We are just weeks into the state legislative sessions of 2017, and there are already dozens of harmful laws being proposed across the United States that would legalize discrimination against LGBT community and women.
Unsurprisingly, these bills tend to appear in conservative states, sponsored by Republican senators. Some of these bills are explicit targeted at transgender people—such as the so-called "bathroom bills" that would make it unlawful for trans people to use public restrooms—while other, broader bills allow for discrimination more generally, and are written in the name of "religious freedom."
Alabama, Illinois, Kansas, Kentucky, Minnesota, Missouri, Oklahoma, South Carolina, South Dakota, Texas, Virginia, and Washington state have all introduced anti-trans bathroom laws. Many states have proposed multiple bills: Missouri has three on the table, as does Virginia, and there are two in both Kentucky and Texas. In total, there are currently 19 anti-trans bathroom bills proposed, and this number is only expected to grow.
In Indiana, Oregon (HB2673), and Arizona (SB1199), bills were introduced that would prevent or make it difficult for transgender people to correct the gender indicated on their legal identification. The severity of these bills varies; both of the bills in Arizona and Oregon appear to simply make the name and gender change process more difficult, while Indiana's (HB1361) would make it impossible for someone to change the sex indicated on their birth certificate unless a clerical error was made at the time of birth, or the individual can present chromosomal proof that they are a different gender.
Religious exemption bills—which do not specifically target the LGBTQ population or women's right to choice but have traditionally been used to do just that—are similarly proliferating throughout the country. "In 2014 state legislature sessions, I think there were 13 religious exemption bills proposed," says James Esseks, the director of the ACLU's Lesbian, Gay, Bisexual, Transgender, and HIV Project. The following year, in 2015, Esseks says that number jumped to roughly 60 bills. Last year, things worsened. "In 2016, there were 110 or so religious exemption bills in state legislature," Esseks said, adding that the ACLU has been effective in preventing most of these bills from becoming law. "Our kill rate has been very high, but a few have slipped through," he said.
Religious freedom doesn't give anyone the right to discriminate against other people.
Discriminatory religious exemption laws give special rights to people with prejudicial beliefs against certain types of people, essentially creating a new class of American citizen, according to Esseks. "Religious freedom is a cornerstone American value," he explains. "It's important in our culture, history, and is protected in our constitution—as it should be. But, you know, religious freedom doesn't give anyone the right to discriminate against other people."
Some states have used this rhetoric to attack LGBTQ parents who are looking to adopt. In South Dakota, Senate Bill 149 would broadly enable federally funded child-placement agencies to refuse service on the grounds of religious belief, meaning that these agencies could be empowered to discriminate against any potential foster parent who is gay, transgender, or simply not Christian. Oklahoma (HB1507) and Alabama (HB24) have proposed similar bills.
Bills that seek to exempt people from existing anti-discrimination laws on religious grounds have appeared in Oklahoma (SB530), Colorado (HB1013), Hawaii (HB823), and Minnesota (HF43) this year. There are also bills in Mississippi (HB846), Missouri (HB205), New Jersey (A1706), Oklahoma (SB197), and Virginia (SB40), Kentucky (HB105), and Texas (SB651) that seek to enable discrimination against same-sex couples in varying ways, again with a purported religious justification.
There are bills in Illinois (SB64), South Dakota (SB149), Oklahoma (HJR1023), Washington (HB1178), and Wyoming (HB135) that would allow anyone "to act with impunity based on religious beliefs or moral convictions regarding marriage for same-sex couples, sexual activity outside of heterosexual marriage, and transgender people," according to the ACLU.
In Tennessee, Senate Bill 1 would allow a counselor or therapist to refuse treatment to someone if they disapproved of their "goals, outcomes, or behaviors," which could easily be applied to someone who is gay, transgender, or seeking an abortion. The supposed mental health caregiver would, naturally, then be immune to recourse. "The refusal to provide counseling or therapy services cannot be the basis for a civil cause of action or criminal prosecution," according to SB1.
There are bills in Texas (SB6), Missouri (HB202), South Carolina (H3012), and Virginia (HB1667) that actually want to prevent localities from establishing laws that provide more protections than the state presently afford, in essence making it illegal to seek protection against discrimination that isn't currently protected—and gender identity is not explicitly covered in many anti-discrimination laws.
We have a concern that Trump administration will try to use the same tool, at the federal level.
Esseks says that courts have generally found religious exemption bills to be unlawful, but not always—and Esseks worries that the current political climate my help them flourish. "We have a concern that Trump administration will try to use the same tool at the federal level, with the executive order, or both to undermine LGBT equality and to license discrimination against LGBT and women and other folks," he says.
Esseks believes that these bills "need to be seen and understood for what they are." The fact they are packaged as fighting for religious rights, he says, is a lie. "The country sees this is discrimination. The country has a very clear answer to it," Esseks notes, pointing to Vice President Mike Pence's time as governor of Indiana: In April of 2015, Pence signed a discriminatory religious exemption bill into law, only to be shut down shortly after, and was forced to amend the bill in the interest of equality.
It is important to realize that these laws do not appear in a vacuum; they aren't randomly being proposed. "There are advocacy organizations that are pushing these bills in multiple states," Esseks explains: This is a nationwide assault on equality, an organized attempt to undermine the freedoms of women and LGBT Americans, he says. "There are advocates behind the scenes pushing [discriminatory laws], and there are advocates in states looking around to see what others are doing."
Legislative sessions vary state by state. It is still very early in the year, and more bills are expected to be proposed as the weeks pass. "They are pushing these exemption bills in state legislatures, hoping they can slip them in under the radar," Esseks explains, adding how vital it is that the public remain knowledgeable and vigilant. If such laws are allowed to pass in greater volume, "it dilutes and undermines LGBT equality and for women in ways that we might never to fix," Esseks says.