psychological stress a person experiences when their body doesn’t align with their gender; he socially transitioned when he entered high school. But finding a doctor well-versed in transgender health in Helena, Montana, wasn’t easy.
Justin would be nearly 15 before he and his family found a doctor to treat his gender dysphoria.
By then, Justin’s need for trans-affirming health care wasn’t a question — it was an urgency, Gabrielli said.
Justin had his first appointment in August 2019, which his mother described as “a lifeline for him.” But this January, Montana lawmakers moved to do something that would have upended his life: They proposed a bill banning doctors from treating transgender youth with affirming care.
Gabrielli and Justin, who didn’t consider themselves political, started lobbying their lawmakers.
“It shouldn’t be a 16-year-old’s burden,” Gabrielli said of her son. “I have really tried to just step in and do everything I can, but I think it’s really important to understand that this is causing young people who already struggle with anxiety and depression and social issues … so much more distress.”
Montana is among a dozen states this year where lawmakers have introduced bills that would limit trans health care for kids; at least 19 states are also considering bills that would limit trans youth from playing sports.
The measures are nothing new. Legislators filed a historic number of anti-LGBTQ+ bills in 2017, topped by only 2020. Lawmakers last year filed a tidal wave of anti-trans measures in state legislatures, but the coronavirus pandemic in many cases shuttered or delayed activity in statehouses before most of them could advance.
But the speed with which anti-trans bills are now advancing is striking to advocates. The Equality Federation, a coalition of statewide LGBTQ+ organizations, closely tracks such legislation. Vivian Topping, director of advocacy and civic engagement of the group, said the movement is especially surprising since many state legislatures have only been in session for a few weeks.
“This is one of the worst sessions for transgender people in recent memory,” she said.
Another bill in South Dakota would bar transgender people from obtaining birth certificates that reflect their names and gender markers. One in Iowa would force schools to alert parents if their children change their pronouns at school. Indiana has introduced a bathroom bill. And a North Dakota bill takes aim at drag queen story times and all other public events that “symbolically respect nonsecular self-asserted sex-based identity.”
Bills targeting trans health care for children have been a rallying cry for conservatives in state legislatures in recent years. They contend that parents are allowing kids to transition before they fully know themselves.
The country’s major medical associations, however, have agreed that trans-affirming health care for minors is medically necessary. In some cases, doctors prescribe transgender youth puberty blockers, which temporarily pause puberty until a young person is old enough to decide if they want to medically transition. The reversible blockers have been shown to reduce suicidality in transgender people later in life, a study last year found.
Alphonso David, president at Human Rights Campaign, argues that bills to limit access to transgender pediatric care and participation in sports are actually unpopular. Recent polling by his organization found that even among people in swing states who voted for former President Donald Trump, support for transgender equality, including in sports and health care, was strong. Among Trump voters, 87 percent or more supported transgender people’s access to medical care and at least 60 percent each of the swing states said transgender people should be able to live freely and openly.
“These bills are politically motivated and allow elected officials to basically perpetuate bias, with a very small but very vocal minority,” David said.
Hannah Willard, senior director of campaign strategy at LGBTQ+ rights organization Freedom for All Americans, claims that the 37 anti-trans bills filed so far are coming from one place — a handful of anti-LGBTQ+ advocacy organizations.
“There are multiple states that have nearly identical language, seeking to ban transgender athletes from sports and seeking to ban best practice medical care,” Willard said. “These are coordinated fringe groups that are trying to push outdated narratives that transgender people don’t deserve dignity and respect like all other Americans.”
In 2017, NBC News reported that extremist anti-LGBTQ+ group the Alliance Defending Freedom was responsible for a string of anti-transgender bathroom bills to hit the nation.
Although several states have introduced anti-trans bills, lawmakers have been hesitant to actually pass the bills. In 2016, when North Carolina passed an anti-trans bathroom measure, it spurred massive boycotts by businesses. The Associated Press predicted $3.76 billion in economic losses over the fallout before the state repealed the law to save face. Since that time, cities and states have balked at passing anti-LGBTQ+ legislation, citing North Carolina.
In South Dakota, which LGBTQ+ advocates say has been used as the testing ground for anti-trans bills, state representatives ultimately canned a bill last January that would have limited transgender health care access for minors, citing the threat of national boycotts.
This year, however, that bill’s champion, Republican Rep. Fred Deutsch, is pushing a measure that would bar transgender people from updating their birth certificates. Deutsch did not respond to a request from The 19th for an interview.
Legal experts believe that statewide efforts to limit trans rights are a losing battle as courts across the nation increasingly rule that civil rights laws preventing gender discrimination apply to LGBTQ+ people. On his first day in office, President Joe Biden signed an executive order directing federal agencies to enforce a 2020 Supreme Court ruling that found that civil rights law barring sex discrimination in the workplace extends to LGBTQ+ people.
Last year, in the hundreds of anti-LGBTQ+ measures to hit state capitols, just one state — Idaho — managed to sign two bills into law. One limited transgender student athletes from competing in sports. The other barred transgender people from updating their birth certificates. However, courts blocked both measures. A federal district court in Idaho found that Lambda Legal had already litigated and won on behalf of trans clients seeking updated birth certificates. A federal judge also concluded that the state had no interest in barring trans girls from athletics.
Even if those measures continue to fail, LGBTQ+ legal experts say that opponents of queer rights might be eyeing another strategy.
Although the Biden administration and the Democratic-controlled Congress are likely to back LGBTQ+ equality, a 6-3 conservative Supreme Court could be the surest path to victory for anti-LGBTQ+ groups.
“If and when states pass any of these bills, then it might be the decision of state attorneys general whether to appeal or not,” said Jenny Pizer, law and policy director of Lambda Legal.
Pizer believes that an anti-LGBTQ+ attorney general could propel one of the bills to the Supreme Court where it might become the law of the land. Last October, Justices Clarence Thomas and Samuel Alito suggested that marriage equality should be overturned, a move that signaled that advancements made by LGBTQ+ Americans could face hostility in the nation’s highest court. Newly-appointed Justice Amy Coney Barrett has ties to anti-LGBTQ+ organization Alliance Defending Freedom, which has historically championed battles against transgender rights.
Regardless of the outcome of the bills in legislatures or courts, advocates say that they have an impact. Topping contends that even if some of these bills do not advance, they do substantial damage.
“Even the introduction of these bills is harmful to transgender youth,” she said. “It sends a message that they’re not welcome.”
Gabrielli said she knows that battle well now. Montana’s transgender medical bill failed on January 27. It’s hard for her to imagine what would have happened had it passed.
“That would have been as completely devastating for my son, I think psychologically, but also with the continuum of care that we have worked so hard to establish,” she said. “It’s not something that you decide impulsively, and it’s not something that you stop doing. It would have put such a huge burden on all of us.”
The Montana legislature is still weighing a trans athletics bill. Gabrielli doesn’t want Justin to have to testify against the measure like he did the health bill, to have to fight such heavy battles when he should be worrying about if he’s fitting in at school. But she also feels like the message to lawmakers isn’t the same if it just comes from her.
“I’m really not going to be the one that helps people understand it,” she said. “I think he just kind of beautifully summed it up, that ‘I know some people will get it and I know some people won’t get it, but this is still who I am.’”