Legislating Hate: The Language of 19 Anti-Transgender Bills

Welcome to America. Land of the free, home of the brave. At least, home of brave states that provide the freedom to purchase a gun without a background check and carry it fully loaded in your pocket, but will force a school to pay a minimum of $2,500 in legal costs if they allow a transgender girl to use a girls’ restroom—like Kansas.

Yes, Kansas’ HB2737—a bill currently being considered by the Committee on Federal and State Affairs—will allow a student to file a cause of action against a school district or post-secondary institution if they discover a student of the opposite sex, defined by chromosomes and anatomy at birth, in a facility where students may be in a state of undress. The reasoning comes from a right outlined in the bill: to not encounter a person of the opposite sex in such facilities. Along with a $2,500 award for damages in each incident, schools will also be liable to pay damages for psychological, emotional, and physical harm the student may have received, as well as attorney’s fees and any amount of relief the court deems appropriate.

As far as the Kansas legislature is concerned, an individual has more of a right to carry in public a loaded gun they purchased at a garage sale than a transgender teenager has to use the bathroom corresponding to their gender. But would you be surprised if I told you some states have even less respect for their transgender citizens?

Out of the 19 bills analyzed after accessing TransEquality’s Action Center, the only major outlier of HB2737 is the specific awarding of damages. Only one other state mentions damages (which we’ll discuss later on).

These 19 bills and 11 states seem like carbon copies of each other when it comes to the discrimination and language used. Did you notice the focus on sex rather than gender with HB2737? That’s very much a trope in itself; the majority of these bills refer only to “biological sex” when discussing who should and should not be allowed to use certain facilities. A few bills do mention gender in their language, but the usage rarely corresponds with supporting transgender individuals.

In three of the four bills introduced in Missouri, for example, gender is referenced only to state that all restrooms open to the public must be segregated by gender. HB1847 amends part of Missouri code to make this statement while also declaring that no business, political subdivision, building, or facility with a public restroom may instate a policy conflicting with this amendment. Two other bills, HB2303 and SB720, add the same amendment but disagree on whether or not a student may use a facility different from their “biological sex”.

South Carolina steps outside of the bathroom to address gender in student athletics. HB4761 amends South Carolina’s code to require that schools determine a student’s gender by their birth certificate, declaring that students may only play on the teams that match the gender they were assigned at birth. And if the school has a co-ed team? Well, a student may only fill a slot if the slot they’re filling matches their birth certificate.

If you’re thinking, “Wow, these states have a weird problem with gender,” you’re not wrong. A resolution introduced in Michigan, HR264, does not want any school official to refer to a student by their gender unless that gender matches the one on their birth certificate—and cites several Supreme Court cases alongside the 14th Amendment to make their case. The cases cited refer to the role and rights of parents in decision-making for their children, which Aric Nesbitt—the primary sponsor—feels are being infringed by a proposal before the Board of Education. HR264 urges the Board to reject a Statement and Guidance on Safe and Supportive Learning Environments for LGBTQ Students proposed in the state.

Where Nesbitt’s issues with gender come up are in the specific parts of the Statement and Guidance he feels most infringe upon parents’ rights and liberties in raising their children. Part of the Statement and Guidance, Nesbitt alleges, tells schools to allow students the right of identifying as a gender their parents do not recognize. Nesbitt presumably assumes that no parent may be supportive of their child. Another allegation claims the Statement and Guidance encourages “purposeful deception” due to a suggestion that schools address and treat students by their chosen name and gender while maintaining confidentiality. One must wonder if Nesbitt also takes issue with confidentiality policies allowing students to confide things in their guidance counselors they may not feel comfortable discussing with other adults, especially as the next allegation states the Statement and Guidance interferes with “fundamental rights of parents” in upbringing.

It is for these reasons that Nesbitt’s HR264 resolves the Board of Education reject the Statement and Guidance, and why six other legislators signed on to the resolution, which has been referred to the Committee on Education as of April 13th.

Nesbitt’s bill only applies to schools, at least. Colleen Garry of Massachusetts hopes to go a step further.

HB1320 currently has 15 co-sponsors and seeks to make an amendment to Chapter 4, Section 7 of the General Laws. The proposed amendment defines gender identity as separate from sex and sexual orientation—which at least shows some understanding that is often lacking in the campaigns against transgender individuals. What it presents in understanding, though, it lacks in supportive intent; Garry’s bill wants to restrict access to any “sex-segregated” facilities, activities, and programs, making sure that people may only make use of and/or participate in those aligning with their “anatomical sex”. The bill even takes the extra step to outright state that a person’s gender identity should be disregarded in determining what access they have.

But when it comes to a massive overreach of government used for blatant discrimination, nobody does it like Mississippi. In a strange twist, it’s a case of government overreach protecting a person from government actions when a person chooses to discriminate.

Quite possibly the longest bill of all 19—numbered as HB1523, and approved by the Governor on April 5th—the Protecting Freedom of Conscience from Government Discrimination Act will protect anyone who holds the following beliefs:

  • Marriage is and should be recognized as the union of one man and one woman.
  • Sexual relations are properly reserved for only these marriages
  • Male and female are immutable biological sexes, determined by anatomy and genetics at the time of birth

The protections are given to everything ranging from religious organizations, businesses, and state employees, to individuals themselves. As long as you discriminate against someone and cite the above beliefs, you’re free from any negative action taken against you by the state. These actions include fines, benefits, promotions, licensing, accreditation; seemingly anything that a state might consider to affect if you commit any other crime. And HB1523 makes sure to clarify that companies and enterprises can qualify as a “person” for protection under this law.

What kinds of discrimination are allowed? Well, you can:

  • Fire someone for beliefs different from your organization’s.
  • Refuse to provide any service that could be considered wedding-related, including car rentals, jewelry sales, and poetry
  • Adopt or provide foster care only to children who conform with the beliefs above
  • Evict someone who doesn’t conform to those same beliefs

Even medical professionals are not exempt from the protections; they may refuse to provide treatments and counseling related to sex reassignment surgery or gender identity transition, as well as refusing to perform the surgery itself. And as long as they cite those recurring beliefs on marriage and sex, the state cannot take action against them for refusing to provide psychological, counseling, and fertility services.

Don’t worry, though; they didn’t forget the bathrooms! These same protections apply to anyone making discriminatory policies in businesses or schools regarding any facility where a person may be in a state of undress.

What happens if a local law conflicts with these protections? Well, HB1523 will override those laws unless they give protection to even further discrimination in the name of the “free exercise of religious beliefs and moral convictions.” In fact, the bill explicitly states it should be seen as favoring that very exercise—one so free that any entity can be seen as a religious organization as long as it says it is, by this very law. Should any of these entities feel the state discriminated against their free exercise, they’re given the right to sue the state for damages as long as they seek inductive relief beforehand.

(As a brief aside: The discrimination against people seeking medical services related to transitioning isn’t unique to Mississippi. South Carolina’s SB108 wants to bring an amendment that bars the Department of Corrections from using state funds and resources to provide hormone therapy and surgery to prisoners. However, they do allow a caveat for prisoners who were already undergoing these procedures when brought to prison, as long as they’re deemed medically necessary.)

Mississippi’s bill legislates the belief that sex is immutable. Massachusetts’ bill legislates that gender doesn’t matter. Michigan’s bill urges the Board of Education to leave a person’s gender up to their parents, who are likely decide gender is sex and sex is set in stone—just as their politicians.

Immutability is almost as common in these bills as the bathrooms they seek to legislate. Kansas’ bill defines sex as your chromosomes and anatomy at birth, almost identical to Mississippi’s definition of anatomy and genetics at birth. Missouri’s HB1624, by Steve Cookson, uses chromosomes and birth anatomy to decide what bathrooms students should use and a ballot proposition that doesn’t mention birth as part of the criteria—a very deceptive omission. The two other Missouri bills, mentioned earlier, use the same definition. Illinois’s HB4474 has 27 co-sponsors who agree with Thomas Morrison that chromosomes and a doctor’s decision at birth define the “physical condition of being male or female.”

The now-infamous HB2 from North Carolina differs from the previous bills by not outright referring to chromosomes, but still makes sure that sex is referred to as “biological sex”, while also tying a person’s sex to what’s listed on their birth certificate. Like previous bills, gender is completely erased from existence. HB4761, mentioned earlier from South Carolina, mentions gender but defines it as whatever is listed on a person’s birth certificate. SB1203 from the same state uses the birth certificate to define a person’s biological sex, like HB2. In Tennessee, two bills—HB2600 from Mike Sparks and SB2275 from Mae Beavers—mix together Mississippi and South Carolina’s bills, defining the terms of husband and wife by a person’s birth certificate and declaring any documents that don’t follow suit to be void for the “integrity and accuracy of vital and historical records”.

And then there’s Tennessee’s HB2414, pulled from consideration by sponsor Susan Lynn on April 19th. Again defining sex by a birth certificate and using the information to decide what bathroom a student can use in a public school or college, it received a lot of backlash that Lynn swears did not contribute to her decision to pull the bill. Worth noting that Lynn has a history of spreading hate, with recent complaints filed against her for handing out anti-muslim propaganda to her fellow legislators.

Three factors are troubling here:

  1. Lynn hinted at plans to reintroduce the bill next year.
  2. The exact same bill is currently in the Tennessee Senate as SB2387 from Mike Bell, and current information shows it’s still on the calendar to be considered by the same committee as Lynn’s.
  3. All the other bills concerning facilities of undress are still being considered by their respective states.

So we now know where several states want people to go when they expel waste or need to change; you’re either going where your chromosomes lead you or where a doctor told you to go when you were half a second old.

Some bills do try to make accommodations. Illinois will let a transgender student use a single-occupancy room as long as they’re emancipated, an adult, or have a written request filed on their behalf by a parent or guardian. They’re also allowed to file a complaint if this request isn’t met, and even seek damages from the school. Kansas requires the same request but only allows lawsuits from students who experienced another student of a different sex in their restroom. Missouri has two bills that will allow unisex rooms like Illinois, and North Carolina’s HB2 provides this small allowance to their schools.

Most states—with and without unisex allowances—do not allow those accommodations to include empty facilities designated for the opposite sex. Kansas will not allow this under any circumstances, while Missouri has one bill agreeing with Kansas and another that will allow a student to use those facilities only if school staff follow them into the facility. North Carolina’s bill overrules any school who would make a policy like the latter from Missouri, while South Carolina would overrule such policies as well as any policy allowing a facility to be unisex. Mike Bell’s bill from above amends the public code without mentioning any accommodations whatsoever. Some of these bills at least clarify that they'll allow a person to enter the bathroom of the opposite sex if they’re a custodian, parent, or medical personnel.

One final commonality remains, and it’s the most surprising out of all of these bills. In Washington, an initiative numbered 1506 has been proposed by Joseph Backholm. Reading through this initiative brings a strange familiarity; that familiarity turns into bewilderment when the initiative mentions a $2500 award for students reporting other students in their bathroom.

Yes, Joseph Backholm’s proposal is an exact copy of Kansas’ HB2737. The only differences contained are a slight variation of wording and grammar, and a recognition of the right for a mother to breastfeed in public as the only exception to the horror of a person witnessing another of opposite sex in a state of undress; the chromosomes, the anatomy, and the exceptions are all the same.

So who is Joseph, and why did he submit this proposal? Well, it turns out Joseph is the chairman of Just Want Privacy, an organization that states transgender people being allowed in bathrooms matching their gender creates a public danger. The organization includes a former Senator, Joyce Mulliken, and plenty of fear-mongering language about wives and daughters.

The proposal has had language approved for the ballot, which specifically states that it would repeal work done by the Human Rights Commission. You can read the full court order at this link.

After analyzing the legislated regression found in these 19 bills and 11 states, one can feel a sense of hopelessness settle in. Politicians in these states seem intent on getting as close to the 1950s as possible, only they’re now focusing on a person’s gender or genitals instead of their skin. A school board in Florida instituted a policy requiring transgender students to use separate bathrooms. Most of the lawmakers responsible for HB2 refused to speak to reporters about revisiting the bill. Other politicians, like Mike Huckabee, believe that anyone called a man at birth has a dream to commit sex crimes like he’s wanted to before.

But there are many reasons to feel like these politicians are the death knell of a bigotry in the stages of being tossed out!

A poll from Reuters and Ipsos showed people across the political and age spectrum being accepting of people using whatever restroom they want. The Huckabees of the world claiming transgender women want to commit rape and sexual assault in bathrooms are being pushed back by over 250 anti-rape and domestic violence groups. North Carolina and Mississippi are seeing millions of tourism dollars disappear from the state as people cancel hotel reservations and entire conferences.

Target's recent announcement of a policy to allow customers the use of whatever bathroom and changing facility they feel comfortable with is especially noteworthy; their decision came from listening to the community and their own employees. While the common language across these bills may be hate dressed up as an appeal to safety and privacy, we must not forget the language of love and acceptance millions are expressing in opposition—nor the voices of those our language affects the most.

If you live in one of these states, use TransEquality’s Action Center to find out how you can help keep these bills from becoming laws and how to fight against bills that have already passed. Listen to the transgender community and fight alongside them, making sure their voices are heard as loudly as possible. Make it clear to politicians, civil servants, and businesses that legislated hate is unacceptable.

And make sure you boost voices speaking love and acceptance whenever and wherever you can.

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