State legislators across the country already have started filing bills for their 2021 sessions that would target the rights of transgender youth.
Transgender rights activists are preparing to fight what is expected to be a flurry of proposed state laws threatening young people’s access to gender-affirming healthcare and their ability to participate in sports according to their gender identity.
Altogether, 19 state legislatures failed to pass bills earlier this year that would have outlawed — and in some cases criminalized — gender-affirming healthcare for transgender youth. And 16 out of 17 states failed to pass bills restricting transgender youth participation in sports.
Undeterred, legislators have begun filing the proposals again.
“Legislatures are starting early and are extra cruel this year despite the pandemic,” tweeted Chase Strangio of the American Civil Liberties Union, who keeps track of anti-transgender bills across the nation. “The judiciary is even more hostile, so we need to stop these bills from passing.”
However, the U.S. Supreme Court recently refused to consider a petition from parents who objected to a decision by a school district in Oregon to allow a transgender boy to use the boys’ bathrooms and locker room. But that doesn’t necessarily mean the court endorsed the school district’s actions, as the Supreme Court usually accepts only about 80 cases each year out of 7,000 to 8,000 petitions it receives.
Alabama, Texas and Missouri eye limits on transgender youth healthcare
As Strangio reported, the first bill introduced into the Alabama House of Representatives for 2021, HB1, is a bill that makes it a felony for doctors to provide such healthcare to youth. It refers to these treatments as “dangerous and uncontrolled human medical experimentation that may result in grave and irreversible consequences” to the physical and mental health of patients.
In Texas, proposed legislation would classify such healthcare as child abuse.
And a bill in Missouri would revoke the licenses of medical professionals who provide such healthcare, while subjecting parents to investigations for child abuse.
“Denying best practice medical care and support to transgender youth can be life-threatening,” Strangio has written. “It has been shown to contribute to depression, social isolation, self-hatred, risk of self-harm and suicidal behavior, and more.”
States also look to ban transgender sports participation
In addition to healthcare, proposals would keep transgender youth from participating in sports according to their gender identity. The first of those for the 2021 legislative session has been introduced in Tennessee.
“I think this year is poised to be particularly bad,” said Carl Charles, a staff attorney with Lambda Legal, an organization that fights for civil rights for the LGBT community. “But I think we have the power to change that.”
Out of dozens of bills introduced around the country in 2020, Idaho was the only state to pass into law restrictions on intersex and transgender children from participating in sports. None of the bills regarding transgender healthcare passed.
Hence, Idaho became the first and only state to ban transgender female athletes from participating in women’s sports.
According to the statement of purpose that accompanied the bill, it was to “ensure that opportunities continue for girls and women competing in athletics. Boys and men will not be allowed to participate on girls or women’s teams, as defined by their inherent differences that are physiological, chromosomal and hormonal.”
Judge blocks Idaho sports law
The ACLU sued to block the Idaho law, called the “Fairness in Women’s Sports Act,” and federal Judge David C. Nye issued a preliminary injunction preventing it from being enforced.
The judge noted that the law differs from “the policies of elite athletic bodies that regulate sports both nationally and globally — including the National Collegiate Athletic Association and the International Olympic Committee — which allow transgender women to participate on female sports teams once certain specific criteria are met.”
Nye also noted that the law contains a provision allowing “a currently undefined class of individuals to challenge a student’s sex.”
The judge added, “If the sex of any female student athlete — whether transgender or not — is disputed, the student must undergo a potentially invasive sex verification process. This provision burdens all female athletes with the risk and embarrassment of having to ‘verify’ their ‘biological sex’ in order to play women’s sports. Similarly situated men and boys — whether transgender or not — are not subject to the dispute process because Idaho’s law does not restrict individuals who wish to participate on men’s teams.”
Nye wrote that evidence from medical experts demonstrated that transgender women who undergo hormone therapy have no physiological advantage over other women athletes. The judge concluded that the law is likely unconstitutional.
The state has appealed the ruling. The state argues that males have physiological advantages in sports, and that it’s unfair to allow biological males to participate in female sports.
Several states filed a brief in support of the state of Idaho in the appeal: Nebraska, Alabama, Alaska, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Oklahoma, South Carolina, Texas and West Virginia.
The states’ brief says they have an interest in providing “the best way to promote equal opportunities for female student-athletes and to ensure fairness in women’s high-school and college sports.”
Other states tried in 2020 and may try again
Several, but not all, of those states had bills introduced in their legislatures in 2020 to restrict healthcare for transgender youth or prevent them from playing in sports according to their identified gender. With the exception of Idaho’s, none of the bills became law.
Altogether, 16 additional legislatures considered bills restricting transgender athletes’ participation in sports while 15 states considered bills restricting gender-affirming healthcare for transgender youth, according to a tally kept by the ACLU.
Charles said the bills failed for a variety of reasons. In some cases, advocates fought hard against them and succeeded in securing the votes against them. In others, the bills failed to get committee hearings.
“The appetite to continue on with such a targeted attack on children was not very palatable,” Charles said. Some questioned “why are we criminalizing doctors who treat children? Folks in the medical community were also taking a stand.”
Charles said some bills were derailed by the pandemic, which took the wind out of legislative sessions across the country.
Yet with the pandemic still raging, the bills are coming back in some places.
“While thousands of people don’t have enough food to eat,” Charles said, “instead of helping people, we have legislators … trying to do harm.”
For example, Charles, who is transgender, said it’s false that children are being given irreversible treatments without regard for consequences. He said it’s a stereotype that all transgender youth are given sex hormones as soon as they come out as transgender.
He said youth are commonly given puberty blockers, which have been shown not to cause harm. “All it does is give young people time and delays puberty, essentially, until they have time, and they are ready and decide, with doctors, that cross sex hormones are appropriate for them.”
He said it’s “really troubling” that these youths’ private healthcare decisions are being “discussed by strange adults in state legislative houses. … Like anyone undergoing any kind of medical treatment for any purpose, a person’s healthcare is private.”
Charles said the backers of these bills are “at best, incredibly misinformed, or at worst, cruel.”
Contact Elaine Silvestrini at Elaine@legalexaminer.com. Follow her on Twitter at @WriterElaineS.