LGBTQ advocates are sounding the alarm about how the legal doctrine of preemption is being used to prevent local progress for equality in red states. Some red states are working to undermine local laws by adopting state legislation that limits what more liberal cities in those jurisdictions can allow.
“We’ve seen lawmakers rush into state preemption bills that mirror and pave the way for the harmful and authoritarian policies and rhetoric across issue spaces like immigration, DEI, and as we are discussing today, LGBTQ+ policies,” Katie Belanger, of the Local Solutions Support Center, a nonprofit that pushes for change on the local level, said in a Zoom meeting March 20 titled “The Chilling Effect of Abusive Preemption on LGBTQ+ Rights.” “These bills … are designed to take our power away.” (She was referring to diversity, equity and inclusion.)
Jared Make, vice president of A Better Balance, which works to promote justice in the workplace, explained on the Zoom call that “historically, state preemption of local authority was a tool used to ensure uniform state regulation, or to resolve conflicts between local governments.”
“It was about balance,” Make said. “We’ve seen this go from a tool of balance to one that undermines democracy and local rights.”
States can pass laws limiting the scope of what local jurisdictions can make independent decisions on. For example, California law means counties and cities can’t have firearms regulations less stringent than those imposed by the Legislature, even though firearms regulation is expressly a matter for local jurisdictions.
But in red states, preemption is being used to further conservative policy goals over and against more liberal municipalities’ desires.
A Better Balance, Local Solutions Support Center, and the Equality Federation, a social justice organization that serves the LGBTQ community, have released a report, “Preempting LGBTQ Rights: How States Undermine Local Leadership and Innovation on LGBTQ Equality.” In the current legislative session, there are 575 preemption bills working their way through state legislatures in red states.
An early example of preemption was in Tennessee, Make said.
In 2011, Nashville and Davidson County passed a contract accountability non-discrimination ordinance to prohibit discrimination against LGBTQ+ people in government contracting.
The state Legislature there made sure that law didn’t go into effect by prohibiting local governments from passing “an anti-discrimination practice, standard, definition, or provision that shall deviate from, modify, supplement, add to, change, or vary in any manner.”
Since then use of the preemption tactic has only grown.
In 2016, Charlotte, North Carolina passed a non-discrimination ordinance. This led to HB2, the first of many so-called bathroom bills allowing people only to use the facilities that corresponded with their sex assigned at birth.
The report states, “Rather than targeting one policy issue or area, many of these Death Star 2.0 preemption laws simultaneously eliminate multiple areas of local lawmaking authority.” For example, in 2023, Texas Governor Greg Abbott (R) signed HB 2127, which prohibits local governments from adopting or enforcing ordinances covered by the Lone Star State statutes on agriculture, finance, insurance, labor, natural resources, or occupations.
Fran Hutchins, executive director of Equality Federation, said during the Zoom call that in 2023, one-third of the total number of anti-LGBTQ bills introduced in state legislatures across America included preemption of local jurisdictions.
“By February 2024, 16 states had passed some sort of state law that censors or restricts some form of LGBTQ+ inclusive curricula, or requires parental notification,” Hutchins said. “Anti-LGBTQ+ politicians have introduced these bills as a direct response to the progress we’ve made as a movement.”
They’ve since become “more granular, more targeted,” Hutchins said, referring back to the report. Some other examples of preemption laws are bans on gender-affirming care that prohibit use of local funds for such care, and restrictions on medical providers with local governments from providing such care.
Back in Tennessee, a 2023 law targeting drag performances used preemption, which the U.S. Supreme Court refused to hear, to prevent local governments from giving out licenses to businesses that conflict with the state statute.
Equality Ohio Executive Director Dwayne Steward said his state – home of Vice President JD Vance – is one of many on the frontlines of the fight against LGBTQ legislation.
“Just last year, we saw a bathroom ban that was passed,” Steward said. “Right now we’re seeing universities that are pre-complying with this and have bathroom signs saying ‘biological male,’ ‘biological female,’ which is wreaking havoc and causing protests across the state. We did have a ‘Don’t say LGBTQ’ bill passed for K-12 schools in our state, including a forced outing clause.”
Steward said there’s also potential for a so-called given name act, which he said would require schools not to allow someone’s name to be changed as it relates to their potential transition.
Senate Bill 1 – which would prevent DEI efforts in public universities – was passed by the Ohio House of Representatives the same day as the Zoom call.
There are some things people can do.
“To resist anti-LGBTQ+ preemption, it is important that advocates of equality and local democracy work together across movements,” the report states. “The use of abusive preemption in anti-LGBTQ+ state bills is similar in many ways to the use of abusive preemption to roll back and prevent gun safety, labor protections, environmental standards, immigrant rights, public health authority, and much more.”
Legal challenges and lobbying across movements can help stave off these efforts to take away power from cities and counties, the report says.
“Although strengthening local authority will not necessarily solve the rise of anti-LGBTQ+ lawmaking, it is important to consider innovative ways to ensure local governments can build on state regulations and help to fill gaps in civil rights laws,” the report concludes.
LGBTQ Agenda is an online column that appears weekly. Got a tip on queer news? Contact John Ferrannini at [email protected]
Updated, 4/15/25: This article has corrected Katie Belanger's last name and the number of bills to 575.
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