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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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U.S. Federal Courts

On 49th anniversary of Roe v. Wade- is it the last? Biden & others weigh in

The whole country is waiting for the Supreme Court to decide on one of the most serious challenges to abortion rights since the Roe v. Wade

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Abortion opponents gathered Friday for the annual March for Life March and Rally (Screenshot via WUSA CBS9)

WASHINGTON – As thousands gathered on the National Mall in D.C. Friday for the annual anti-abortion ‘March for Life March and Rally 2022,’ there were signs among the speakers and the participants gathered of a renewed sense of optimism that with a pending Supreme Court case, this year maybe the last annual gathering as the court looks poised to overturn Roe v. Wade.

“We are hoping and praying that this year, 2022, will bring a historic change for life,” Jeanne Mancini, president of the March for Life Education and Defense Fund, said at the event, The Associated Press reported.

A large portion of the crowd during the March for Life rally on Friday was made up of young people, with some holding signs saying they were the “pro-life generation.”

The whole country is waiting for the Supreme Court to decide on one of the most serious challenges to abortion protections that the institution heard since the Roe v. Wade decision 49 years ago, which gave women the constitutional right to abortion.

The justices of the U.S. Supreme Court heard oral arguments this past December, in Dobbs v. Jackson Women’s Health Organization, a case involving a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy. 

Mississippi’s Gestational Age Act, passed in 2018 but has been blocked by two lower federal courts, allows abortion after 15 weeks “only in medical emergencies or for severe fetal abnormality” and has no exception for rape or incest. If doctors perform abortions outside the parameters of the law, they will have their medical licenses suspended or revoked and may be subject to additional penalties and fines.

The lack of access is felt most heavily by marginalized people, says Kari White, a sociologist at the University of Texas at Austin and researcher with the Mississippi Reproductive Health Access Project. She was the lead author of a study published last month in the journal Contraception that found that Mississippians were more likely to wait longer for an abortion if they were low-income or Black, NPR reported.

In an analysis published by SCOTUS blogAmy Howe noted;

If the justices overturn Roe and Casey, the Guttmacher Institute estimates that 26 states (including Mississippi) will implement complete bans on abortion. Although the stakes in the case are thus obviously high, Mississippi takes pains to assure the justices that overruling Roe and Casey would not have ripple effects beyond abortion rights. It distinguishes abortion from other constitutionalized privacy interests, such as interracial marriage and same-sex marriage, saying that those interests – unlike abortion – do not involve the “purposeful termination of a potential life.”

In a statement to the Los Angeles Blade after the oral arguments in Dobbs v. Jackson Women’s Health Organization last December had concluded, Shannon Minter, the Legal Director for the National Center for Lesbian Rights (NCLR) warned;

“[Today’s] arguments should be a wakeup call for LGBTQ people. We must face the reality of a Supreme Court packed by one of the most reactionary presidents of our time, and we must get serious about passing a federal law that protects basic rights and liberties for our community. If you care about LGBTQ equality, it is essential as never before to do everything within your power to elect fair-minded local, state, and federal officials and to engage in real dialogue with those who do not yet fully understand or support LGBTQ people. We do not have the luxury of disengagement or passivity. If you are not actively involved in supporting a federal civil rights law for LGBTQ people, you are part of the problem.”

Minter further cautioned;

“While restrictions on abortion primarily harm women, they also compound the challenges that trans men and nonbinary people already face in accessing gynecological and reproductive health care. Being a trans man or a nonbinary individual who needs an abortion is often a nightmare even in jurisdictions that support reproductive freedom. In places like Texas, which are making abortions inaccessible to anyone, it is terrifying,”

“My heart goes out to the trans and nonbinary people who are living in fear, praying they never need this care, and that if they do, they can find a way out of the state. And for those who know they can’t afford to travel or pay for out-of-state care, there is no hope,” he added.

Graphic via NBC News

President Joe Biden and Vice President Kamala Harris released a joint statement Saturday commemorating the 49th anniversary of the landmark Supreme Court decision Roe v. Wade;

The constitutional right established in Roe v. Wade nearly 50 years ago today is under assault as never before. It is a right we believe should be codified into law, and we pledge to defend it with every tool we possess. We are deeply committed to protecting access to health care, including reproductive health care—and to ensuring that this country is not pushed backwards on women’s equality.

In recent years, we have seen efforts to restrict access to reproductive health care increase at an alarming rate. In Texas, Mississippi, and many other states around the country, access to reproductive health care is under attack. These state restrictions constrain the freedom of all women. And they are particularly devastating for those who have fewer options and fewer resources, such as those in underserved communities, including communities of color and many in rural areas.

The Biden-Harris Administration strongly supports efforts to codify Roe, and we will continue to work with Congress on the Women’s Health Protection Act. All people deserve access to reproductive health care regardless of their gender, income, race, zip code, health insurance status, immigration status, disability, or sexual orientation. And the continued defense of this constitutional right is essential to our health, safety, and progress as a nation.

We must ensure that our daughters and granddaughters have the same fundamental rights that their mothers and grandmothers fought for and won on this day, 49 years ago—including leaders like the late Sarah Weddington, whose successful arguments before the Supreme Court led to the landmark Roe v. Wade decision in 1973.

At this pivotal moment, we recommit to strengthening access to critical reproductive health care, defending the constitutional right established by Roe, and protecting the freedom of all people to build their own future.

A recent poll conducted by CNN found that a large majority of Americans — almost 70 percent — said that they oppose overturning Roe v. Wade. Thirty percent of respondents said that they supported the move. 

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Pennsylvania

New GOP majority city council to repeal LGBTQ+ law in Pennsylvania

“I don’t know of any reasons for repealing it other than a political move […] This issue should not be politicized”

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Chambersburg, Pennsylvania (Photo Credit: Borough of Chambersburg)

CHAMBERSBURG – The council of this central Pennsylvania borough (town) will meet on Monday, January 24 for a likely vote to repeal an ordinance passed this last October that safeguards residents against discrimination based on their sexual orientation, ethnicity or gender identity.

Opposition to the ordinance is led by newly installed borough council president Allen Coffman, a Republican. In an interview with media outlet Penn Live Saturday, Coffman said, “All of us that ran in this election to be on council we think we got a mandate from the people,” he said. “People we talked to when we were campaigning did not like this ordinance at all. I don’t know what the vote will be, but I have a pretty good idea.”

The political makeup of the council changed with the November municipal election, which ushered in a 7-3 Republican majority.

The ordinance, which extends protections against discrimination to gay, transgender or genderqueer people in employment, housing and public accommodations, was passed in October by the then-Democratic majority council, Penn Live reported.

“I don’t know of any reasons for repealing it other than a political move,” said Alice Elia, a Democrat and the former Chambersburg borough council president. “This issue should not be politicized. It’s an issue of justice and having equal protection for everybody in our community. It shouldn’t be a political or a Democratic or Republican issue. This should be something we are all concerned about.”

Coffman told Penn Live that the ordinance serves no purpose and is redundant. He points out that Pennsylvania’s Human Relations Commission handles discrimination complaints from residents across the state.

“There are no penalties, no fines,” he said. “There’s nothing that the ordinance can make someone do. The most they can hope for is that the committee request the two parties to sit down with a counselor or mediator and talk about it. Quite frankly there is nothing that compels them to. There’s no teeth in this.”

Penn Live’s Ivey DeJesus noted if Chambersburg succeeds in repealing the ordinance, it would mark the first time an LGBTQ inclusive law is revoked in Pennsylvania. To date, 70 municipalities have ratified such ordinances.

The Commonwealth of Pennsylvania is one of the 27 states in the nation that have no explicit statewide laws protecting people from discrimination on the basis of sexual orientation or gender identity in employment, housing and public accommodations.

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Virginia

Virginia Republican lawmaker introduces anti-Trans youth sports bill

Under the bill, male students are not permitted to participate on any school athletic team or squad designated for ‘females’

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Virginia State Capitol building (Washington Blade file photo by Michael Key)

RICHMOND – A Virginia lawmaker has introduced a bill that would ban transgender students from joining school sports teams that are consistent with their gender identity.

Senate Bill 766, which state Sen. Jennifer Kiggans (R-Virginia Beach) introduced on Friday, would require “each elementary or secondary school or a private school that competes in sponsored athletic events against such public schools to designate athletic teams, whether a school athletic team or an intramural team sponsored by such school, based on biological sex as follows: (i) ‘males,’ ‘men,’ or ‘boys’; (ii) ‘females,’ ‘women,’ or ‘girls’; or (iii) ‘coed’ or ‘mixed.’”

“Under the bill, male students are not permitted to participate on any school athletic team or squad designated for ‘females,’ ‘women,’ or ‘girls’; however, this provision does not apply to physical education classes at schools,” adds the bill. “The bill provides civil penalties for students and schools that suffer harm as a result of a violation of the bill. Such civil actions are required to be initiated within two years after the harm occurred.”

Kiggans introduced her bill less than a week after Republican Gov. Glenn Youngkin took office.

Youngkin during his campaign said he does not support allowing trans children to play on sports teams that are consistent with their gender identity. Elizabeth Schultz, an anti-LGBTQ former member of the Fairfax County School Board, has been named the Virginia Department of Education’s Assistant Superintendent of Public Instruction.

The General Assembly’s 2022 legislative session began on Jan. 12 with Republicans in control of the state House of Delegates. Democrats still control the state Senate, and they have pledged to thwart any anti-LGBTQ bills.

“Let’s be clear: This is part of an ongoing, nationwide effort to exclude trans people from enjoying the benefits of sports like their cisgender peers,” tweeted the American Civil Liberties Union of Virginia on Friday after Kiggans introduced SB 766. “We won’t tolerate this.

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