For a few years, battles for LGBT rights seemed to fade from the American political scene.
The Supreme Court legalized same-sex marriage in 2015, and most Americans supported the decision. During recent national campaigns, most Republican politicians, including Donald Trump, who called himself a friend to the gay community, largely ignored LGBT issues. One of Trump’s Supreme Court appointees, Neil Gorsuch, even wrote the opinion in a 2020 case that protected gay and transgender workers from employment discrimination.
But the brief political truce over LGBT rights appears to be over. In more than a dozen states, Republicans recently passed laws restricting those rights. In the Senate, Republicans used Ketanji Brown Jackson’s confirmation hearing to draw attention to some of the same issues the new laws cover, even though Jackson’s judicial history had virtually no connection to them. (The Senate confirmed it yesterday).
What explains the change? Today’s newsletter offers two explanations and also provides an overview of recent LGBT-related laws across the country.
a new boldness
After Barack Obama won re-election in 2012, the conventional wisdom on both the right and the left was that the GOP needed to moderate its approach to social issues to win over younger voters in a diversified country.
The 2016 Trump campaign rejected this advice. Instead, he moved to the left on economic issues, such as trade and Social Security. On some hot cultural issues, like crime and immigration, he moved further to the right. In others, he showed relatively little interest, but promised cultural and religious conservatives that he would respect them once he was in the White House.
“Trump’s view was, ‘Give them what they want,’” said our colleague Jeremy Peters, who writes about this story in “Insurgency,” his most recent book. “He understood that if he did that, especially by packing the federal judiciary with conservatives, they would remain the cornerstone of his base.” As president, Trump also walked back on his pro-LGBT rhetoric and restricted the rights of transgender people.
This approach has emboldened cultural conservatives on multiple issues, including abortion, the right to bear arms, affirmative action, and the right to vote. As Stuart Stevens, a veteran Republican strategist and Trump critic, told us: “Many in the party see that they no longer need to pretend and can go back to expressing what they really believe.”
The new conservative aggressiveness is the first factor that helps explain the recent wave of laws restricting LGBT rights. The second factor is the political opportunity that some Republicans now see: They acknowledge that public opinion on gender identity and transgender rights is more conservative than on same-sex marriage.
Some of these gender identity issues are also unavoidably puzzling, as they involve conflicts between the rights of one person and those of another. For example, should transgender girls always be allowed to play girls’ sports, even if male puberty gave them the physical strength that gives them a competitive advantage? (Some feminists and female athletes say no, and some transgender women are divided.) When should schools start teaching children about gender identity? Should schools be required to inform parents if a child changes gender identity at school?
On several of these questions, Republicans see an opportunity to cast Democrats as out of touch. “The right is using trans identity among children as a wedge,” says our colleague Emily Bazelon, who writes on legal issues.
Bazelon points out that this political strategy is based in part on lies that seem designed to stoke fear and hatred. In Florida, for example, some Republicans have falsely suggested that school lessons on sexuality are actually an attempt to “groom” students.
Our summary of recent laws follows below.
‘don’t say gay’
In Florida, Governor Ron DeSantis signed a bill into law last week that bans instruction on sexual orientation or gender identity from kindergarten through third grade. The bill also contains vague wording that opponents worry could lead to broader restrictions, effectively trying to erase LGBT Americans from school lessons.
One example: the law’s preamble requires “prohibiting classroom discussion of sexual orientation or gender identity.” That phrase has led to the nickname by opponents of the law: “Don’t say gay.”
Alabama lawmakers are considering a similar law.
Gender affirming care
Three states, Arkansas, Arizona, and Texas, have enacted policies that limit gender-affirming treatments (which can include surgery, hormones, speech therapy, and other steps) for children.
In Texas, Gov. Greg Abbott has required teachers and other adults to report parents they suspect of providing such care to their children. Abbott has also ordered state officials to investigate the parents for child abuse in these cases, though a judge has blocked the order for now.
The Alabama Legislature yesterday approved a similar bill. If the governor signs it, the law would threaten doctors and nurses with up to 10 years in prison.
The American Medical Association has described these measures as “a dangerous intrusion into the practice of medicine.” Azeen Ghorayshi explained some of the tough decisions families and doctors face in a recent Times article.
In the last three years, the governors of 13 states, including Arizona, Iowa, Montana and West Virginia, have enacted laws restricting transgender women and girls from playing girls’ sports in public schools. However, in several states, governors, both Republicans and Democrats, have vetoed such laws.
One was Utah Governor Spencer Cox, a Republican, who said the law unfairly targeted a small number of transgender kids who are “seeking to find a sense of connection and community” through sports. Most could compete without causing injustice to other athletes, he added. For the rare cases with legitimate safety or fairness questions, Cox favored creating a commission to make decisions.
The Utah Legislature overrode his veto last month and signed the law into law. After the original bill passed the state Senate, Cox appeared on television and spoke directly to transgender children. “Look, we care about you,” she said. “We love you. It’s going to be okay.”
Programming note: I’ll be away until Tuesday April 19th and my colleagues will write The Morning while I’m gone. —David Leonhardt
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