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Advocates prepare for fight as anti-trans youth legislation advances in S.D.

ACLU is planning lawsuit to block enforcement of state law

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trans youth, gay news, Washington Blade

The South Dakota legislature is considering a bill to criminalize transition-related care for trans youth. (Photo by Dk4hb; courtesy Wikimedia Commons)

Transgender advocates are beginning to fret — and plan litigation — as a new kind of anti-trans legislation has begun to advance in state legislatures aimed at criminalizing transition-related care for trans youth, including one measure that is halfway to becoming law in South Dakota.

Introduced in more than a dozen states at the start of the legislative session this year, the anti-trans legislation was a major point of discussion at a transgender rights panel Tuesday in D.C. hosted by the American Constitution Society.

Harper Jean Tobin, director of policy for the National Center for Transgender Equality said those bills — along with other measures seeking to inhibit participation of transgender kids in sports — represent anti-LGBTQ groups’ latest efforts to thwart LGBTQ rights after previous failures.

“Anti-LGBT groups realize that whatever they’re trying to scare people [with] lately is becoming less effective and so they find a new scary,” Tobin said. “After marriage equality became less effective as a thing to scare people about, I think it was trans people in general. That’s become a little bit less effective. It was bathrooms, and that’s become a little bit less effective, Now it’s, oh my gosh, trans young people in healthcare and trans people in sports.”

In South Dakota, the state House on Wednesday approved legislation known as House Bill 1057, which would criminalize providing transition-related care to youth, including puberty blockers and gender reassignment surgery, making them a Class 1 felony. The penalty would be a maximum of a year in prison and a fine of up to $2,000.

Since its introduction, the bill was amended to reduce its scope to youth under age 16 as opposed to all minors up to age 18, and the penalty was reduced from Class 4 felony to a Class 1 felony. The bill, nonetheless, still carries a maximum penalty of one year in prison and a maximum $2,000 fine. (Tobin referred to the changes to the bill as “small tweaks that are trying to make it seem less awful.”)

Tony Perkins, president of the Family Research Council, commended the South Dakota lawmakers for passing the legislation in an email blast this week to supporters.

“At one time, using cross-sex hormones or performing gender reassignment surgery on minors was rare,” Perkins said. “Now, however, these procedures are also being done at younger and younger ages, making bills like HB 1057 urgent. Cross-sex hormones are associated with a higher risk of heart attacks and blood clots, infertility, loss of bone density, and sexual dysfunction.”

The legislation, introduced by State Rep. Fred Deutsch, passed in the South Dakota house by a vote of 46-23 and now heads to the state Senate, which already has plans to advance the bill. A committee hearing could happen as soon as this week, according to the Washington Post.

Alexis Chavez, medical director for the Trevor Project, condemned the passage of the legislation in a statement shortly after its passage.

“This bill actively contradicts evidence-based medical recommendations and restricts parents’ ability to support their child with best-practice care, which has been shown to decrease suicide risk,” Chavez said. “Medical decisions should be made between doctors and their families — politicians have no role in this intensely personal process.”

South Dakota Gov. Kristi Noem, a Republican, hasn’t indicated whether she will sign or veto it. The Blade has placed a request in with her office seeking comment.

If the South Dakota bill becomes law, anti-trans groups would likely see it as a roadmap to proceed in other states. To head that off, a major transgender rights campaign would likely emerge to convince Noem to veto the bill should it reach her desk.

“There are signs the playbook for post-North Carolina HB 2 is somewhat applicable here in that the South Dakota State Medical Association and Chamber of Commerce have both come out against that legislation, as has the American Medical Association,” Tobin said.

According to a list compiled by Human Rights Watch, more than a dozen bills that would criminalize providing transition-related care to transgender youth are pending before state legislatures.

Bills in Colorado, Florida, Kentucky, Missouri, New Hampshire and South Dakota would criminalize the care, while legislation in Illinois, Missouri, Oklahoma and South Carolina would institute professional discipline, such as revocation of licenses. Lawmakers in Georgia, Texas and Utah have also signaled they’ll introduce similar legislation.

Because all these bills are similar, transgender advocates are looking to the usual suspects of anti-LGBTQ groups, such as the Heritage Foundation and Alliance Defending Freedom, as their source.

Tobin pointed out Deutsch introduced the legislation in South Dakota after flying to D.C. on the taxpayers’ dime for a Heritage Foundation event on “the sexualization of children.”

“They had a panel all about how we have to stop kids from being trans because that somehow is the sexualization of children,” Tobin said. “And this state legislator — apparently several others — came home with this great idea that had been pitched to them at this conference panel, which was let’s make it a crime to provide health care to trans kids.”

Conservative pundits and lawmakers are whipping up support for the legislation by drawing on the recent spike in youth identifying as transgender and stories of youth who underwent a gender transition process, but later expressed regret over the decision. Meanwhile, the Centers for Disease Control has revealed in a recent report puberty blockers can reduce suicide rates of transgender teens, who have high rates of suicidal ideation.

Sharita Gruberg, director of policy for LGBTQ research and communications at the Center for American Progress, said the lawmakers and anti-LGBTQ forces raising concerns are distorting the record.

“It’s always funny to me what the right thinks medical care looks like for trans people,” Gruberg said. “Like the idea that there are doctors who are prescribing surgical care for minors is a widespread thing is absurd, but I think that’s something that’s like latched on in the public imagination as like when we’re talking about what health care for trans youth looks like.”

Meanwhile in other states, including New Hampshire, Georgia, Indiana, Missouri, Tennessee and Washington State, legislation is pending that would restrict the ability of transgender kids to participate in school sports consistent with their gender identity.

Tobin said the sports bills have a unique way of eliciting sympathy because the public has assumptions of athletic performance based on sex, which is difficult to dissuade.

“People think that they understand the relationship between bodies and gender, and especially hormones,” Tobin said. “We talk about sex hormones, even though everyone’s body has testosterone, you can’t ovulate without testosterone, but we still call it a male sex hormone associated with maleness and more of it means you’re born male. We believe that it’s a primary factor in athletic performance across all the different sports that involve a huge variety of different physical skills, and the science doesn’t support that.”

Much of this anti-trans legislation seems based on a situation in Connecticut in which two transgender teens outperformed female athletes in a track event, which excluded the other racers from potential sports scholarships. Alliance Defending Freedom has spearheaded a complaint against the state athletic association in Connecticut, which the Department of Education has agreed to take up.

Gruberg pointed out the transgender athletes in Connecticut were black and girls behind the complaint are white, so race is in play.

“When we’re talking about integrating sports, these are similar arguments that have been made in the past,” Gruberg said. “I don’t want to erase the racial lens either that our opponents are using as they’re attacking trans people’s participation. There’s certain people — who counts as a woman, who is able to — has a lot of dimensions and they’re picking their spokespeople and the woman who placed eighth and could have placed sixth is also white.”

If all else fails and the bills become law, plans are already underway for litigation to enjoin the states from enforcing the anti-trans bills.

Chase Strangio, a transgender advocate and staff attorney for the American Civil Liberties Union, said litigation is being planned in South Dakota, which could be followed by other lawsuits.

“We are prepared to file suit in South Dakota should HB 1057 pass and get signed into law and will continue to assess litigation options in any state where a ban on gender affirming care is pending,” Strangio said. “These measures are a direct attack on the ability of transgender young people to survive and raise serious Equal Protection and Due Process concerns for young people and their parents. I have no doubt that any state that passes one of these laws will have to contend with significant litigation and legal liability on multiple fronts.”

But there’s no assurances the litigation would ultimately be successful in court, especially in the aftermath of President Trump remaking the judiciary with a record breaking number of Senate-confirmed conservative appointments.

At the ACS panel, the Blade asked whether there was any consideration to reaching out to lawmakers behind the bills to craft different legislation that would codify the process by which doctors prescribe transition-related care to youth, thereby allowing lawmakers to say they voted for a ban and trans advocates to say were able to codify the medical process.

Tobin, however, didn’t like that idea, pointing out states already have in place medical malpractice laws that cover a situation in which doctors violate best practices. Further, she said the proposal “is usually a non-starter” for sponsors of the bills pending before legislatures.

“That would be a bad idea, I think, the idea that you’re going to codify into law and especially with the criminal offense what the standard of care is rather than allow, as happens with the rest of the practice of medicine, the standards of care to evolve over time and be defined and updated by the different medical associations, and not have 57 jurisdictions have to update their codes every time clinical guidelines are updated and so forth,” Tobin said. “The Criminal Code is not a place where we should be defining the medical standard of care, we already have laws for that.”

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Florida

Florida’s Duval County Public Schools censors LGBTQ visibility

Duval County Public Schools slammed for removing ‘Safe Space’ stickers by Equality Florida as schools across state return to classes

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Screenshot/WJCT PBS Jacksonville, Florida

JACKSONVILLE – As Duval County Public School’s K-12 students begin their first day of school Monday, they are returning to classrooms that have been stripped bare of visible support for LGBTQ students.

Last week, Duval County Public School’s leadership held an emergency meeting with all of the school district’s principals in which they were directed to remove all posters, wall decorations, and stickers that support and affirm LGBTQ students, the latest in a wave of what LGBTQ+ advocates say are censorship efforts in the wake of the Don’t Say LGBTQ Law (HB 1557) taking effect across the state.

Equality Florida — a statewide civil rights organization focused on the LGBTQ community — published a statement criticizing Duval County Public Schools officials for putting out guidance to principals that advised the removal of the rainbow signage.

“The district’s censorship of LGBTQ-inclusive classroom environments sends a dangerous message to young people,” said Joe Saunders, Equality Florida Senior Political Director.

“In tearing down rainbow Safe Space stickers and tossing inclusive posters into the trash, Duval County Public Schools is telling students that there is something inherently wrong with LGBTQ people — and telegraphing to LGBTQ youth that they should remain hidden. Despite false assurances from Republican proponents of the Don’t Say LGBTQ Law that its scope would be narrow and its impacts limited to grades K-3, we are witnessing sweeping effects of this intentionally-vague policy across the state, with broad censorship of LGBTQ people being applied to every grade level.”

The Florida Times-Union newspaper reported Duval Schools officials say the removal is one facet of a district-wide rebrand of its existing “All In For Safe Schools” campaign that will better comply with the new Parental Rights in Education Act, which became law in July. Equality Florida calls the gesture “censorship.”

The move from Duval County Public Schools comes as schools across the state grapple with implementing the Don’t Say LGBTQ law. Already, the law has resulted in the banning of books and stigmatizing of families in counties across the state. Exactly what advocates say they warned about since the law’s inception. This decision by Duval County Public Schools to censor LGBTQ inclusion across the district has angered the community.

It also comes as LGBTQ youth, the very students now seeing their identities scrubbed from Duval classrooms, continue facing higher risks of depression, anxiety, bullying, discrimination, and suicidality than their peers.

A recent study by the Trevor Project showed a staggering majority of LGBTQ youth sharing that recent policy battles like that over HB 1557 and the subsequent impacts have had a negative impact on their mental health.

“We are in the process of rebranding the ‘All In for Safe Schools’ program,” district spokesman Tracy Pierce told the Times-Union. “The purpose of the rebranding is to send a clear message to all students that the support available through the program is open to them and not limited to any specific student population.”

“School districts are charged with doing everything in their power to mitigate the harms of HB 1557 and ensure that every student is protected in school and every family is respected. Duval County Public Schools should reverse course and recommit to cultivating an environment that is inclusive of and celebrates all students,” said Equality Florida’s Saunders.

In another circumstance of Florida’s newly minted ‘Don’t Say Gay’ law’s negative impact, last month a 12-min training video aimed at teaching middle and high school students how to prevent bullying and support their LGBTQ+ peers in Duval County Public Schools has been removed from student access.

Jacksonville Today journalist Claire Heddles reported at the time that besides the video, the district planned to dramatically reduce a LGBTQ+ support guide.

The video is now inaccessible and, in response to questions from Jacksonville Today, Duval Schools District spokesperson Tracy Pierce said, “The materials you referenced have been removed for legal review to ensure the content complies with recent state legislation.” 

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Federal Government

CMS, HHS pledge ‘prevent anti-Trans policies taking effect’ in Florida

“Attempts to restrict, challenge, or falsely characterize this potentially lifesaving care as abuse is dangerous”

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Screenshot/YouTube Chiquita Brooks-LaSure, Administrator, U.S. Centers for Medicare & Medicaid Services

WASHINGTON – After Florida’s Agency for Health Care Administration (AHCA) signaled its plans to stop Medicaid reimbursements for transgender related healthcare last week, U.S. federal health officials expressed concerns with the move in an exclusive statement to The Los Angeles Blade. 

The U.S. Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Health and Human Service’s (HHS) Office of Civil Rights (OCR) pledged they would “continue to do everything within our authority to protect Medicaid beneficiaries’ access to care and prevent discriminatory policies from taking effect.”

Pursuant to AHCA’s announcement of the new rules, coverage exemptions would be carved out of the state’s Medicaid plans for health treatments like puberty blockers, hormone therapies, or surgical procedures for gender dysphoria. 

Florida will join other conservative states that have moved in recent years to prohibit or restrict access to transgender healthcare, particularly for young people. In May, the Texas Supreme Court ruled the state could weaponize its Child Protective Services to investigate parents for child abuse for giving their transgender children medically approved health treatments. 

In March, the HHS’s OCR issued a Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy, writing: “Attempts to restrict, challenge, or falsely characterize this potentially lifesaving care as abuse is dangerous. Such attempts block parents from making critical health care decisions for their children, create a chilling effect on health care providers who are necessary to provide care for these youth, and ultimately negatively impact the health and well-being of transgender and gender nonconforming youth.

In May, OCR announced Title IX’s rules prohibiting discrimination on the basis of sex includes sexual orientation and gender identity, with HHS Secretary Xavier Becerra writing, ““Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone – including LGBTQ people – should be able to access health care, free from discrimination or interference, period.”

Shortly after the news in Florida broke on Thursday, the LGBTQ+ legal advocacy organization Lambda Legal told The Blade, “We are exploring all possible avenues for challenging this discriminatory rulemaking.” 

The American Academy of Pediatrics (AAP) and its Florida Chapter (FCAAP) also shared a statement with The Blade condemning the state’s “interference with the physician-patient relationship and its prohibition of this vital care.”

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U.S. Federal Courts

Michigan AG Nessel joins coalition opposing Florida’s ‘Don’t Say Gay’ law

“Non-inclusive educational environments have severe negative health impacts on LGBTQ+ students, resulting in increased mental health issues”

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Michigan Attorney General Dana Nessel speaking at the Michigan capitol building for Pride June 26, 2022 Lansing, MI (Photo Credit: Office of the Michigan Attorney General)

By Jon King | LANSING – Michigan Attorney General Dana Nessel has joined a coalition of 16 attorneys general from across the country in filing an amicus brief opposing Florida’s “Parental Rights in Education Act,” otherwise known as the “Don’t Say Gay” law.

Nessel, a Democrat who is Michigan’s first openly gay top statewide official, says that the law, which prevents classroom discussion of sexual orientation or gender identity, poses a serious threat to LGBTQ+ students who she says are particularly vulnerable to discrimination.  

“This bill is an affront not just to educators, but also to LGBTQ+ students, especially those who may already be experiencing the stigmatizing effect of their identity at school,” Nessel said. “This bill is not motivated by the desire to limit inappropriate content in classrooms. It is meant to have a chilling effect on how educators do their jobs and may also violate the First Amendment rights of students and teachers alike. I gladly join my colleagues on this brief and hope it discourages other states, including Michigan, from considering similar legislation.” 

The law is being challenged in federal district court by a group of students, parents, teachers and organizations seeking to prevent its enforcement by alleging that it violates, among other things, the Equal Protection Clause and the First Amendment.  

The law entirely bans “classroom instruction” on sexual orientation or gender identity in kindergarten through Grade 3 while also requiring the state education agency write new classroom instructions for standards that must be followed by grades four through 12. 

Opponents say that because the law does not define many of its key terms, like “classroom instruction,” it is forcing Florida teachers to censor themselves out of fear of prosecution. That fear is further compounded by the fact that the law also allows a parent to bring a civil claim against a school district to enforce its prohibitions.  

There are two main points in the brief.

“Florida’s law is extreme,” it states. “Although Florida claims the Act is intended to protect children and preserve parental choice, the attorneys general have curricula in place that allow for age-appropriate discussion of LGBTQ+ issues while respecting parental views on the topic.”

“The law is causing significant harms to students, parents, teachers, and other states,” claims the brief. “Non-inclusive educational environments have severe negative health impacts on LGBTQ+ students, resulting in increased rates of mental health disorders and suicide attempts. These harms extend to youth not just in Florida, but throughout the country.”

Nessel is joining the amicus brief alongside Attorneys General from New Jersey, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New York and Oregon.

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The preceding article was previously published by the Michigan Advance and is republished with permission.

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Jon King has been a journalist for more than 35 years. He is the Past President of the Michigan Associated Press Media Editors Association and has been recognized for excellence numerous times, most recently in 2021 with the Best Investigative Story by the Michigan Association of Broadcasters. He is also an adjunct faculty member at Cleary University. Jon and his family live in Howell, where he also serves on the Board of Directors for the Livingston Diversity Council.

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The Michigan Advance is a hard-hitting, nonprofit news site covering politics and policy across the state. We feature in-depth stories, briefs and social media updates, as well as top-notch progressive commentary. The Advance is free of advertising and free to our readers. We wholeheartedly believe that journalists have the biggest impact by reporting close to home, explaining what’s happening in our state and communities — and why. Michigan has hundreds fewer reporters than just a couple decades ago. The result is too many stories falling through the cracks.

The Advance is part of States Newsroom, a national 501(c)(3) nonprofit supported by grants and a coalition of donors and readers. The Advance retains editorial independence.

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