By Daniel Choma, Tara Kalar, Ellen J. Kennedy, and Caitlin Schweiger
Across the U.S., the past year’s state legislative sessions have brought forth an unprecedented amount of legislation addressing transgender rights, most of the bills seemingly in response to recent strides made for transgender people in both state and federal courts. Transgender athlete ban bills have been brought and hastily passed, influenced by special interests and with the ostensible purpose of protecting women. This is playing out in the Minnesota Legislature, too.
Bills presented throughout the country during this 2021 legislative session concerning transgender people included language that would criminalize life-saving health care, prohibit transgender girls from participating on girls’ sports teams, prohibit mention of LGBT issues in curriculum in public schools, and refuse various services to LGBT people based on religious beliefs. Compared to past years’ legislation, bills addressing transgender issues are at an all-time high.
Given the small share of the population that is transgender, it is important to consider the extent of the laws affecting transgender people that will go into effect as a result of the 2021 legislative session. Following legislative action in Idaho, South Dakota, and Florida in 2020, Mississippi, Arkansas, Tennessee, West Virginia, and Alabama passed bills prohibiting transgender girls from participating on girls’ sports teams, and similar bills were considered in Ohio, Oklahoma, Montana, and Missouri.1 Louisiana’s governor vetoed a bill to ban transgender girls from female sports, a veto subsequently challenged and nearly overridden by the Legislature in a rare special session devoted to that purpose. In total, 30 states passed or considered bills restricting trans girls’ participation in high school girls’ sports.
Idaho was the first state to pass a law prohibiting trans girls from playing high school sports. Idaho’s law specifies that athletic teams “designated for females, women, or girls shall not be open to students of the male sex.”2 The law resolves disputes over gender identity by reference to “the student’s internal and external reproductive anatomy; the student’s normal endogenously produced levels of testosterone; and an analysis of the student’s genetic makeup.”3 Medical experts agree that gender should be understood in terms of gender identity, that is, the personal conception of oneself as male or female, rather than anatomical sex.4 Ultimately, a U.S. District Court judge issued an injunction preventing the law from taking effect, stating, “The State has not identified a legitimate interest served by the Act that the preexisting rules in Idaho did not already address, other than an invalid interest of excluding transgender women and girls from women’s sports entirely, regardless of their physiological characteristics.“5 The case is currently before the 9th Circuit Court of Appeals.
Arkansas became the first state to prohibit gender-affirming care despite strong opposition from the American Academy of Pediatrics and a veto from the governor.6 The law will subject transgender children in that state—against the recommendation of medical professionals—to irreversible dysphoric pain caused by undergoing the wrong puberty.7 Studies support that when transgender youth receive gender-affirming care, the risk of suicide decreases by about 70 percent.8 A judge in Arkansas granted a temporary injunction blocking the law from taking effect.
Texas considered a similar bill banning gender-affirming care, making it punishable by jail time or termination of parental rights for parents who are supportive of their transgender children. Tennessee passed a law requiring government buildings or businesses that are open to the public to post signs if they allow use of the facilities by gender identity rather than anatomy.
These bills are led, in part, by national advocacy groups on the far right, including the Alliance Defending Freedom (ADF)9, which has been labeled as a hate group by the Southern Poverty Law Center (SPLC).10 According to the SPLC, “The Alliance Defending Freedom is a legal advocacy and training group that has supported the recriminalization of sexual acts between consenting LGBTQ adults in the U.S. and criminalization abroad; has defended state-sanctioned sterilization of trans people abroad; has contended that LGBTQ people are more likely to engage in pedophilia; and claims that a ‘homosexual agenda’ will destroy Christianity and society. ADF also works to develop ‘religious liberty’ legislation and case law that will allow the denial of goods and services to LGBTQ people on the basis of religion.”
The ADF has made no secret of its objectives; in 2003 the ADF filed briefs in Lawrence v. Texas arguing for criminalizing gay sex through sodomy laws.11 In contrast, a whole contingent of amici argued that anti-sodomy laws reinforce prejudice, discrimination, and violence against LGBT people.12 In recent years, the ADF has pivoted to advancing legislation restricting transgender people’s access to bathrooms, including an unsuccessful effort in Minnesota.13
More than 90 U.S. corporations (including Facebook, Pfizer, Altria, Peloton, Dell, Amazon, American Airlines, Apple, AT&T, AirBnB, Google, Hilton, IBM, Microsoft, Nike, Paypal, Uber, and Verizon) have opposed legislation limiting rights for LGBT people.
Minnesota legislation
Defining gender
Several bills addressing the rights of LGBTQ people in Minnesota were drafted and considered in the 2021 legislative session. Rep. Eric Lucero (R-Dayton) drafted three bills to regulate and criminalize a minor’s participation in public school sporting events based upon sex. HF1657 would add a new definition of “sex” specific to Minn. Stat. §121A.04’s provisions for equal opportunity in K-12 sporting events. Under the proposed new standard, sex would be defined by chromosomal make-up instead of the categorization listed on a birth certificate. The bill would criminalize children’s non-compliance with this definition of sex.14 Children who try out for a team while having a non-compliant chromosome as so defined would be found guilty of a petty misdemeanor, and children who utilize a locker room outside of their chromosomal makeup would be subject to misdemeanor charges and potential jail time. This was the only bill proposed in any U.S. state legislature with criminal penalties associated with a child’s genetic make-up in school-sponsored sports.
Upon introduction, human rights groups labeled the bill “unconscionable under the Minnesota Constitution” and “one of the most extreme political attacks on trans youth… ever seen.”15 Erin May Quade of Gender Justice noted that suspected students may be subject to genetic testing. Since sex on a birth certificate is based upon a doctor’s visual inspection rather than any genetic measurement, the bill’s opponents argued that the bill requires invasive genetic testing merely upon accusation of being a transgender or gender non-binary athlete participating in children’s sports.
HF1657 was proposed along with HF350 and HF352, which would limit participation of children to teams of the same sex according to the above-proposed standard. HF1657 was sent to the Education Policy Committee, where it did not receive a hearing and progressed no further.
Many of the bills proposed across the country share language with the Idaho legislation currently under injunction. Opponents of these bills to limit transgender access to activities, health care, etc., describe them as model bills designed for political theater.16 Idaho newspaper reporters asked the Senate sponsor of the Idaho bill, Sen. Mary Souza, if she was worried that the bill was unconstitutional on its face. The newspaper reported that the Alliance Defending Freedom helped draft the bill and promised to pay for all legal fees relating to litigating the bill’s constitutionality.17
When pressed by media, lawmakers are largely unable to present any local support necessitating these bills.18 Rather, local school districts and state organizations have opposed bills like HF1657. The Ohio High School Athletic Association (OHSAA) noted that schools already have a robust community-drafted policy and do not support the proposed bill, which they describe as “not based on sound medical knowledge/scientific validity.”19 School administrators across the country worry that bills that they did not draft will become law and prevent national sporting organizations from choosing communities in their state for future events, with negative economic consequences.20 As Missouri Republican Shamed Dogan said, “A lot is riding on this in terms of our state’s reputation… across the country.”21
Bills such as HF1657 would prevent transgender teenagers from participation in pro-social events such as high school sports.22 Participants in sports often show better mental health and self-esteem than non-participants. Bills preventing transgender youths’ sports participation have led to a decline in the mental health of trans teens, who are already at a higher risk for decreased mental health. Regardless of the intent of bills limiting transgender youths’ access to sports and to health care, the result is clear: After the passage of an Arkansas bill limiting health care options for transgender minors, there was a significant increase in suicide attempts by trans teens living in Arkansas.
The proposed legislation also creates an environment of gender policing that is harmful to all girls, including intersex girls and girls who do not conform to stereotypical ideals of gender. HF1657 did not specify who would be tasked with determining gender, leaving the assumption that school officials would be the arbiter of gender in school sports.
‘Gay and trans panic defense’
In an effort to eliminate legal discrimination against LGBTQ people, Rep. Athena Hollins (DFL-St. Paul) and Sen. Scott Dibble (DFL-Minneapolis) drafted bills in the House and Senate to ban the ‘gay and trans panic defense.’23
Hollins says of the effort, “I was horrified to learn that the defense was still permitted in Minnesota, so in 2021, I introduced legislation to ban the gay/trans panic defense in our state.”
HF1648 and SF1512 would ban the ‘gay and trans panic defense’ and modify Minn. Stat. §609.06’s provisions on acceptable use of deadly force to clarify that the use of such force is not justified as “a reaction to victim’s sexual orientation.”24 The bills further clarify that a victim’s sexual orientation could not be used as a defense, but rather to determine the perpetrator’s state of mind similar to the manner in which Minnesota statutes address voluntary intoxication (Minn. Stat. §609.075).25 Finally, the bills would clarify that a victim’s sexual orientation cannot be considered provocation for the purpose of establishing a “heat of passion” murder defense pursuant to Minn. Stat. §609.20.105Id.26 The American Psychiatric Association ceased recognizing the validity of a “gay panic disorder” in 1973, but the defense remains available to defense attorneys in Minnesota today.27
HF1648 and SF1512 support and would implement the ABA’s House of Delegates Resolution 113A, resolving that federal, state, local, and territorial governments “curtail the availability and effectiveness of the ‘gay panic’ and ‘trans panic’ defense...”28 The proposed Minnesota bans follow the ABA’s recommendation that discovery of a person’s gender identity should not be considered legally adequate provocation to establish a “heat of passion” defense.29 HF1648 was sent to the Public Safety and Criminal Justice Reform Finance and Policy Committee, where it had two readings but did not advance from committee. Hollins has said she will continue to “push for an end to this barbaric and cruel legal tactic. Nobody deserves to be hurt or injured for simply being themselves.”
Conversion therapy
Bills to ban conversion therapy, that is, therapy to “convert” someone away from an LGBTQ identity, included HF12, SF80, and SF1374. HF21 also specifies that conversion therapy would not be covered by medical assistance and would ban advertising or promotional materials that indicate homosexuality is a disease, mental disorder, or illness, or that guarantee change in orientation. None of these bills advanced from committee. At present, conversion therapy is banned in 20 states and many municipalities, including Minneapolis and Duluth.30
Court decisions and transgender rights
Proposed legislation limiting opportunities and access of transgender people conflicts with the sentiment expressed by the courts that have upheld rights for transgender people. In June 2021, the Supreme Court declined to review a decision of the 4th Circuit Court of Appeals, which held that a Virginia school district violated Title IX by instituting a policy prohibiting any student “with gender identity issues” from using the restroom consistent with their gender identity.31
In 2020, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because they are gay or transgender.32 In Minnesota, the Minnesota Court of Appeals held in 2020 that it is a violation of both the Minnesota Human Rights Act and the Minnesota Constitution for school districts to segregate transgender students from their peers in locker room facilities.33
The Supreme Court in the summer of 2021 declined to hear Grimm v. Gloucester County School Board, letting stand a 4th Circuit decision that ruled that the school board violated Title IX by prohibiting a transgender student from using a restroom that aligned with his gender identity. Gloucester School Board v. Grimm, 972 F.3d 586 (4th Cir. 2020), cert. denied, __S.Ct.__(2021).
Conclusion
The struggles of transgender people are among many global, national, and state efforts to address self-determination and equality by various groups, not only those in the broader LGBTQ communities but by racial, religious, ethnic, and national minorities as well. The UN Basic Principles on the Role of Lawyers, adopted in 1980, states, “Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law.”34 Former UN Secretary-General Ban Ki-moon said, “Let there be no confusion: Where there is tension between cultural attitudes and universal human rights, rights must carry the day. Personal disapproval, even society’s disapproval, is no excuse to arrest, detain, imprison, harass or torture anyone—ever.”35 The wave of anti-trans legislation circulating in legislatures throughout the United States threatens human rights protections for transgender individuals, implies acceptance of discrimination, and results in degradation of rights for all protected classes.
DANIEL CHOMA is a 2L at Mitchell Hamline School of Law. Prior to law school, he spent his time as a musician, artist, and community organizer. His interests in law are in human rights, equal protections, and community development. He lives with his wife Tessa in St. Paul in a small house with a big garden. DACHOMA@GMAIL.COM
CAITLIN SCHWEIGER is a graduate of Mitchell Hamline School of Law and a public defender in the third district. She formerly clerked for the Honorable Christian Sande in Hennepin County. She is a recipient of the 2021 Benjamin B. Ferencz Fellowship in Human Rights and Law. She continues to advocate for human rights issues locally and internationally. CAITLINSCHWEIGER@GMAIL.COM
ELLEN J. KENNEDY is the founder and executive director of World Without Genocide, a human rights organization located at Mitchell Hamline School of Law, where she is also an adjunct professor. She has received many awards for her work, including the Outstanding Citizen award from the Anne Frank Center in New York. EJKENNEDY@WORLDWITHOUTGENOCIDE.ORG
TARA KALAR is a government attorney. She has dedicated her pro bono practice to human rights issues in Minnesota. She is an adjunct professor at Mitchell Hamline School of Law and in her spare time she coaches the Southwest High School mock trial team. TARA.KALAR@MITCHELLHAMLINE.EDU