As two anti-LGBTQ bills become law in Tennessee, dozens more advance across the US
As two anti-LGBTQ bills become law in Tennessee, dozens more advance across the US
Anti-trans bills banning gender-affirming care for minors have passed one legislative chamber in at least 10 other states, with many other anti-LGBTQ bills moving forward as well.
Republican Tennessee Gov. Bill Lee signed two anti-LGBTQ bills into law Thursday, enacting the fourth ban on gender-affirming care for minors across the country this year and the first bill criminalizing certain performances of “male or female impersonators.”
I’ve covered both of these bills previously at Law Dork.
They are the fifth and sixth anti-LGBTQ bills signed into law in the United States this year.
Under S.B. 1, the ban on gender-affirming care for minors not only applies going forward, but providers must stop providing treatment to current patients by March 31, 2024. Doctors face the loss of their medical license, private lawsuits, and litigation from the state’s attorney general if they violate the new law.
The ACLU and Lambda Legal have said a legal challenge to the law will follow. Tennessee now joins Utah, South Dakota, and Mississippi with bans on such care already signed into law this year.
Under S.B. 3 — which was passed (as amended by the House) by the Senate on Thursday just hours before Lee signed it — it will be a crime for performances by “male or female impersonators” that meet certain conditions regarding the sexualized nature of those performances to be performed on public property or where minors could see the performance.
I discussed those conditions last week when I wrote about the House amendments. They do not encompass all drag, and they would — if read plainly — be rather narrow. As discussed previously, only “adult-oriented performances that are harmful to minors, as that term is defined in [Tennessee law] § 39-17-901,” are covered. That definition of “harmful to minors” is particular, describing, effectively, a minors-focused obscenity test. Additionally, the definition of “entertainer” in the law, as I also discussed previously, further limits the law to cover only performances of a truly sexualized nature.
Of course, there is nothing inherently wrong with such performances, and this law makes them illegal in a wide variety of spaces. I have previously discussed my concern about how this could criminalize drag shows at public universities and potentially in pride parades and at pride festivals, among other places.
The law is not as broad as the bill was initially, but it still criminalizes certain activities that implicate important First Amendment rights and has even worse possible consequences in terms of the risk of overprosecution and chilling of expressive conduct and even actual speech.
Unfortunately, these are nowhere near the last anti-LGBTQ bills making their way forward in legislatures, as detailed, in large part, in the ACLU’s legislative tracker.
One of the two legislative chambers in several other states have also passed bans on gender-affirming care for minors in the past few weeks, including Arkansas (S.B. 199), Indiana (S.B. 480), Kansas (S.B. 233), Kentucky (H.B. 470), and North Dakota (H.B. 1254). Law Dork has previously reported on similar bans passing a chamber in Idaho, Montana, Oklahoma, West Virginia, and Wyoming.
A significantly more expansive ban than the one that previously passed the Oklahoma Senate passed the Oklahoma House on Feb. 28. It is, I believe, the most extreme anti-trans bill to pass a legislative chamber so far this year. The bill, H.B. 2177, would ban gender-affirming care for minors, but the text details how it also would ban public funds from being used to provide gender-affirming medical care to anyone — minor or adult.
The bill also would bar insurance coverage for provision of gender-affirming medical care to anyone.
The unicameral (one-chamber) Nebraska legislature is also considering a ban on gender-affirming care for minors (L.B. 574), although a Democratic lawmaker there has threatened to filibuster every bill in the session if the Republican majority goes through with the anti-trans bill.
There are a wide variety of other anti-LGBTQ bills advancing across the nation as well.
Both Kansas (S.B. 180) and North Dakota (H.B. 1474) have a chamber that has passed a bill defining “sex” or “male” and “female” and other such terms, because, of course. These are bills clearly attempting to create definitional state laws that could then be used to restrict trans, non-binary, and — potentially — other gender-nonconforming people’s rights in other areas.
As has been the case for some time, several of the anti-LGBTQ bills advancing are targeting LGBTQ students — often this year through the prism of “parents’ rights.”
Indiana’s House passed two anti-LGBTQ bills relating to students. The first (H.B. 1407) is a so-called “parents’ rights” bill, and the second (H.B. 1608) includes a version of Florida’s “don’t say gay” law, banning discussion of human sexuality “through grade 3.” Kentucky’s Senate passed a bill (S.B. 150) that contains several different anti-LGBTQ elements under the guise of “parents’ rights” and curriculum notice, with a provision about pronoun use thrown in as well.
Arkansas’s legislature is moving a more comprehensive education reform bill (S.B. 294) forward that includes a ban on “indoctrination” relating to what it calls “critical race theory” (see pages 20-22 for the specifics) and a ban on classroom instruction related to “gender identity” or “sexual orientation” specifically through fourth grade.
The Senate previously passed the bill. The House amended and passed it on Thursday, and the amended version is back in a Senate committee. It would go to Republican Gov. Sarah Huckabee Sanders if passed as amended.
Multiple anti-trans sports-related bills passed the North Dakota House (H.B. 1249 for primary schools and H.B. 1489 for higher education) and Utah House (H.B. 209 and H.B. 463, both relating to birth certificate requirements), as well as one that passed the Kansas House (H.B. 2238).
North Dakota’s House also passed a bill (H.B. 1297) banning changes to a person’s sex on birth certificates.
Montana’s House passed a bill (H.B. 359) that would ban some drag performances. The text of the Montana bill, as passed by the House, is a bit of a mess. It attempts to do two things. First, it would make it a crime for a business — including restaurants — that allow anyone younger than 18 in the establishment during a drag performance (which is limited to those “male or female impersonators” whose shows are “appealing to a prurient interest,” which is further defined as “having a tendency to excite lustful thoughts”). Second, it would ban such performances from public properties, including libraries, and from any school that receives any public funds.
In a real standout for the “looking for things to legislate” category, the Arizona Senate passed a bill (S.B. 1417) that would limit teachers or staff assisting disabled children who wear a diaper and need help changing their diaper to teachers of the same “biological sex” — a move that would create needless disruption for trans teachers and staff.
Finally, the North Dakota House — a busy chamber, having passed 10 anti-LGBTQ bills thus far in 2023 — passed a bill (H.B. 1205) that would ban public libraries from having “explicit sexual material” in books on their shelves and require libraries to develop policies to keep in compliance with the restrictions.
The law, however, defines “explicit sexual material” to contain “any pictorial, three-dimensional, or visual depiction, including any photography, picture, computer video, or computer-generated image” showing any number of sexual activities. As such, I’m not sure it covers any words, and the ban only applies to “books,” so, I think graphic novels that include sexual content would be the most likely to be covered by this ban — and, of course, they could be considered works of art that have “serious artistic significance,” which would then be exempted.
In short, I don’t like library book bans, but I’m not exactly sure what this is targeting beyond creating a potential chilling effect due to the policy development and review requirements of the bill.
That was a lot to get through, I know. When I decided to “limit” my Law Dork coverage primarily to anti-LGBTQ bills that have passed one legislative chamber, I honestly wasn’t prepared for just how little that would actually limit what I needed to cover. I do hope that people find these updates to be helpful.
To end, I’d at least like to give one good piece of news. Go read Erin Reed’s newsletter for one particularly bad bill that appears not to be moving forward for now.
Apart from First Amendment and over-broadness issues can these laws, along with other "parental rights" laws, be challenged on Equal Protection grounds? Not so much the protections of LGBTQ folks themselves (though that, too), but of parents who WANT their children to learn that it is OK to have two dads or WANT their children to have gender-affirming care. Or for that matter, to go to a drag queen story hour.
These laws definitely penalize one set of citizens in aid of "protecting" the views of another.
I’m stuck on requiring teachers assisting disabled students to be the same “biological sex”. I view it, on top of everything else, as yet another attack on teachers, making their jobs so difficult they’ll quit and we can say public education doesn’t work. I help disabled children change their diapers all the livelong day. If I had to call one of the 3 male teachers in our school every single time I helped a male student, merely because apparently teachers are all (hetero) pervs, I’d quit.