Trial Magazine

Living as an LGBTQ person in America is not easy. It never has been. And the fight for equal treatment is not over. Despite progress in recent years through landmark U.S. Supreme Court rulings recognizing the rights of LGBTQ people,¹ state lawmakers across the nation have renewed their battle against equality in an unprecedented way—targeting LGBTQ children. As of July 2022, more than 300 anti-LGBTQ bills have been proposed across the country, with the majority targeting transgender children.²

The proponents of the legislation and so-called educational reform tout the need to “protect children,” but they ignore clear evidence of the harms this legislation causes to those very children. LGBTQ youth are the most vulnerable members of the LGBTQ community. In 2021, almost 42% of the nearly 35,000 LGBTQ youth surveyed reported seriously considering suicide within the previous year.³ Of those youth who identify as transgender⁴ or nonbinary,⁵ more than 50% seriously considered suicide within the prior year.⁶ This heightened risk of suicide among transgender and nonbinary youth has led governors to veto anti-transgender legislation.⁷ Nevertheless, transgender and nonbinary children—and the LGBTQ community as a whole—continue to be the subject of legalized discrimination.

In 2021, almost 42% of the nearly 35,000 LGBTQ youth surveyed reported seriously considering suicide within the previous year.

Discriminatory Legislation Targeting Transgender and Nonbinary Youth

The unprecedented number of state bills targeting the transgender and nonbinary community⁸ focus primarily on two avenues: banning gender-affirming health care for transgender minors and requiring transgender athletes to participate in the sport that matches their birth-assigned sex or gender.

Gender-affirming medical care. “Gender is used to denote the public, sociocultural (and usually legally recognized) lived role as boy or girl, man or woman, or other gender.”⁹ Gender identity refers to a person’s internal, innate, and immutable sense of belonging to a particular gender.¹⁰ Gender dysphoria is the diagnostic term for when clinically significant distress results from the lack of congruence between a person’s gender identity and the sex they were designated at birth.¹¹

There are widely accepted standards of care for treating gender dysphoria, which the American Academy of Pediatrics recognizes as safe, effective, and medically necessary.¹² Gender-affirming treatments may include the use of hormones to delay puberty or to promote the development of secondary sex characteristics that are consistent with a child’s gender identity.¹³

Other appropriate medical care may include gender-affirming surgeries; however, surgical interventions are uncommon in adolescents.¹⁴ Gender-affirming care lowers mental distress and reduces suicidal ideation for transgender individuals.¹⁵ All major medical and mental health associations support providing gender-affirming care and recognize the mental and physical health benefits of receiving this care.¹⁶

But state lawmakers instead have sought to restrict potentially lifesaving gender-affirming care. In 2020, eight states considered bills that would deny gender-affirming medical care to transgender youth.¹⁷ None passed. However, in 2021, 21 states proposed gender-affirming health care bans, with Arkansas becoming the first state to categorically prohibit transgender children and adolescents from receiving gender-affirming medical care.¹⁸ The Arkansas General Assembly overrode Gov. Asa Hutchinson’s veto of the bill. Hutchinson vetoed the ban as “overbroad, extreme,” and a “product of the cultural war in America.”¹⁹ The legislation has not gone into effect yet due to a preliminary injunction.²⁰

State lawmakers’ attempts to ban gender-affirming health care for minors continued into 2022. For instance, in February, Texas Gov. Greg Abbott issued an executive order restricting access to gender-affirming medical care for transgender youth and classified the provision of such care as “child abuse.”²¹ And although a Texas court temporarily blocked enforcement of the governor’s order,²² the damage was done once an investigator, in response to the directive, showed up at the home of a Texas Department of Family and Protective Services’ employee who has a transgender child.²³

Parents of transgender children being labeled as “abusive” is devastating, particularly when transgender health care bans continue to be proposed throughout the country.²⁴ These “bills carry severe penalties for health care providers, and sometimes families, who provide or seek out gender-affirming care for minors” and “would either criminalize health care providers who provide gender-affirming care to minors or subject them to discipline from state licensing boards.”²⁵

In other instances, state lawmakers propose to allow individuals to file civil suits for damages against medical providers who violate the law and penalties for parents who facilitate minors’ access to gender-affirming medical care.²⁶ The Williams Institute estimates that “due to government efforts . . . more than 58,000 transgender youth and young adults across 15 states are in jeopardy of losing access to gender-affirming care.”²⁷

Proponents of these bills claim to be “protecting” children, however, that is not the outcome of such bills.²⁸ Instead, lawmakers’ “purported health concerns regarding the risks of gender transition procedures are pretextual” reasons to ban an outcome the legislators deem undesirable—even though the care “may be medically appropriate and necessary to improve the physical and mental health of transgender people.”²⁹ And, given the high suicide rates among transgender youth, the dangers of taking away gender-affirming care or prohibiting them from even beginning such lifesaving care is grave.³⁰

Transgender athletes. The assault on transgender athletes came into sharp focus in 2020 when Idaho became the first state to pass a statewide ban (H.R. 500) prohibiting transwomen athletes from participating in sports that do not match their birth-assigned sex or gender.³¹ Although H.R. 500 has yet to be enforced due to a preliminary injunction on the basis that it is likely unconstitutional,³² other state lawmakers have continued to propose and pass similar laws.³³

As recognized by Utah Gov. Spencer J. Cox, these transgender sports bans are directed at a very limited number of transgender kids playing sports.³⁴ Nevertheless, so far in 2022, 18 states have enacted laws barring or limiting transgender sports participation,³⁵ an act fueled by fear and animus against the transgender community, particularly trans girls and trans women.

Restricting Education and Making Schools Less Safe

In Obergefell v. Hodges, the Supreme Court upheld the “validity” and “legality” of same-sex relationships.³⁶ Nevertheless, state lawmakers want to restrict our children’s access to knowledge about these families and the LGBTQ community. They don’t want students to learn that Sally Ride was the first American woman in space, a posthumous recipient of the Presidential Medal of Freedom, and “the first acknowledged” lesbian astronaut.³⁷

State lawmakers’ efforts to curtail education is on the rise. Since January 2021, 191 educational gag order bills, primarily focusing on anti-LGBTQ and anti-“critical race theory” bills, have been introduced or prefiled in 41 states.³⁸ As of July 2022, 19 such bills have become law in 15 states, and 17 were currently pending.³⁹

Florida’s H.B. 1557, the “Parental Rights in Education” bill (commonly known as the “Don’t Say Gay” bill) is a typical example. The bill, which has been signed into law and went into effect July 1, provides that “classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.”⁴⁰

Florida was not alone in banning certain instruction about sexual orientation and gender identity in the classroom. For example, a Tennessee bill (H.B. 0800) would ban instruction on “LGBTQ lifestyle issues” and prohibit textbooks and instructional materials “that promote, normalize, support, or address controversial social issues, such as lesbian, gay, bi-sexual, and transgender (LGBT) lifestyles” and claims they “offend[ ] a significant portion of students, parents, and Tennessee residents with Christian values.”⁴¹ Similar bills have been proposed in other states.⁴²

Another form of anti-LGBTQ legislation involves the use of pronouns and other affirmative statements regarding a student’s gender identity or sexual orientation. This comes at a time when one in four LGBTQ youth use a pronoun other than “he/him” or “she/her.”⁴³ And just like gender-affirming health care, the use of gender-affirming pronouns reduces the risk of suicide for LGBTQ youth.⁴⁴

Nonetheless, a bill was introduced in South Carolina this year that would make it a violation of the rights of individuals to be compelled to affirm, accept, adopt, or adhere to particular language usage or definitions such as “nonbinary pronouns” or “the existence of genders other than male and female and gender fluidity” and would prohibit a state-funded entity from promoting, engaging, or instructing individuals with such “discriminatory” concepts.⁴⁵ It also would prohibit subjecting minors to instruction, discussions, or counseling involving “gender identity or lifestyles” or “sexual lifestyles, acts or practices.”⁴⁶ Other states have enacted or proposed similar bans.⁴⁷

Anti-LGBTQ legislation targeting what curriculum can be taught both in and outside the classroom is also widespread. For instance, an Iowa bill would ban curriculum in grades one through six “relating to gender identity” without the prior written consent of the parent or guardian.⁴⁸ An Arizona bill would require sex education to emphasize biological sex and not gender identities.⁴⁹ Similarly, Arizona H.B. 2011 would force students to seek their parents’ permission before joining any school club “involving sexuality, gender or gender identity”⁵⁰—meaning that LGBTQ students who are simply seeking support from their classmates would essentially have to out themselves to their parents first.

Legislation controlling the curriculum in schools has been introduced in several other states with an intent to prohibit teachers from using any instruction that could expose children to concepts related to the LGBTQ community.⁵¹

The proponents of these bills argue that parents should be in control of the education of their children related to gender identity and sexual orientation. However, the bills really stem from outdated and biased sentiments that LGBTQ teachers and adults are intent on grooming children to become gay or that children “choose” to join the LGBTQ community. This legislation taps into fears from parents who want to exercise censorship as a form of protection to ensure their children aren’t exposed to a different “lifestyle” and that such censorship can somehow prevent their children from becoming members of the LGBTQ community.

These ideas are false, and they perpetrate the harm to LGBTQ youth. Historically, LGBTQ youth have not found their home to be a safe place. Only one in three LGBTQ youth have found their home to be LGBTQ-affirming, but 50% have found their school environment to be supportive.⁵² While those numbers should be even higher, schools can be a much-needed safe environment for LGBTQ students.

What Can Trial Lawyers Do?

So, what can you do? First, find pending legislation in your state affecting LGBTQ rights. You can visit the American Civil Liberties Union’s website, “Legislation Affecting LGBTQ Rights Across the Country,”⁵³ or Freedom for All Americans’ legislation tracker.⁵⁴ Then contact your legislators and speak out against proposed legislation.

Second, contact your state trial lawyer association to determine what efforts it may be engaged in. If they aren’t doing anything, ask how you can help. Third, join the AAJ LGBT Caucus (either as an ally or an LGBTQ attorney) and find out what it is doing to advance the rights of members of the LGBTQ community.⁵⁵

Finally, educate yourself. Find out more about the fight for LGBTQ equality. Talk to your clients, neighbors, friends, and colleagues. Find out their feelings, who they know, and how this affects them. Learn about pronouns and why they matter, and respect transgender and nonbinary people’s pronouns. Be kind and compassionate. Remember that we are all human, and no one should be discriminated against because of who they are or who they love.

Breean Walas is the founder of the Walas Law Firm in Little Rock, Ark., and can be reached at breean@walaslawfirm.com. Shenoa Payne is the founder of Shenoa Payne Attorney at Law in Portland, Ore., and can be reached at spayne@paynelawpdx.com.

Notes

1. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 576 U.S. 644 (2015); Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020). Recently, in a concurring opinion, Justice Clarence Thomas called for “reconsider[ation of] all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” signaling the urgent importance of preventing state legislatures from passing anti-LGBTQ legislation and continuing to work for LGBTQ equality. Dobbs v. Jackson Women’s Health Org., 2022 WL 2276808, at *58 (June 24, 2022) (Thomas, J., concurring).
2. Numbers calculated at time of writing. See Am. Civil Liberties Union, Legislation Affecting LGBTQ Rights Across the Country, July 1, 2022, https://www.aclu.org/legislation-affecting-lgbtq-rights-across-country; Freedom for All Ams., Legislative Tracker: All Anti-LGBTQ Bills, https://freedomforallamericans.org/legislative-tracker/anti-lgbtq-bills/; Freedom for All Ams., Legislative Tracker: Anti-Transgender Legislation, https://freedomforallamericans.org/legislative-tracker/anti-transgender-legislation/.
3. The Trevor Project, National Survey on LGBTQ Youth Mental Health 2021, May 2021, https://www.thetrevorproject.org/survey-2021/.
4. “Transgender” is a broad term used to describe people whose gender identity is different from their assigned sex at birth. See Nat’l Ctr. for Transgender Equality, Understanding Transgender People: The Basics, July 9, 2016, https://tinyurl.com/yc6jvy9b.
5. “Nonbinary” is one term used to describe genders that don’t fall into male or female. Other terms include queer, genderqueer, agender, bigender, and more. See Nat’l Ctr. for Transgender Equality, Understanding Non-Binary People: How to Be Respectful and Supportive, Oct. 5, 2018, https://tinyurl.com/2p94r6b3.
6. National Survey on LGBTQ Youth Mental Health 2021, supra note 3.
7. See, e.g., Rex Huppke, Two GOP Governors Stood Up to Anti-Transgender Legislation. We Need More, USA Today, Mar. 31, 2022, https://tinyurl.com/3k7dbze3; James Factora, Kansas Governor Becomes the Fourth to Veto an Anti-Trans Bill This Year, them, Apr. 19, 2022, https://tinyurl.com/yynhkyfu; Asa Hutchinson, Opinion: Why I Vetoed My Party’s Bill Restricting Health Care for Transgender Youth, Wash. Post, Apr. 8, 2021, https://tinyurl.com/yc29azjs.
8. Arthur Jones II, This Year on Pace to See Record Anti-Transgender Bills Passed by States, Says Human Rights Campaign, CBS News, Apr. 22, 2022, https://www.cbsnews.com/news/2022-anti-transgender-legislation-record-human-rights-campaign/; Wyatt Ronan, 2021 Officially Becomes Worst Year in Recent History for LGBTQ State Legislative Attacks as Unprecedented Number of States Enact Record-Shattering Number of Anti-LGBTQ Measures Into Law, HRC Press Release, May 7, 2021, https://tinyurl.com/2p8ku883.
9. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition Text Revision 511 (Feb. 2022) [hereinafter DSM-V-TR].
10. See Understanding Transgender People: The Basics, supra note 4.
11. DSM-V-TR, supra note 9, at 511.
12. See Eli Coleman et al., Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People, World Prof’l Ass’n for Transgender Health (2012), https://tinyurl.com/3xpzx5wk; Wylie C. Hembree et al., Endocrine Treatment of Gender-Dysphoric/Gender-Incongruent Persons: An Endocrine Society Clinical Practice Guideline, 102 J. Clinical Endocrinology & Metabolism 3869 (2017); Jason Rafferty, Ensuring Comprehensive Care and Support for Transgender and Gender-Diverse Children and Adolescents, 142 Pediatrics, Oct. 2018; Lee Beers, American Academy of Pediatrics Speaks Out Against Bills Harming Transgender Youth, Am. Acad. of Pediatrics, Mar. 16, 2021, https://tinyurl.com/mtc8mbuj.
13. DSM-V-TR, supra note 9, at 511; Kerith J. Conron et al., Prohibiting Gender-Affirming Care for Youth, UCLA, Mar. 2022, https://tinyurl.com/2p8smwd8; see also  Brandt v. Rutledge, 551 F. Supp. 3d 882, 890 (E.D. Ark. 2021) (“[T]he goal of gender-affirming care is to provide patients who struggle with their gender identity the time and support they need to resolve that struggle and to mitigate the distress that can be associated with that condition.”).
14. Dep’t of Health & Human Servs., Office of Population Affairs, Gender-Affirming Care and Young People, Feb. 2022, https://tinyurl.com/4z5w5u2a.
15. Id.; Diana M. Tordoff et al., Mental Health Outcomes in Transgender and NonBinary Youths Receiving Gender-Affirming Care, JAMA, Feb. 25, 2022, https://tinyurl.com/yc4py3ar.
16. See Pediatric Endocrine Soc’y, The Pediatric Endocrine Society Opposes Bills That Harm Transgender Youth, Apr. 23, 2021, https://tinyurl.com/2m52utws; Am. Med. Ass’n, State Advocacy Update, Mar. 26, 2021, https://tinyurl.com/33vbskyv; Am. Acad. of Child & Adolescent Psychiatry, AACAP Statement Responding to Efforts to Ban Evidence-Based Care for Transgender and Gender Diverse Youth, Nov. 8, 2019, https://tinyurl.com/4cxkw4a7; Jack Dresher et al., Position Statement on Access to Care for Transgender and Gender Diverse Individuals, Am. Psychiatric Ass’n (2018), https://tinyurl.com/2aneswr3; Laura Ellis et al., Resolution No. 1004: Trangender Care, Am. Acad. of Family Physicians (2012), https://tinyurl.com/2vhtw4ef [hereinafter Association Statements].
17. See H.B.20-1114, 72nd Gen. Assemb., 2d Reg. Sess. (Colo. 2020); H.B. 3515, 101st Gen. Assemb. (Ill. 2020); H.B. 321, Gen. Assemb. (Ky. 2020); S.B. 842, 100th Gen. Assemb., 2d Reg. Sess. (Mo. 2020); H.B. 1721, 100th Gen. Assemb., 2d Reg. Sess. (Mo. 220); H.B. 163, 2019 Sess. (N.H. 2020); S.B. 1819, 57th Leg., 2d Sess. (Okla. 2020); H. 4716, 123rd Leg. Sess. (S.C. 2020); H.B. 1057, 95th Leg. Sess. (S.D. 2020).
18. H.B. 1570, 93rd Gen. Assemb., 2021 Reg. Sess. (Ark. 2021), codified at Ark. Code §§20-9-1501–04 (2021).
19. Brianna Kwasnik & Rachel Herzog, Governor Vetoes Transgender Bill, Calls Measure a ‘Product of the Cultural War’, Ark. Democrat Gazette, Apr. 5, 2021, https://tinyurl.com/48vwfh7t; see also Hutchinson, supra note 7.
20. See Brandt, 551 F. Supp. 3d 882. The Eighth Circuit affirmed the district court's decision in favor of the plaintiffs. See Brandt v. Rutledge, 2022 WL 3652745 (8th Cir. Aug. 25, 2022)
21. Letter From Greg Abbott, Gov., State of Tex., to Jaime Masters, Comm’r, Tex. Dep’t of Family & Protective Servs. (Feb. 22, 2022), https://gov.texas.gov/uploads/files/press/O-MastersJaime202202221358.pdf.
22. Order Granting Plaintiffs’ Application for Temporary Injunction, Doe v. Abbott, No. D-1-GN-22-000977 (Tex. Dist. Mar. 11, 2022), reinstated, Abbott v. Doe, 2022 WL 837956, at *2 (Tex. App. Mar. 21, 2022), mandamus relief partially denied and partially granted, In re Abbott, 645 S.W.3d 276 (Tex. 2022).
23. See Am. Civil Liberties Union, Court Case: Doe v. Abbott, May 13, 2022, https://www.aclu.org/cases/doe-v-abbott.
24. See Freedom for All Ams., Legislative Tracker, https://freedomforallamericans.org/legislative-tracker; Am. Civil Liberties Union, Legislation Affecting LGBT Rights Across the Country, https://www.aclu.org/legislation-affecting-lgbtq-rights-across-country; Track Trans Legislation, Trans Legislation Tracker: 2022 Legislative Session, https://www.tracktranslegislation.com/.
25. Conron, supra note 13 (referencing bills proposed in Alabama, Arizona, Georgia, Iowa, Kansas, Kentucky, Louisiana, Missouri, North Carolina, Ohio, Oklahoma, South Carolina, and Tennessee).
26. Id. (referencing bills proposed in Alabama, Arizona, Georgia, Idaho, Iowa, Kansas, Kentucky, Louisiana, Missouri, North Carolina, Ohio, Oklahoma, South Carolina, and Tennessee).
27. Id.
28. Brandt, 551 F. Supp. 3d at 891.
29. Id.
30. See Association Statements, supra note 16.
31. Kate Miceli, Benched, Trial, Oct. 2021, at 40 (discussing H.R. 500, the Hecox case, and other similar legislation).
32. Hecox v. Little, 479 F. Supp. 3d 930, 988 (D. Idaho 2020). The decision was on appeal to the Ninth Circuit; however, the case was remanded for the limited purpose of determining mootness in light of the plaintiff’s changed enrollment status. Hecox v. Little, No. 20-35815 (9th Cir. June 24, 2021).
33. Legislation Affecting LGBTQ Rights Across the Country, supra note 2; Am. Civil Liberties Union, Legislation Affecting LGBTQ Rights Across the Country 2021, Dec. 17, 2021, https://www.aclu.org/legislation-affecting-lgbtq-rights-across-country-2021; Freedom for All Ams., Legislative Tracker: Youth Sports Bans, https://freedomforallamericans.org/legislative-tracker/student-athletics/.
34. Spencer J. Cox, Gov., State of Utah, Letter to President of Senate and Speaker of the House, Mar. 22, 2022, https://www.sltrib.com/news/politics/2022/03/22/gov-spencer-coxs/. The Utah legislature overwhelming overrode his veto. See Utah Senate, Legislature Overrides Veto on H.B. 11, Mar. 25, 2022, https://senate.utah.gov/legislature-overrides-veto-on-h-b-11/.
35. David Chen, Transgender Athletes Face Bans From Girls’ Sports in 10 U.S. States, N.Y. Times, May 24, 2022, https://www.nytimes.com/article/transgender-athlete-ban.html; Mitch Smith, Indiana Lawmakers Override Transgender Sports Veto, N.Y. Times, May 24, 2022, https://www.nytimes.com/2022/05/24/us/indiana-legislature-transgender-sports-ban.html; Legislative Tracker: Youth Sports Bans, supra note 33; see also Movement Advancement Project, Equality Maps: Bans on Transgender Youth Participation in Sports, https://tinyurl.com/y6k3zxdy.
36. Obergefell, 576 U.S. at 635.
37. Ashley Anderson, Sally Ride, Nat’l Women’s History Museum, Aug. 16, 2018, https://www.womenshistory.org/education-resources/biographies/sally-ride.
38. PEN Am., PEN American Index of Educational Gag Orders, July 11, 2022, https://pen.org/report/educational-gag-orders/. Scroll down the page to find a link on the left-hand side to a regularly updated spreadsheet of the gag orders.
39. Id.
40. H.B. 1557, 2022 Leg. Sess. (Fla. 2022).
41. H.B. 0800, Gen. Assemb. (Tenn. 2022).
42. PEN Am., supra note 38.
43. The Trevor Project, Pronoun Usage Among LGBTQ Youth, Jul. 29, 2020, https://www.thetrevorproject.org/research-briefs/pronouns-usage-among-lgbtq-youth/.
44. National Survey on LGBTQ Youth Mental Health 2021, supra note 3.
45. H. 4605, 124th Gen. Assemb. (S.C. 2022).
46. Id.
47. See, e.g., H.B. 1040, 2022 Gen. Assemb. (Ind. 2022); S.C. H. 4605.
48. S. 2024, 89th Gen. Assemb. (Iowa 2022).
49. H.B. 2285, 2022 Leg. Sess. (Ariz. 2022).
50. H.B. 2011, 2022 Leg. Sess. (Ariz. 2022).
51. Legislation Affecting LGBTQ Rights Across the Country, supra note 2.
52. National Survey on LGBTQ Youth Mental Health 2021, supra note 3.
53. Legislation Affecting LGBTQ Rights Across the Country, supra note 2.
54. Legislative Tracker: Anti-Transgender Legislation, supra note 2. For an index of educational gag orders, see PEN Am., supra note 38.
55. Email Jennifer Rafter at jennifer.rafter@justice.org to self-identify as a member of the LGBTQ community or as an ally and get involved in the LGBT Caucus, join the list server, and find out about LGBT Caucus events.