23 May 2023

Florida and the New Assault on LGBT Rights

On May 17, Governor Ron DeSantis signed into law a raft of bills that will dramatically change the legal landscape for lesbian, gay, bisexual, and transgender (LGBT) people. While this marks the latest escalation of Florida’s crusade against LGBT people, it is not an isolated case. As state legislative sessions across the United States draw to a close, the scope and severity of legislation regulating the lives of lesbian, gay, bisexual, and transgender (LGBT) people has been unprecedented. In 2023 alone, state lawmakers filed more than 650 bills aiming to restrict LGBT rights. In states where Republicans control both chambers of the legislature, often by wide margins, many bills have sailed into law with little scrutiny or opposition, with devastating consequences. This post maps the scope of current anti-LGBT panic across the US, contextualizes its rise, and evaluates the potential for legal protection under the current state of the law.

Florida as a Case Study

DeSantis’ attack on LGBTQ rights is particularly comprehensive and provides a useful case study to understand the scope and severity of the threat they are under. One law criminalizes medically indicated gender-affirming care for minors and even authorizes the state to seize custody of children whose parents help them obtain that care. It limits options for transgender adults as well, prohibiting the use of state funds for gender-affirming care and restricting which medical professionals can provide it. Earlier this year, Governor DeSantis signed a separate law permitting medical providers to refuse service based on their moral or ethical beliefs, threatening the rights and health of LGBT people, women, people living with HIV, and others.

Another law aimed at students in schools redefines “sex” to mean a person’s sex assigned at birth, prohibits schools from asking about or being required to use students’ pronouns, prohibits classroom discussions of sexual orientation and gender identity through the eighth grade, requires sexuality education to include instruction that sex is “binary, stable, and unchangeable,” and makes it easier for parents to object to classroom materials and have those materials removed. Proponents of these restrictions have continued to smear their critics as “groomers,” and publicly accused them of sexualizing or preying upon children for defending LGBT youth.

Other laws curb participation in public life. One bans transgender people from accessing restrooms consistent with their gender identity in a wide array of schools and universities, correctional facilities, and government buildings. Another punishes those who allow minors to witness “live adult performances,” which advocates warned would be used to deter businesses from hosting drag events even if those events were family-friendly. One municipality already cancelled its annual Pride parade for fear that it might inadvertently run afoul of the new law.

A New Anti-LGBT Panic

Florida is not alone in its Anti-LGBT Panic. In 2016, North Carolina banned transgender people from accessing bathrooms consistent with their gender identity, setting off a firestorm of opposition. Businesses and organizations launched $3.76 billion in boycotts, other states imposed travel restrictions for state employees, proponents of the bill suffered electoral defeat, and the state ultimately reached a legal settlement rolling back the bathroom ban.

For a period of time, concerns about the cost, unpopularity, and potential illegality of similar measures prevented them from becoming law. Around 2020, that changed. As lawmakers and the media fueled anti-LGBT rhetoric, significantly more bills were introduced, and some of those bills were enacted into law in spite of concerns about their constitutionality. Once the dam broke, other lawmakers enthusiastically followed suit.

As of May 2023, in 21 states, transgender students are prohibited from participating in sports consistent with their gender identity. In 19 states, at least some best practice medical interventions are prohibited for trans youth, and in five – Alabama, Florida, IdahoNorth Dakota, and Oklahoma – providing that care is criminalized as a felony. In nine states, transgender students are banned from using school facilities consistent with their gender identity. Florida is not the only place where the legal changes have been seismic; all of these laws have been enacted since 2020.

Why Now?

The fixation on transgender rights is troubling but also puzzling. One recent study found that only one half of one percent of the U.S. public identify as transgender, and successful battles for transgender rights have long been fought without prompting this level of blowback.

Recent campaigns against LGBT rights should first be understood in historical perspective, as the latest in a long line of panics that capitalize on fear and a lack of understanding of LGBT people. One can think of the Briggs Initiative and Save Our Children campaigns in the 1970s that framed gay and lesbian adults as a threat to children, or Don’t Ask Don’t Tell and the framing of gay and lesbian soldiers as a threat to combat readiness and national security, or the raft of constitutional amendments in the early 2000s that situated marriage equality as a threat to heterosexual marriage. The last of these, the battle for marriage equality, not only culminated in a constitutional right to marry in Obergefell v. Hodges, but in an apparent sea change in public opinion and increasing familiarity among the public with lesbian, gay, and bisexual people.

Far fewer Americans know a transgender person or understand transgender issues, and conservatives’ sharp pivot in part reflects that demonizing transgender people or sensationalizing topics like gender-affirming care can resonate with voters in a way that rank homophobia rarely does. While data suggest that 8 in 10 people support laws that protect LGBT people from discrimination in employment, housing, and public accommodations – including a strong majority of Republicans and a strong majority in every U.S. state – recent polling shows less support for trans inclusion in sport, gender-affirming care for minors, access to bathrooms consistent with a person’s gender identity, and teaching about gender identity in schools. (Of course, this public opinion is itself influenced by recent attacks on transgender rights; the share of respondents who said that sex is fixed at birth and cannot be changed has increased from 2017 to 2022.)

Nor do efforts to stoke anti-transgender sentiment, in Florida or elsewhere, occur in a vacuum. Advocacy groups have found fertile ground in a political system that has become more polarized, more populist, and less responsive to public criticism. The number of competitive congressional seats has shrunk as a product of redistricting and partisan gerrymandering; this has also been evident in many state legislatures as parties in power have locked in maps that are favorable to their continuing dominance. (In Florida, for example, Republicans have secured supermajorities in both chambers of the legislature, allowing them to enact legislation without meaningful input from Democrats.) With seats safely in one party’s hands, both state and federal lawmakers often have more to fear from primary challengers than they do from the opposition party in a general election. This dynamic is exacerbated by the nationalization of state and local politics through social media, partisan media, and fundraising platforms, which too often create incentives for lawmakers to adopt extreme positions  rather than seeking out opportunities for nuance and compromise. (The fact that Florida’s anti-LGBT crackdown has occurred as Governor Ron DeSantis declares a “war on woke” and prepares to run for the presidency, for example, is not coincidental.)

A related consideration is the weakening of many of the institutions that have traditionally mediated populist impulses and bolstered civil rights. The decimation of local journalism and the rise of overtly partisan media, the proliferation of ideological interest groups at the expense of professional expertise, and punitive efforts to bring business and the academy into line have all shaped the political landscape in recent years, with particularly deleterious effects on complex issues like gender-affirming care. This is evident in Florida as elsewhere, as Governor DeSantis has moved to punish critics of recent anti-LGBT legislation, ban diversity, equity, and inclusion programming in public colleges and universities, and reshape the state’s higher education system.

Courts as Last Resort?

As checks on populist policymaking crumble, LGBT and civil rights activists have turned to courts for relief. Just seven years ago, the likely outcomes of these cases seemed clear: the Obama Administration understood sex discrimination to include discrimination based on gender identity. The Trump Administration subsequently rejected that understanding of sex, however, and rolled back administrative guidance protecting transgender people under that rationale.

The Obama Administration’s rationale was best grounded in precedent and seemed like it would carry the day. Many federal courts had understood gender identity discrimination as a form of sex discrimination, and in the 2020 case of Bostock v. Clayton County the U.S. Supreme Court embraced that understanding to hold that Title VII of the Civil Rights Act protects LGBT employees from discrimination.

As recent anti-LGBT litigation has been challenged in court, however, it is not totally clear that that consensus will hold. The judiciary shifted sharply rightward under President Trump, with the confirmation of numerous judges who had previously expressed skepticism or hostility toward transgender rights. It remains to be seen whether federal courts – including the Supreme Court – will adopt a sex discrimination rationale in these cases or will find ways to distinguish them from the employment context and uphold restrictions in other domains.

Litigation around access to bathrooms is illustrative. The Fourth and Seventh Circuits have both held that dividing bathrooms based on sex assigned at birth is a form of sex discrimination that is inconsistent with Title IX and the Fourteenth Amendment’s Equal Protection Clause. At the end of 2022, however, the more conservative Eleventh Circuit disagreed and found that the practice comports with both Title IX and the Equal Protection Clause. The split between the circuits makes it far more likely that the Supreme Court will step in to resolve the question.

Other recent laws are working their way through the courts but have met resistance. Courts have enjoined the sports bans in Idaho and Utah, and have stayed the sports ban in West Virginia pending appeal. They have enjoined at least part of the health bans in Alabama and Arkansas and issued a temporary restraining order against an emergency rule restricting gender-affirming care in Missouri. Courts have also taken action to stop Texas from treating gender-affirming care as a form of child abuse, and to prevent Tennessee from enforcing a new law designed to deter performers and businesses from hosting drag performances.

But these challenges are still being adjudicated, and some – like challenges to Florida’s restrictions on classroom discussions of sexual orientation and gender identity enacted last year – have been unsuccessful thus far. Some elements of the challenged laws, like prohibitions on exceedingly rare surgical interventions for transgender youth, have been allowed to stand. And even with good precedent affirming that anti-trans discrimination is sex discrimination, the sheer volume of anti-LGBT legislation enacted this session and the rightward tilt of the federal courts make it likely that at least some of these recent laws will be allowed to take effect unless and until the Supreme Court intervenes.

As lawmakers in Florida and elsewhere move to curb LGBT rights, judicial intervention to shore up those rights is urgently needed. As Justice Gorsuch recognized in Bostock, there is a strong textualist rationale for understanding gender identity discrimination as a form of sex discrimination under federal law. But the hostility that has been evident in this past legislative session threatens more than just statutory guarantees of equality. Recent laws target the rights of LGBT people to manage their health care, to participate in public life, and to express and receive information.

Courts are beginning to recognize anti-transgender laws as constitutional violations, fueled first and foremost by animus toward transgender people and not by any genuine state interest that has suddenly arisen in the past three years. The Supreme Court has not yet gone that far; it has not expressly said how anti-transgender discrimination should be evaluated under the Equal Protection Clause, and its decision in Dobbs v. Jackson Women’s Health Organization invites skepticism that it will understand bodily autonomy and access to health care servic