Health Care

Red states broaden assault on transgender rights

Republicans are introducing a new round of bills that insert state government into efforts to limit transgender rights, for both minors and adults.
Florida Rep. Clay Yarborough, second from right, watches a vote in the House Chamber at the Florida Capital in Tallahassee, Fla., Monday March 5, 2018. (AP Photo/Mark Wallheiser)

Republican lawmakers kicked off legislative sessions this year with a wave of new measures restricting the rights of transgender minors by limiting access to doctor-approved health care, bathrooms, changing facilities and sports leagues that conform to a person’s gender identity.

Now, as if to raise conservative colleagues who made opening antes, some Republicans are introducing a new round of bills that insert state government into efforts to limit transgender rights, for both minors and adults.

In Florida this month, conservative lawmakers introduced bills that would prohibit doctors from prescribing gender-affirming care for minors. The Senate version of the bill, sponsored by Sen. Clay Yarborough (R), would permit the state to pursue criminal charges against anyone who violates its provisions.

Yarborough’s legislation would also permit Florida courts to take “temporary emergency jurisdiction” over children who are “at risk of or are being subjected to” gender-affirming care.

“We need to let kids be kids, and our laws need to set appropriate boundaries that respect the rights and responsibilities of parents, while protecting children from serious health, safety and welfare consequences of social agendas that are totally inconsistent with how the overwhelming majority of parents want to raise their children,” Yarborough said in a statement.

But allowing court intervention worries equal rights advocates, who say it would permit the state to get involved in cases in which a parent who does not accept his or her trans child could block care that had been approved by a parent who has custody — even if the child resides in another state.

“It purports to allow a parent to essentially kidnap a child,” said Sarah Warbelow, legal director of the Human Rights Campaign. “That is essentially unheard of.”

“As far as we are aware, this is the first proposed bill of this kind,” said Carl Charles, senior attorney at Lambda Legal, an LGBTQ rights organization.

LGBTQ activists said the measure was reminiscent of an order signed by Texas Gov. Greg Abbott (R) last year, which allowed the state to investigate parents whose children were undergoing gender-affirming care. Several cases in which parents were under investigation are now working their way through state courts there.

“This is not a new tool for them. They’ve been trying to find ways to seize trans children, separate them from loving families that are accepting,” said Devon Ojeda, senior national organizer at the Nation Center for Transgender Equality. “The government is trying to seize these kids. There’s a lot of ramifications of that, and I think there will be a lot of consequences [in] litigation.”

Yarborough did not respond to a request for an interview made through his two legislative aides.

Two other states are advancing measures that would impact transgender rights even in the face of warnings from state officials that doing so could jeopardize huge amounts of federal funding.

The Tennessee Senate on Monday approved a bill that would prevent someone from changing their gender identity on a driver’s license or birth certificate. The measure would define someone as a male or female under state law based on that person’s anatomy at birth.

A fiscal note attached to the bill warns Tennessee could lose $1.2 billion in federal education funding, and another $750,000 in federal grants aimed at protecting women and children. The fiscal note did not address grants to local governments that might be impacted as well.

Montana’s Senate Finance and Claims Committee on Monday advanced a bill to define sex under state law. That measure would only allow someone to define themselves as female if they produce eggs, and someone to define themselves as male if they produce sperm.

“We as policymakers need to decide where we’re going to use sex and where we’re going to use gender,” state Sen. Carl Glimm (R), the bill’s chief sponsor, told the committee, according to The Missoulian.

The state Department of Corrections said last week that the bill would cause “significant cost” to the state, because it would create a conflict between state and federal law — and open the department to liability in federal court. The Office of the Commissioner of Higher Education also flagged potential conflicts with federal anti-discrimination law.

“There will be other bills to make statements about policy on, but this one — this one will cost us a lot,” Montana Sen. Ellie Boldman (D) told her fellow committee members before Monday’s vote.

Three states this year — Mississippi, Utah and South Dakota — have approved bans on gender-affirming care for transgender minors. Similar bills are likely to emerge in Texas and elsewhere before legislative sessions wrap up. Existing laws in Alabama and Arkansas are on hold pending litigation.

But the Montana and Tennessee legislation takes the campaign against transgender people a step further, applying to those who are over the age of consent.

“These attacks on youth are part of a broader plan that opponents of LGBTQ equality have. As they had success in state legislatures in attacking transgender kids, their intention was to move to attacking transgender adults as well,” Warbelow said in an interview.

“By defining sex in an unsustainable, essentialist way, it really makes LGBTQ people a stranger to state nondiscrimination laws,” Warbelow said. She pointed to Obergefell v. Hodges, the 2015 U.S. Supreme Court decision that expanded the right to marriage to include all couples. “This is a very crass and intentional effort to buck the Obergefell opinion in the Supreme Court.”