The GOP's extreme bills: Anti-transgender discrimination

In September 2022, House Republicans released their Commitment to America plan, promising to “preserve our constitutional freedoms” and proclaiming, “It’s time we remember that all men and women are created equal and endowed with God-given rights to life, liberty, and the pursuit of happiness.” But in the first few weeks of the Congress that began in January, they and their Senate Republican counterparts have already filed a host of bills aimed at attacking transgender people and taking away their basic rights.

An American Independent Foundation review of legislation filed so far in the 118th Congress found eight proposals aimed, in whole or in part, at undermining equal rights for transgender and gender-nonconforming people. All are sponsored by Republican lawmakers:

• No Tax Breaks for Radical Corporate Activism Act (S. 187 and H.R. 429), bills sponsored by Sen. Marco Rubio and Rep. Brian Mast, both of Florida, to increase taxes for companies that reimburse the cost of gender-affirming care for their employees’ kids or travel expenses for employees to obtain an abortion by disallowing them as business expense tax deductions.
• My Child, My Choice Act of 2023 (H.R. 216), a bill sponsored by New Jersey Rep. Jeff Van Drew to override decisions by local school systems on whether to teach about LGBTQ people without advance parental consent.
• Parental Rights Over The Education and Care of Their (PROTECT) Kids Act (S. 200 and H.R. 736), bills sponsored by South Carolina Sen. Tim Scott and Michigan Rep. Tim Walberg to require parental consent before any elementary or middle school student changes their preferred name, pronouns, or gender markers on any school form or changes which bathroom or locker room they use, potentially forcing schools to out transgender kids to their families.
• Productivity Over Pronouns Act (H.R. 985), a bill sponsored by Texas Rep. Troy Nehls to prohibit federal agencies from producing inclusive or gender-neutral language guidance.
• Protection of Women and Girls in Sports Act (H.R. 734), a bill sponsored by Florida Rep. Greg Steube to require that “in athletics, sex shall be recognized based solely on a person’s reproductive biology and genetics at birth” under Title IX, the section of the federal education law that bars sex discrimination in school activities.
• Safety and Opportunity for Girls Act (H.R.935), a bill sponsored by Illinois Rep. Mary Miller. While the text of the bill has not yet been received in Congress, a bill with the same name introduced by Miller in 2021 aimed to ensure that, in her words, sex, for the purposes of protections under Title IX, be defined as “biological sex, not gender identity. My goal is to protect spaces like bathrooms, locker rooms, and sports teams for women like my five daughters, and so many others across the country.”
• Ensuring Military Readiness Act (S.435 and H.R.1112), bills sponsored by Rubio and Indiana Rep. Jim Banks that, according to Rubio’s official website, “would prohibit any individual with a history or diagnosis of gender dysphoria from serving in the military, with limited exceptions. The legislation builds on Trump era restrictions that were repealed by the Biden Administration, but adds more stringent requirements and revamps the Defense Enrollment Eligibility Reporting System (DEERS) to ensure all service members’ gender markers match their biological sex.” Such bills would bar nearly all transgender Americans from serving in the military.
• Establishing a Women’s Bill of Rights (S. Res.53 and H. Res. 115), nonbinding resolutions sponsored by Mississippi Sen. Cindy Hyde-Smith and Arizona Rep. Debbie Lesko to affirm that there are only two genders, male and female, and that “sex” protections under federal law should only apply to a person’s “biological sex (either male or female) at birth.”

Gillian Branstetter, a communications strategist for the ACLU’s Women’s Rights Project and LGBTQ & HIV Project, predicted in an interview with the American Independent Foundation that the bills will advance in the Republican-controlled House of Representatives.

“I think that, as we’ve seen in this still quite young Congress, the most extreme arm of the right wing is wielding an oversized amount of influence,” Branstetter said. “And the same people who are cornering Kevin McCarthy in the speaker vote or seizing these committee assignments, they are quite obsessed with attempting to erase transgender people from public life.”

Branstetter observed that the bills are aimed at dividing the basic question — whether LGBTQ people deserve equal legal rights — into a number of little questions, in a strategic attempt to undermine such rights a little bit at time:

Something anti-trans activists have been very good at is getting the public and the mainstream media to view questions about transgender rights as siloed off and mutually exclusive. So it makes it seem like you’re not having one conversation about whether transgender people deserve full dignity and legal equality. It makes it seem like you’re having a bunch of little conversations about, well, should a transgender girl be allowed to play on the field hockey team with her classmates? Should a transgender woman be put into a women’s prison? Should a teacher have to tell their parents? You know, it makes it seem like you’re having all these small little conversations. The overarching goal here is a kind of death by 1,000 cuts. That through the constantly shifting of rhetorical focus, you can attempt to package a eliminationist project as somehow reasonable and moderate.

David Stacy, government affairs director at the Human Rights Campaign, told the American Independent Foundation that while he is hopeful that none of these bills will become law in the current Congress, where a Democratic-controlled Senate and President Joe Biden can stop them, they can still have a harmful effect on an already vulnerable minority population:

All of these are intended to marginalize and otherize the LGBTQ community, to make it unacceptable to be that. And so when that’s the intent of the other side and part of the goal — it’s not just to pass the laws, but to create that marginalization — of course it’s harmful, and it’s having that effect. And we see it in LGBTQ data around youth suicides, suicide ideation. We see it in just the general, any time you do polling, that the community is feeling attacked.

The “death by 1,000 cuts” approach to governance is not a new strategy. According to Nick Kotz’s 2005 book “Judgment Days: Lyndon Baines Johnson, Martin Luther King Jr., and the Laws That Changed America,” for example, as the House of Representatives debated the Civil Rights Act in 1964, segregationists unsuccessfully offered amendments aimed at exempting podiatrists and excluding beauticians and barbers from public accommodations protections, arguing that they were unique cases. Rep. William Colmer (D-MS) argued that white barbers should not have to cut the hair of Black customers because it is “a service for which they were not trained.” Rep. Howard Smith (D-VA) suggested that white foot doctors cutting corns off feet “would want to know whether they smelled good or bad.”

“I think that those parallels seem to be apt,” said Stacy. “I do think that what we’re seeing is they are looking at how they can stoke people’s fears that somehow they are going to be negatively impacted by extending protections to LGBTQ people. And so, they’re looking for any way they can try to make that argument. These are pretty weak arguments, to be honest.”

“I would say what we still consistently see despite the wave of attacks we’ve seen over the last few years, is [support for] LGBTQ equality remains really strong, continues to grow, we’re seeing support for nondiscrimination at 70% or higher, and that’s been consistent and increasing.”

While anti-LGBTQ activists have been trying to make educational policy in particular a wedge issue, an April 2022 NPR and Ipsos poll of parents found most are unconcerned. Ipsos reported: “Republican (26%) parents are more likely than Democratic (11%) and independent (17%) ones to say their child’s school is not teaching about sexuality and gender identity in a way that is consistent with their values. This is the only issue in the survey where there is a significant difference in opinion between Republican and Democratic parents.”

Stacy said that legislators introducing anti-trans bills and messaging are “mostly talking to their own base. … It was all about primary elections.”

Branstetter noted that attempts like those of Hyde-Smith and Lesko to frame anti-trans discrimination as the protection of women’s rights are “fundamentally ludicrous,” given the Republican Party’s opposition to women’s reproductive rights, equal pay legislation, paid parental leave, and other “real policies that provide material benefit to women across this country.”

She warned that these proposals are about stopping gender nonconformity of all sorts:

So what’s important for cis[gender] people to understand, and I think most do, is that you too will fall outside of the most rigid interpretation of those rules. So when you see this sort of brick-by-brick approach that these members of Congress and state legislators are attempting to move forward, I think it behooves you to ask, Where does this path lead? And how much am I willing to accept the argument that I should be afraid of other people’s freedom? Because doesn’t that empower other people to be afraid of my own freedom?

Stacy pointed out that bills like those being introduced at the federal level are becoming law in some Republican-controlled states: “I think we’re going to see, places like Arkansas that have passed a gender-affirming care ban and other states that are doing it. We’re gonna see people moving from those places. We’re going to see kids and adults that are harmed.”

“This is a fight in front of us, and if anybody thinks these things can’t pass, they’re wrong,” he concluded. “But I think we can stop them. And I’m optimistic that we can stop them.”

Published with permission of The American Independent Foundation.