Trans Rights Are Human Rights, But State Legislatures Say Otherwise
Social Justice Policy Brief #37 | By: Alexandra Ellis | April 19, 2022
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2022 is the year of unprecedented anti-trans-legislation. The question becomes, why? It seems every day conservative media is reporting a new anti-trans bill being introduced in State legislatures. No one is saved from this debate: including parents of LQBTQIA+ youth and multinational corporations like Disney.
In 2016, North Carolina passed the controversial HB2 legislation (also called the “Bathroom Bill”) in a special legislative secession. HB2 restricted transgender individuals’ ability to use public restrooms that corresponded with their gender identity. Rather, HB2 required individuals to utilize the bathroom that matched the sex that they were assigned at birth on their birth-certificate. In other words, HB2 limited the movement of trans-individuals and made it against the law to use a bathroom that they were not assigned at birth – making it impossible to live out their gender identity.
The passage of HB2 generated public outrage, and many corporations and celebrities protested the bill. Though still codified, the bill is without teeth due to the American Civil Liberties Union (ACLU)
In the ACLU’s lawsuit, Carcaño v. Cooper (2018) (formerly Carcaño v. McCrory), the ACLU won a preliminary injunction to HB2 as the ACLU argued that HB2 violated the 14th amendment (which protects individuals from discrimination on the basis of sex and gender). In September of 2018, NC District Court also agreed with the ACLU’s plaintiffs that the law likely violated a Charlotte City Council’s ordinance, “making it unlawful to discriminate on the basis of “marital status, familial status, sexual orientation, gender identity, [and] gender expression.” See Carcano v. Cooper at 3; (Doc. 127 at 12–13 (alteration in original); see also Doc. 210 ¶ 200.).
Following the ACLU victory against HB2 came the Supreme Court case Bostock v. Clayton Cnty. (2020), where the Supreme Court found that sex is an included term protected under the Civil Rights Act of 1964. 140 S. Ct. 1731. This meant that the Court recognized that sex discrimination is outlawed by the Civil Rights Act of 1964. Specifically, the case centered on employers who fired or let go of long-standing employees once they came out as either homosexual or transgender. The Court said the termination an individual because of “sex or gender” alone violated Title VII of the Civil Rights Act because Title VII prohibits all forms of discrimination pertaining to sex and sex’s various manifestation (such as sexual orientation or gender identity in this case).
Now in 2022, the year of historic anti-trans legislations, conversative led state governments continue to try to limit transgender rights. As of March 20, 2022, 238 anti-trans legislation bills have been brought forward in state legislatures. Themes of anti-tans bills vary from limitation on trans-individuals to play in high school and collegiate sports, limiting gender affirming care, bathroom use, a child’s ability to be “out” in a classroom, to a K-12 teacher’s ability to refuse to use a child’s chosen pronouns.
However, the most prominent, and copied bill across state legislatures is called “Save Women’s Sports Act,” which limits trans athletes ability to play in high school or collegiate level sports. In fact, since the start of 2022, fourteen states have brought forward a copy-cat or similar “Save Women’s Sports Act”. These states include Kansas, Arizona, Alaska, Mississippi, Pennsylvania, Kentucky, South Carolina, North Carolina, Tennessee, Louisiana, Utah, Oklahoma, Minnesota, and Delaware. These bill aims to amend state codes relating to the correctness of biological sex from official birth certificates of students before students are designated and allowed to play on female teams.
These bills state that students who are assigned male at birth may not play on female sport teams but that individuals assigned female at birth may play on male sport teams. The purpose of this legislation is to discriminate on the basis of sex.
Photo taken from:Ringo Chiu / Reuters
These Bills may have come as backlash from Lia Thomas’s 2022 win at the NCAA Women’s Division I of the 500- yard freestyle swimming event. In an exclusive interview before the event, Sports Illustrated wrote that Lia Thomas has “become a right-wing obsession, a regular topic of discussion on Fox News. Conservative opinion sites have called her a man and deadnamed her, purposely using the name she went by before transitioning.” Right-wing obsession of Lea Thomas’s story and “Save Women’s Sports Bills” has been reported on by MSNCB as connected to dark money, and a strategy to wedge the American vote.
Furthermore, Sport Illustrated reported that hateful comments and threats of violence to Lia Thomas’s life have been so persistent and awful that “During a training trip early this year in Florida, the [Penn] school’s swimmers were asked by coaches not to wear their school gear lest they make themselves targets. The university’s social media handlers have turned off comments on some posts that mention” Lia Thomas as well. Hateful comments on BBC’s reporting of Lia Thomas’ win also sparked conversation about using biology as reasoning to discriminate – similarly in eugenics. One commentor wrote, “Women have uterus’s, produce eggs, have periods, PMS, can reproduce, lactate…compared to a biological man.” This comment and comments of similar nature to this ignore that some individuals assigned female at birth are born without uteruses, are not able to reproduce, will never have periods, or experience PMS. The anti-trans arguments based on biological sex, sex characteristics, and scientific defense of gender attributes is very much an arbitrary defense to advocating for discrimination based on sex. It is a fear-based response very similar to the “scientific” defense of Jim Crow laws in the south, which promoted legal de jure segregation based on race and such Jim Crow laws have been discounted and these scientific thoughts have been abandoned.
Additionally, national anti-trans violence is at an all-time high. Even citizens in the sleepiest corners of America, like liberal Morriston, VT, are not immune to the messaging of calls for anti-trans legislation. The Vermont Digger reported on April 13, 2022, of Fern Feather’s tragic death by homicide. Fern Feather, a resident of Heinsberg, Vermont, was found killed in Morriston, Vermont on Wednesday morning by Vermont police. In response to the Fern’s death, Vermont Governor Phil Scott condemned the hostility towards the transgender community.
In a speech, Governor Scott said, “[e]xploiting fear and targeting divisive rhetoric at people who are just trying to be who they are is hateful and can lead to violence.” The decisive rhetoric of the anti-trans movement that has taken foothold is leading to real violence against the LBTQIA+ community. Yet, there does not seem to be as much celebrity or corporate commendation of the anti-trans movement as there was back in 2016 – with individuals speaking out against NC’s HB2.
For example, it took a multinational walk out of Walt Disney’s LBTQIA+ employees for the CEO of Disney, Bob Chapek, to speak out against Florida’s HB 1157, “Parental Rights in Education” bill (dubbed colloquially the “Don’t Say Gay Bill”). In an open letter, employees of the Walt Disney Corporation said that the company’s stance against the bill has “utterly failed to match the magnitude of the threat to LGBTQIA+ safety.” The Walt Disney Corporation has considerable influence in the Florida legislature. In fact, the Disney corporation is cited as contributing 4.8 million to the Florida 2020 election cycle. As a result, journalists, employees, and fans of the Disney Corporation have criticized the company’s lack of advocacy against the bill, describing the behavior of the company as “disheartening”.
Click or tap on resource URL to visit links where available
To watch for Anti- Trans legislation, go to https://freedomforallamericans.org/legislative-tracker/anti-transgender-legislation/.
To learn more about Walt Disney’s employee walk-out because of the Don’t Say Gay bill listen to NPR podcast: https://www.npr.org/2022/03/22/1088048998/disney-walkout-dont-say-gay-bill.
To learn about how to have tough conversations about trans-rights, watch ACLU’s https://www.aclu.org/news/lgbtq-rights/your-guide-to-talking-about-attacks-on-trans-youth.
To get involved with dismantling Anti – Trans legislation follow ACLU’s efforts to challenge laws and consider taking a pledge to support trans youth or donate to the cause at: https://action.aclu.org/petition/take-pledge-support-trans-youth-now.