by Casey R. Johnson
On June 26, 2015, the LGBTQ1 community celebrated the United States Supreme Court’s decision in Obergefell v. Hodges, 576 U.S. 644 (2015), in which the Court held in a 5-4 decision that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Five years later, on June 15, 2020, the LGBTQ community celebrated yet again, this time for the United States Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. _ (2002), which held in a 6-3 decision that an employer who fires an employee merely because they are gay or transgender violates Title VII of the Civil Rights Act of 1964. The decision was authored by Justice Gorsuch, and joined by Chief Justice Roberts who had dissented in Obergefell.
Twice denied by the United States Supreme Court, individuals and organizations seeking to limit the rights of, or otherwise legally discriminate against, the LGBTQ community are now turning to state legislatures in record numbers. As of April 8, 2022, the American Civil Liberties Union (ACLU) has identified over 240 pieces of anti-LGBT legislation introduced in states across the country.2 As of April 8, 2022, 210 of these bills were either still pending or had already been signed into law.3
This article will discuss statistics that strongly suggest the LGBTQ community needs more protection, and not less protection, under the law—particularly LGBTQ youth. The article will then take a quick look at predictions made prior to Obergefell regarding the detrimental impacts that would purportedly befall America if same-sex marriage was legalized. The article will then discuss several types of anti-LGBT bills being introduced, along with some specific examples from various states. While varying in their names, descriptions, and stated purposes, each piece of anti-LGBT legislation identified here would codify, either directly or indirectly, disparate treatment of, and in some cases direct discrimination against, members of the gay, lesbian, bisexual, and/or transgender communities. The article will conclude with a discussion surrounding a case recently taken up by the Supreme Court which could impact the LGBTQ community, a decision on which is expected by the end of June 2023.
The Statistics Ironically, the protection of children is often cited as the reason for much of the anti-LGBT legislation currently being proposed across the country. However, the outcome of such legislation will most certainly harm LGBT youth, a population that already suffers from disproportionately high levels of suicide and mental health issues—usually brought on by feelings of unacceptance and fear. According to The Trevor Project, LGBTQ youth are four times more likely to consider, plan, and attempt suicide than their non-LGBTQ peers.4 In fact, it is estimated that an LGBTQ youth between the ages of thirteen to twenty-four attempts suicide in the United States every forty-five seconds.5
The National Association of Mental Illness confirms that lesbian, gay, and bisexual adults are twice as likely as heterosexual adults to experience a mental health condition, including depression and anxiety disorders, while transgender individuals are four times more likely as their cisgender peers to experience a mental health condition.6 Lesbian, gay, and bisexual youth are also more than twice as likely to report experiencing persistent feelings of sadness or hopelessness than their heterosexual peers. Transgender youth face further disparities as they are twice as likely to experience depressive symptoms, seriously consider suicide, and attempt suicide compared to cisgender lesbian, gay, bisexual, queer, and questioning youth.7
These figures are not surprising given the increased rate of bullying of lesbian, gay, and bisexual high school students. According to the national 2019 Youth Risk Behavior Survey (YRBS), high school students who identified as lesbian, gay, or bisexual reported being bullied on school property at rates nearly twice that of their straight peers (32% vs. 17.1%).8 These figures also held true for cyberbullying (26.6% of LGB students vs. 14.1% of their straight peers).
LGBTQ individuals, especially youth, frequently live in fear of rejection from their friends, family members, teachers, and even clergy. Being labeled “different” negatively affects the psychological wellbeing of LGBTQ individuals and their children. The statistics strongly support the need for legislation to create true equality and provide protections for all students, including LGBTQ individuals.
Predictions Proven Wrong People who opposed legalization of same-sex marriage conjured up a parade of horribles and suggested that the world would quite literally come to an end were same-sex marriage to become the law of the land. In 2013, Senator Ted Cruz predicted same-sex marriage will lead to socialist rule and supreme loyalty to the government, stating: “[s]ocialism requires that government becomes your god. That’s why they have to destroy the concept of God. They have to destroy all loyalties except loyalty to the government. That’s what’s behind homosexual marriage. It’s really more about the destruction of the traditional family than about exalting homosexuality, because you need to destroy, also, loyalty to the family.”9 This statement has proven painfully wrong. A partial list of religious denominations in the United States ordaining openly gay or lesbian clergy and/or permitting same-sex marriage include: the Presbyterian Church (USA),10 Episcopal Church,11 Alliance of Baptists,12 American National Catholic Church,13 Evangelical Lutheran Church of America,14 Christian Church (Disciples of Christ)—based on decisions of local congregations,15 United Church of Christ,16 Universal Fellowship of Metropolitan Community Churches,17 and Reform Judaism,18 among many other denominations.
In 2013, Senator Rand Paul predicted that gay marriage would lead to Americans attempting to marry animals, or even plants, stating, “[i]f we have no laws on this people take it to one extension further. Does it have to be humans?”19 While Senator Paul retracted the statement later that same day, not surprisingly, this author has been unable to locate any legislation introduced in the United States that would allow someone the right to marry a non-human.
In 2013 Brian Brown, President of the National Organization for Marriage, predicted that same-sex marriage would harm the economy, stating, “[o]n top of the incredible social damage caused by redefining marriage, gay marriage will place a significant economic burden on struggling states.”20 Quite the contrary, as of 2020, the Williams Institute at the University of California, Los Angeles School of Law confirmed that same-sex marriage since the Obergefell decision had resulted in an estimated $3.8 million in spending and an estimated $244.1 million in state and local sales tax revenue.21
And, as far back as 2006, former Representative Todd Akin of Missouri (who also famously declared “[if] it’s a legitimate rape, the female body has ways to try to shut the whole thing down”) stated, “[a]nybody who knows something about the history of the human race knows that there is no civilization which has condoned homosexual marriage widely and openly that has long survived.” Well, if you are reading this article, you know he was also wrong.
Seven years after the national legalization of same-sex marriage, none of the cataclysmic events predicted have occurred. As predicted by proponents of same-sex marriage, providing equal protection to the LGBT community did not impact “traditional marriage” one bit. If individuals who do not agree with gay marriage simply don’t marry someone of the same sex—their life will go on uninterrupted, while those who are now allowed to marry someone of the same sex can live their life with dignity, respect, and the same legal recognition and protections under the law as everyone else. Yet today, some of these same and very similar arguments are being paraded around, thinly veiled attacks on LGTBQ individuals and their families.
“Don’t Say Gay” Bills On March 28, 2022, Florida Governor Ron DeSantis signed into law the Parental Rights in Education Bill (House Bill 1557), also known as the “Don’t Say Gay” bill, which limits what some students may be taught in school about sexual orientation and gender identity.22 The first provision of the bill raising concern appears at lines 97-101: “Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade three or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.”23 The bill prevents teachers from discussing sexual orientation or gender identity with students grades K-3, even though it has been widely reported that these subjects are not in the curriculum for those grades. This raises the question as to why such legislation would be necessary in the first instance, other than to fuel anti-LGBT sentiments in order to score political points.
But House Bill 1557 goes a step further and allows parents to sue schools if they believe someone is violating the law without providing any standards or guidance as to what would constitute a violation of the law. The law would also allow a court to award damages to the parent and require an award of reasonable attorney fees.24 LGBT advocates fear that children of LGBT parents will be silenced by their teachers if they discuss their home life and school, and teachers will be completely unable to encourage LGBT students (or children of LGBT parents) from sharing about themselves such as, for example, how they spent their weekend with family members. LGBT advocates further fear that the law will prevent educators from discussing monumental current events involving the LGBT community or LGBT individuals. Advocates for the bill claim the stated objective is allowing parents to retain rights over what their children are taught in school.
Florida is not alone. A total of forty-two bills relating to parental rights, and other school and curriculum restrictions have been introduced in seventeen other states.25 Only five of these bills have died in committee or been postponed indefinitely, so expect to see other states follow Florida’s lead.
Restricting Healthcare for Transgender Youth The transgender community has been the overwhelming target of anti-LGBT legislation introduced in 2022.
Texas Governor Greg Abbott has indicated that gender-affirming treatments could be considered “child abuse” under Texas law and called on the Texas Department of Family and Protective Services to investigate doctors, nurses, and teachers relating to such care.26 While Texas is not among the states that have introduced legislation on this issue in 2022, a total of thirty bills restricting or outright banning gender-affirming healthcare for transgender youth have been introduced in other states.27 Of these, five have died in committee, been withdrawn, or otherwise stopped for the current legislative session.28
Alabama’s Senate Bill 184, which was delivered to the governor for signature on April 7, 2022, not only prohibits gender affirming medical treatment, but also requires any school nurse, counselor, teacher, principal, or other administrative office at a public and private school to provide a transgender student’s parent or legal guardian with “any information relating to a minor’s perception that his or her gender or sex is inconsistent with his or her sex.”29 The duty imposed by this bill exists irrespective of whether disclosure to the parent or legal guardian could put the student at risk of physical or emotional harm.30
Transgender Youth in Sports Perhaps the largest wave of anti-transgender legislation has involved banning transgender youth from participating in athletics. These have been largely prompted by transgender athlete Lia Thomas’s winning the Division I national championship in the women’s 500 freestyle in March of this year.
Facts largely left out of the discussion surrounding Lia Thomas include:
A total of sixty-six bills banning transgender athletes from sports have been introduced in thirty states. To date, bills have already been signed into law in Arizona, Iowa, and South Dakota (if not more by the time this article runs).
Arizona’s Senate Bill 1165, also known as the “Save Women’s Sports Act,” amends Arizona Revised Statutes by adding Section 15-120.02. Section b states very simply “[a]thletic teams or sports designated for ‘females,’ ‘women,’ or ‘girls’ may not be open to students of the male sex.” Thus, the statute precludes transgender women or girls from participating in women’s sports.31 In addition, the bill creates private rights of action against the school for any student who is denied an athletic opportunity or suffers any “direct or indirect harm” due to a violation of the policy. Any student retaliated against for reporting a violation of the policy is granted a similar private right of action against the school, athletic association, or organization that retaliates and a private right of action is also granted to any student who suffers any “direct or indirect harm” due to a violation of the policy.32
Section 2 of the statute also contains thirteen “findings” that are primarily scientific-based statements (some of questionable validity), and concludes with a fourteenth subsection setting forth the “purpose of the bill”: “Having separate sex-specific teams furthers efforts to promote sex equality by providing opportunities for female athletes to demonstrate their skill, strength, and athletic abilities while also providing them with opportunities to obtain recognition, accolades, college scholarships, and the numerous other long-term benefits that flow from success in athletic endeavors.”33
Noticeably missing from the bill or any of the “findings” are what effect the law will have on transgender women who wish to participate in athletics. Only this is clear: the debate over transgender women participating in women’s sports is far from over.
The Supreme Court 2023 An upcoming decision of the Supreme Court is likely to shed light on whether this new Court will sanction discrimination against members of the LGBT community. Four years ago, in issuing a very narrow ruling in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. — (2018), the United States Supreme Court specifically declined to decide whether compelling a Colorado baker to bake a cake for same-sex couples would violate the baker’s First Amendment right to free speech. In February 2022, after discussing the case at numerous conferences, the Court agreed to grant review in 303 Creative, LLC v. Elenis, which is likely to be a significant ruling pitting free speech rights against LGBTQ rights.
303 Creative involves graphic designer Lorie Smith who wanted to expand her business to include designing wedding websites. Ms. Smith opposes same-sex marriage on religious grounds and therefore wants to post a message on her website stating as much. Such a message in a place of public accommodation would violate Colorado’s Civil Anti-Discrimination Act (CADA). Smith sued the Colorado Civil Rights Commission, among other governmental agencies and employees. The federal district court granted summary judgment in favor of Colorado. Ultimately the Tenth Circuit Court of Appeal affirmed the district court’s decision, finding that: (1) her creation of a website was pure speech; (2) Smith had standing to challenge CADA; (3) that CADA satisfies strict scrutiny as the law was narrowly tailored to the state’s interest in making sure that LGBT customers have access to the unique services that Smith provided; (4) that CADA is a neutral law of general applicability; and (5) that CADA was not unconstitutionally vague or overbroad.34
The Supreme Court agreed to consider Smith’s matter only under the free speech clause of the First Amendment, while declining to take up questions concerning the First Amendment’s Free Exercise Clause.35 Most prognosticators believe that the Court will take up the free exercise question in the not-too-distant future, which will directly pit religious rights against LGBTQ rights. Creative 303 will likely be argued on the Court’s 2022-2023 calendar, with a decision anticipated by the end of June 2023.
If there is any good news for the LGBTQ community to be found in the face of the flood of nationwide anti-LGBT legislation, it is that California remains at the forefront of states across the country codifying protections for all residents, including members of the LGBTQ community. But the preemptive powers of the United State Supreme Court’s decision in Obergefell hangs in the balance given the new ideological make-up of the Court and pending cases that strive to undo equal protection for LGBTQ Americans.
ENDNOTES
Casey R. Johnson is a partner at Aitken Aitken Cohn, representing plaintiffs in personal injury, elder abuse, and insurance bad faith cases. He is also an OCBA Board member, and President of the Orange County Lavender Bar Association. When he is not advocating on behalf of his clients or volunteering, he educates attorneys about bias in the law. He can be reached at casey@aitkenlaw.com.