Anti-Transgender

Following the Supreme Court’s 2015 landmark decision in Obergefell v. Hodges, which affirmed that states cannot discriminate in benefits on the basis of sexual orientation and knocked down same-sex marriage bans across the country, conservative lawmakers began sponsoring laws targeting transgender people for exclusion from public spaces such as restrooms consistent with their gender identity.

Since 2013, at least 30 states have attempted to pass legislation that would specifically discriminate against transgender people. Legislation varies from refusing transition-related care in prisons to regulating sports participation in schools. However, the majority of attempted legislation to date has been primarily focused on restricting access to public spaces. In fact, since 2015, at least 23 states have attempted to pass legislation that specifically prohibited transgender individuals from using public facilities based on their own gender identity.

Examples of Anti-Transgender Laws (last updated September 12, 2018)

“Bathroom Panic” Bills

On March 23, 2016, then Gov. Pat McCrory signed the North Carolina Public Facilities Act (HB 2). The law prohibits transgender individuals from using public restrooms based on their own gender identity. The law also established a statewide nondiscrimination ordinance that explicitly supersedes any local nondiscrimination measure. The United States DOJ sued the state in May 2016, claiming the law was discriminatory under Title VII and Title IX of the Civil Rights Act and that it violated the Violence Against Women Act. 

On August 26, 2016, a federal judge issued a narrow, temporary injunction blocking the University of North Carolina from enforcing the public restroom provision of the law. The law was partially repealed on March 30, 2017, with the passage of HB 142. The new law repealed the provision which prohibited transgender individuals from using public restrooms in accordance with their gender identity. However, the law still prohibits local municipalities from passing their own nondiscrimination ordinances related to private employment practices or regulating public accommodations through 2020.

On May 13, 2016, the U.S. Department of Justice and the U.S. Department of Education introduced Title IX guidelines regarding civil rights protections for transgender students. Among others, the joint guidance called on schools to allow students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity.

In June, 2016, Kansas passed a resolution stating that the Kansas State Senate supported the rights of the states and local school board, not the federal government, to direct education policy. The resolution encouraged the U.S. Congress to curtail the Obama Administration Title IX guidance by using every legislative tool in their power, including passing legislation to protect “student’s privacy rights.” New Jersey and Oklahoma introduced similar legislation to protect schools that refused to comply with the federal guidelines. On February 22, 2017, the Trump Administration withdrew the Obama-era guidelines.

While the language varies from state-to-state, most “bathroom panic bills” mirror model legislation drafted by Alliance Defending Freedom.

Local Nondiscrimination Laws

On February 24, 2015, Arkansas enacted the Intrastate Commerce Improvement Act. The law prohibits any county, municipality or other political subdivision from adopting or enforcing a local law, ordinance, resolution, rule or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law. In addition, any local laws that may have protected LGBTQ people prior to its passage were nullified. Mississippi, Texas, and West Virginia attempted to pass similar legislation, but have yet to pass their own laws. (For a more detailed discussion on legislation targeting the entire LGBTQ community, click here.)

State First Amendment Defense Acts (FADAs) and Government Nondiscrimination Acts

During the 2015 and 2016 legislative sessions, ten states (GA, HI, IL, IA, MS, MO, OK, SD, VA, and WA) attempted to pass super-sized religious freedom laws. Occasionally referred to as Government Nondiscrimination Acts or Religious Freedom Defense Acts, state FADAs tend to include at least two of the following protected religious beliefs or moral convictions: (1) marriage is between one man and one woman; (2) sexual relations are properly reserved for such marriage; or (3) male and female refer to biological sex at birth.

In April, 2016, Mississippi enacted HB 1523, a law permitting individuals and businesses to discriminate against LGBTQ people based on certain religious beliefs or moral convictions. The law not only permits people to refuse performing same-sex marriages, but also allows people to refuse foster care and adoption services; deny psychological, counseling, or fertility services; and ban transgender individuals from using bathrooms in accordance with their gender identity. The controversial law was viewed unconstitutional by many, including a federal judge who blocked the law in June. (For a more detailed discussion on religious freedom laws, click here.)

During the 2017 and 2018 legislative session, eight states (AR, CO, KY, IL, OK, TX, WA, and WY) attempted to pass some form of a First Amendment Defense Act. All efforts failed.

Laws