Monday, March 20, 2023

By no means the first foray into gender identity-based discrimination, the legacy of North Carolina’s HB2 (2016) — known colloquially as the bathroom bill — is one we cannot shake. The law has since been repealed but was ultimately a turning point for what was possible in terms of legal action against the trans community. HB2 was particularly bothersome and ill-advised because of the legal mechanism it used to achieve its goals: preemption.

In simplest terms, preemption is a legal doctrine that allows a higher level of government to limit or eliminate the regulatory authority of a lower level of government. 

At the Center for Public Health Law Research at Temple University’s Beasley School of Law, we have been capturing the ways preemption has been actualized across the country since 2019 in 15 different areas of law, from paid leave policies to tax and expenditure limits, to the multitude of ways states are using preemption to strip away the rights of transgender individuals, piece by piece.

HB2 — a state-level retaliation for a local-level action to protect trans rights — was part of the first wave of preemption-based attacks on transgender individuals and the Queer community more broadly. Though the chain of events in North Carolina was certainly more publicized, two states, Arkansas and Tennessee, had already passed laws prohibiting localities from protecting all LGBTQ individuals from discrimination before HB2 was even on a legislative calendar. Conversely, even after HB2’s effective repeal, two more states have passed bathroom laws (Alabama and Oklahoma), while three more have tried (Arizona, Minnesota, and South Dakota). And that is just as of November 1, 2022.

We’re now seeing preemption being used against trans people, trans youth in particular, in teaching about gender identity, participation in sports, and even access to gender affirming healthcare.

Alabama, Arkansas, Florida, and Texas, in some form or another, restrict school curricula that could simply teach kids about the existence of trans people. There are 19 states that have passed laws restricting transgender student participation in sports, according to our research. Most alarmingly, Arkansas has passed a law with a sweeping set of preemptive provisions aimed at trans youth seeking gender affirming care: it prohibits the use of public funds for gender affirming care for anyone under 18, prohibits healthcare providers in local or state-owned healthcare facilities from providing gender affirming care, and prohibits insurance plans from covering gender affirming care — setting a dangerous precedent for the use of preemption to increase barriers to essential resources.

That is not to say that preemption is the only way anti-trans animus is enacted. Preemption has proven to be a convenient and impactful way for states to restrict localities for decades, but ultimately, it is but one tool in the regulatory arsenal and too often it is closely followed by more systematic prohibitions and even greater harms. With respect to the anti-trans laws and bills we have explored during our research; we have found legislating trans-antagonism to be a pinnacle case of just that. 

While a majority of laws restricting participation in sports for transgender athletes, prohibiting trans-related discussions in school, and defining sex-segregated spaces by sex assigned at birth all possess a preemptive mechanism, outside of the Arkansas affirmative care ban, only two (Arizona and Mississippi) of the seven additional states (Alabama, Florida, South Dakota, Tennessee, and Utah) that have passed laws ban affirmative care for minors have a preemptive mechanism in place. The laws in Arizona (signed in 2022, but not in effect until April 1, 2023) and Mississippi (signed and in effect February 28, 2023) follow Arkansas’ lead by prohibiting the use of public funds for any transition-related care but take prohibition a step further by banning doctors from providing affirmative care altogether. 

The breadth of these prohibitions is being extended farther than ever before. For instance, in South Dakota’s recently passed (signed February 13, 2023, effective July 1, 2023) youth affirmative care ban, one clause requires what amounts to the forced “detransition” of any trans child that might have already received some degree of affirmative treatment. Multiple bills are making their way through the Oklahoma legislature, some so severe that they (both explicitly and functionally) would ban gender affirming care for adults as well.

No matter how these laws function, it comes contrary to broad medical consensus. Medical organizations that establish standards of care for treatment nearly all agree that affirmative care is life-saving and necessary.

Trans youth in the United States are at greater risk than their cisgender peers to have depression and anxiety, and more likely than heterosexual, non-trans youth to report suicidal ideation and self-harm. For years, researchers have shown that perceived discrimination is a likely contributor to mental health challenges and distress among LGBT youth.

Skeptics of youth affirmative care often suggest they are not advocating for bans of any kind, rather their vocalized objections are meant to raise concerns about the implications of care down the road, or about the safety of this kind of care for young people. However, amplified and vitriolic discourse is certainly irresponsible.  Because it’s not just the laws with the rippling consequences for trans youth, it’s even the public discussion around the laws that’s proving to be problematic.

Trans-antagonism has become a nexus point for the political and ideological contestation that leaves our most vulnerable unsafe, unvalued, and unprotected. It’s true that politics sits downstream from culture, and given the order of things, the law is not far behind. The regulation of conduct happens in more ways than one, but when it manifests within the confines of law, even the most nuanced criteria are turned into a strict and unapologetic binary. Like many things, preemption is not inherently problematic, but it can become a weapon when used with malintent.

This blog first appeared on the Bill of Health blog from the Petrie-Flom Center at Harvard Law School.
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