A transgender “bathroom bill” reminiscent of one in North Carolina that caused a national uproar now appears to be on a fast-track to becoming law in Texas, though it may only apply to public schools. (May 22) AP
Nearly halfway through 2017, LGBT activists say they have weathered a blitz of bills in statehouses that has many in the LGBT community feeling — for the second straight year — that they have a bull’s-eye on their backs.
More than 100 anti-LGBT bills in 29 states have been introduced in the past five months, according to the Movement Advancement Project (MAP), a think tank that researches and analyzes state and federal laws with LGBT implications.
Even though only six measures in five states have become law so far this year, the number of bills that took root speaks volumes, said Alex Sheldon, MAP research analyst. “States like Texas and Arkansas are now trying to pass multiple bills that target people specifically. The clear message to LGBT people: You are not welcome.”
In 2016, there were about 220 anti-LGBT bills introduced at the state level, according to MAP, four of which were approved.
A backlash to the 2015 Supreme Court ruling sanctioning same-sex marriage and the strong stance by the Obama administration for LGBT rights are among catalysts behind the bills, which signal a troubling turn in the quest for equal rights, said Naomi Goldberg, MAP policy director.
“We were heading in the right direction” after 2015, she said. “Now, there’s definitely been a shift. States are really going after the most vulnerable people. We are playing defense.”
The aggressive action by legislatures stands in stark contrast to a sentiment by many activists that there is broad public support for LGBT protections, as well as progress at the local level in cities and towns. “There is a real disconnect around fairness and equality,” Sheldon said. “It makes you wonder: Are legislators out of touch?”
Bills cite religious freedom
Religious exemption bills made up the bulk this year: 45 bills introduced in 22 states. Those bills would let people, churches and sometimes corporations cite religious beliefs as a reason not to enforce a law, such as declining to marry a same-sex couple.
Of the six total bills that did pass in 2017, four of them provided religious exemptions. Two of them, for example, in South Dakota and Alabama, would let state-funded adoption and foster agencies refuse to place children with same-sex couples.
Supporters of religious exemption bills say “freedom of conscience” is an essential right. “Conscience exemptions can be found in a myriad of state and federal laws on all sorts of issues,” said Bruce Hausknecht, judicial analyst at Focus on the Family, a Christian conservative organization. “It’s that type of protection of our freedom that makes America exceptional.”
The bills also “protect the safety and privacy of women and children,” he said. “We can all agree that these are worthy goals.”
The transgender community was singled out, MAP research shows, with 39 bills introduced in 21 states: from banning transgender people from using restrooms that match their gender identity to preventing them from obtaining accurate documents like driver’s licenses.
The state action played out amid rollbacks at the federal level. In February, the Justice and Education departments reversed guidance the Obama administration had issued that said Title IX protected the rights of transgender students to use facilities that match their gender identity
Schools generally have been leaders in understanding the needs of transgender students, Goldberg said. “But with the rescinding of the (Title IX) guidance, when a school doesn’t do a good job, the Department of Education won’t stand up for them. That’s what is problematic.”
Perhaps no state felt the weight of the 2017 legislative session like Texas, which saw about two dozen anti-LGBT bills introduced this year, activists say. “It has just been a brutal session for targeting people that were already marginalized and making their lives more difficult,” said Rebecca Robertson, legal and policy director for the ACLU of Texas.
Two bills took on an 11th-hour fast track in the final days of Texas’ legislative session: One was a bathroom bill targeting transgender people that went through a few permutations in the state House and Senate before collapsing over a deadlock among Republicans. Texas Gov. Greg Abbott hasn’t ruled out reviving the bill in a possible special legislative session in June.
After a ruckus in North Carolina over last year’s HB2 bathroom bill, which led to protests, economic boycotts and an eventual compromise bill, Robertson said activists are astounded a similar measure was considered in their state. Major companies such as Facebook and Apple have lined up against the bill.
“The business community has been adamant in opposition to all of these discriminatory measures, but that hasn’t won the debate,” she said.
The second was a bill, which was approved, that allows publicly funded foster care and adoption agencies to refuse to place children with certain people — such as LGBT couples — because of religious reasons. It also would let state-funded providers discriminate against children in their care, for instance withholding services such as transition care, activists say. Abbott has 20 days from the session’s adjournment to sign the bill, veto it or allow it to become law without his signature.
Hundreds of faith leaders in Texas have spoken out against those bills, such as the Rev. David Wynn of Fort Worth.
“As a Christian pastor, I honestly don’t get it. I think we are all reading the same Bible, but it’s hard to tell,” he said. “You tell me what Jesus would do. Jesus never said one word about homosexuality or gender … but he did have a whole lot say about taking care of each other..”
When states don’t act
Even in some states that saw a flurry of “good bills,” the failure of these to win approval was disappointing, activists say.
Florida, for example, had nearly a dozen pieces of legislation that would have provided discrimination protections, stronger anti-bullying laws and a ban on conversion therapy. None passed.
“It’s gone from will it hurt you to do the wrong thing to will it hurt you not to do the right thing,” said Nadine Smith, CEO and co-founder of civil rights group Equality Florida.
The most sweeping of the bills, the Florida Competitive Workforce Act, would prohibit discrimination based on sexual orientation or gender identity in employment, housing and in public places like restaurants.
The bipartisan bill had 71 co-sponsors or 44% of the Legislature, Smith noted, an “unprecedented number” that shows wide support. But the legislation never made it to the floor for a hearing in either chamber in the legislative session that just ended in May.
“It’s disappointing that the leadership blocked it from being heard,” Smith said. “It’s the right thing to do economically. Businesses saw it as a way to draw top talent.”
Smith, who was part of a historic Oval Office meeting with President Clinton and LGBT leaders in 1993, is undaunted. She said the legislation will be reintroduced next year.
“We see Florida as a breakthrough state,” she said. “A victory in a Republican-dominated state would demonstrate that LGBTQ equality is a bipartisan issue as it must be to win the country.”
Smith also cites the strides the state has made at the local level — even in places like Jacksonville, considered a conservative stronghold.
“We have passed more local non-discrimination laws than any other state in the country,” she said, noting that those protections cover 60% of Floridians.
Smith said LGBT activists will continue to rely on a three-pronged strategy: nurturing business support, engaging faith leaders and building bipartisan coalitions in Tallahassee.
And then there is the voice of the people in towns small and large.
“We have spent years pursuing local victories one at a time in places where people would step up to the microphone, their voices shaky, and they would just out themselves,” she said.
LGBT? Where you live matters
Does where you live dictate what protections you have? If you’re part of the LGBT community, the answer is yes, MAP’s Goldberg said. But the dynamic is complicated.
“It used to be simply that you you’d cross the border from a state where you could get married to one where you can’t,” she said. “But now you can go from being protected in the workplace by a state law to not being protected by a state law … or a transgender person who can use a restroom in school, and in the next state you can’t.”
Sarah Scanlon, 53, knew since she was 5 that she was gay. But growing up in Jonesboro, Ark., she said it “was never safe for me to be who I am.” She left the state in her mid-20s for a more welcoming Seattle. “I thought, wow, this is a whole new world.”
But even in Washington state, she felt the sting of discrimination. “I was fired from a job and punched on a public bus because I was gay.”
Scanlon, who now lives in Little Rock with her wife and 6-year-old daughter, acknowledges the tough pieces of legislation that cropped up in Arkansas’ Legislature, including a “really horrible one that defined indecent exposure.”
The bill — which did not make it into law — would have expanded the indecent exposure statute and included broad wording that could essentially criminalize a transgender person for using the bathroom.
Many lawmakers at the Statehouse “don’t have a worldview,” Scanlon said. “They have a backyard view.”
But she sees a growing awareness among state residents about what is happening at the Statehouse. “The public is saying, hey, quit picking on them so much. There are more important things to be dealt with here.”
Goldberg said the last five months have been challenging to say the least. To be an LGBT person in a place like Texas is “very scary right now,” she said. “But when you see the diversity of support and you see people saying no (to discrimination), that is heartening.”
The massacre a year ago at the Pulse nightclub in Orlando — an LGBT safe haven — had a “profound effect” on galvanizing support from faith leaders and some elected officials in Florida, Smith said.
Smith, who lives in St. Petersburg with her wife and son, 6, often makes the drive back to Callaway, Fla., to visit her 81-year-old father. “The (LGBT) protections that exist along that drive, exist and fall away depending on what county I am driving through.”
For Smith, no one symbolizes an evolution on LGBT issues more than her dad. He had great difficulty accepting that his daughter was a lesbian. But eventually the military veteran embraced Smith, walking her down the aisle at her wedding — and at age 79 made a commercial for LGBT equality.
“My father has been the journey of the country on this issue,” Smith said.