If 2022 was one of the worst years on record in terms of anti-trans legislation in various state legislatures, the LGBTQ community should prepare for what portends to be an equally bad year in 2023. Not content to go after trans girls and women competing on sports teams or restricting access to gender-affirming care, there are already signs that some conservative lawmakers want to define "woman." Of course, these politicians are currying favor from their deeply red base, and trying to push back on advances by the Biden administration at the federal level. This also is an early look at one likely GOP contender in the 2024 presidential race: Florida Governor Ron DeSantis.
Politico recently reported that South Carolina Republican state Senator Danny Verdin filed a joint resolution that would amend the South Carolina Constitution to establish that male and female be defined "in the context of reproductive potential ... without regard to an individual's psychological, chosen or subjective experience of gender." If his proposal advances through the Legislature, it could go before Palmetto State voters in 2024. It's just the kind of divisive ballot measure meant to encourage Republican turnout in a presidential election year, although, of course, South Carolina is already ruby red. The real reason these types of proposals are continuing to percolate is that conservatives, with no real policies of their own, want to exert control over vulnerable populations, including the trans community. They perceive trans people as "other" and don't want them to have access to medical care and other services they need to live their authentic selves. A similar resolution was filed on Capitol Hill last spring.
And we saw what it's really about last year during the confirmation hearing for now-U.S. Supreme Court Justice Ketanji Brown Jackson when Senator Marsha Blackburn (R-Tennessee) asked her to define "woman." Blackburn's "line of questioning hit on nearly every political hot-button issue, from critical race theory to teaching children about gender identity in schools to Lia Thomas, a transgender swimmer on the University of Pennsylvania's women's team," Politico reported at the time.
House Republicans certainly may reintroduce the measure — if they can ever get the speaker's election settled so that committees can be formed and work can begin — but such bills are likely doomed in the Democratic-controlled Senate, thankfully.
Meanwhile, the conservative Independent Women's Forum is going a step further, trying to garner support for its nine-point "Women's Bill of Rights," as Politico reported. It would define gender-related words such as "mother" and "father." Carrie Lukas, president of the group, told Politico that "this isn't being anti-anyone." That's disingenuous, as it directly relates to trying to erase trans people.
In another scary development, the 11th U.S. Circuit Court of Appeals last week ruled that transgender students don't have the right to use the restroom that matches their preferred gender identity. The divided 7-4 ruling probably sets up the issue for a U.S. Supreme Court case and affects students in Florida, Georgia, and Alabama.
"The ruling has wide-reaching implications in the 11th Circuit's tristate jurisdiction, as the decision broadly found that 'separating school bathrooms based on biological sex passes constitutional muster' in public schools," as the Miami New Times reported.
Finally, the state of Florida is now investigating a drag queen performance that was allegedly attended by children. The probe by the state's Department of Business and Professional Regulation centers on the venue that hosted the show. CBS News reported that the Broward Center for the Performing Arts said in a statement, "Drag Queen Christmas ... was limited to patrons 18 years or older, unless accompanied by a parent."
This is an aggressive posture on the part of the Sunshine State, similar to how it went after The Walt Disney Company last year for its opposition to the "Don't Say Gay" law — not only going after the drag show but also trying to shut down the venue that hosted it. It sends a chilling message to other venues, not only in Florida but other red states, which, of course, is exactly what conservatives want.
It's just another example of the right-wing arguing that drag is obscene, has a sexual component to it, and is bad for kids. This harkens back to the old trope about LGBTQs being "deviants" who must be stopped.
Coordinated effort
But here's the thing. If men and women are defined a certain way and it's OK to segregate people out of certain environments, there is no telling where this will end. If governments find drag to be offensive and find trans women to be men and trans men to be women then are trans people, in their eyes, crossdressers? They just don't want to define away trans people, they want to obliterate trans people and basically punish anybody who supports trans people.
What we're seeing is a coordinated effort to legally define who trans people are and some of these efforts would require keeping track of trans people too. That's sort of buried in the Women's Bill of Rights, as point nine states, "Any public school or school district and any federal/state/local agency, department, or office that collects vital statistics for the purpose of complying with anti-discrimination laws or for the purpose of gathering accurate public health, crime, economic, or other data shall identify each individual who is part of the collected data set as either male or female at birth."
If the federal government were to do that, it doesn't matter what California says or how the Golden State defines people.
Here's the reality: if DeSantis is elected president, everything we see the state of Florida doing would be a blueprint for a DeSantis administration. Right now, he's the most popular GOP leader mentioned for president. He's petty, vindictive, and a bully. Donald Trump was a grifter — in it for himself and his family. DeSantis is efficient, organized, and has an agenda. That agenda involves erasing trans people for political gain.
What we have are two distinct models — California and Florida. The Golden State is open, accepting, diverse, and strongly supports LGBTQ rights. Florida wants to shut down debate about science, quash conversations about LGBTQ people, and rewrite history.
One of the problems with anti-trans bills is that they broadly demonize trans people and their families in those red states, especially trans youth. California took a step in trying to combat that last year with Senate Bill 107, authored by gay state Senator Scott Wiener (D-San Francisco). Signed by Governor Gavin Newsom, SB 107 went into effect January 1. As we reported last week, it is now California policy to reject any out-of-state court judgments removing trans kids from their parents' custody because they allowed them to receive gender-affirming health care. State health officials will not be allowed to comply with subpoenas seeking health records and any information related to such criminal cases, and public safety officers must make out-of-state criminal arrest warrants for such parents their lowest priority.
Wiener introduced the legislation due to state governments, such as in Alabama, Texas, and Idaho, adopting laws that call for prosecuting parents who allow their trans children to have gender-affirming care. Families in the Lone Star State have already found themselves being investigated by state agencies and facing the possibility of being prosecuted and seeing their trans children placed in foster care.
In Alabama, parents and physicians face being imprisoned for up to 10 years for either allowing their trans kids or providing their trans patients gender-affirming care. Both laws have been put on hold by judges as LGBTQ advocates challenge them in state and federal courts.
As Newsom noted in his signing letter for SB 107, the law signals that California stands "for parental choice" unlike those states that have attacked the rights of parents with trans children.
"We believe that no one should be prosecuted or persecuted for getting the care they need — including gender-affirming care," wrote Newsom. "Parents know what's best for their kids, and they should be able to make decisions around the health of their children without fear."
The effort by lawmakers in red states to define "woman" are rooted in their animus toward trans people. That's why new laws like Wiener's are so important. Aside from sending a powerful message, SB 107 is a beacon for trans kids and their families outside of California.
As we watch what happens across the country this year, LGBTQ folks should keep in mind that our allies are more important than ever. LGBTQ statewide and national organizations likely will have a lot of work to do combatting the misinformation and demonization of our community. We will need strong allies and we'll need to use our loud voices to fight back against this tyranny.
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