Transgender Rights: A Year of Legislative Attacks

Listen and Subscribe

• 

  iTunes

• 

  Spotify

• 

  Stitcher

• 

  PlayerFM

Transcript

Alyssa Hurst:

You're listening to RadioEd.

Lorne Fultonberg:

A University of Denver podcast.

Nicole Militello:

We're your hosts, Nicole Militello.

Lorne Fultonberg:

Lorne Fultonberg.

Alyssa Hurst:

I'm Alyssa Hurst.

Alyssa Hurst:

June 1st marked the first day of pride month but it also set the latest in a spate of anti LGBTQ plus bills and specifically anti-trans bills. This one came out of Florida and it bans transgender girls and women from playing on sports teams that are consistent with their gender identity. 12 other similar bills have passed in states across the country and more than 110 others have been proposed making 2021 one of the worst years on record for anti-trans legislation according to the human rights campaign. In light of this we asked Carl Charles, a teaching fellow in the University of Denver, Sturm College of Law specializing in gender identity and the law and a staff attorney with Lambda Legal to share his perspective. He started by telling us the potential impact of Florida's bill and others like it on the trans community and particularly young people.

Carl Charles:

So we now live in an atmosphere where trans young people are watching state after state debate their existence, their right to participate in educational programs that cisgender children get to participate in, their right to access medical care, which other children have access to. They're watching their parents have to consider moving their family out of the state that they have lived in for their entire lives, leaving their jobs, leaving their friends, their communities, their churches, other parts of the community that they're involved in. That is a prolific harm, even if only one of these bills had passed I would be saying the same thing, it creates an atmosphere of exclusion and discrimination, and it presents for reasonable debate or consideration trans people's humanity.

Carl Charles:

I think Gov. DeSantis signing this bill on June 1st was a particular blow, Florida is a huge state. There are many trans young people, trans adults, trans people living across Florida and it sends a clear message that you're not welcome here, you're not welcome to participate equally as yourself in the things that other people have access to because we've decided that you're not worthy. You don't deserve these things.

Alyssa Hurst:

So shortly after the bill was signed, the Human Rights Campaign announced that they'd be suing to stop the law from going into effect. What legal route exists for the human rights campaign and do you think that they have a good case?

Carl Charles:

So this is a good question and I will share that HRC is not the only group who's looking to file a lawsuit. Lambda Legal is working with the ACLU and ACLU of Florida and Southern legal counsel to also see if we can work up a challenge to this law. As we told many people when these bills were being considered, this is a solution without a problem. This is a solution to a nonexistent problem and the reality is that we're talking about a real minority of people, trans adults are estimated to make up 1.4 million of the over 300 million adults living in the United States, that's like 0.5% of the population. Trans young people is an even smaller segment of that and trans young people who play high school sports is an even narrower slice of an already narrow slice. So it's not particularly surprising that trans young people don't necessarily feel particularly safe coming forward to challenge this kind of law, right because they're worried about their safety in schools, they're worried about retaliation and being targeted if they were to come forward.

Carl Charles:

I think there's certainly a path to challenge this. A law like this violates, we would argue, the equal protection rights of trans young people, the right to equal protection under the law. I think many of the legal advocacy groups would consider claims under title nine that this law is in direct violation to title nine, you're excluding on the basis of sex, young people from educational programs, that's exactly what title nine exists to prevent. We just heard from the Biden administration via announcement from the US department of education secretary, that there's going to be a statement forthcoming saying that title nine precludes discrimination against transgender students, in a variety of settings. So there are lots of legal avenues for us to challenge a law like this and it will just be a matter of when and how but rest assured there's definitely a path and those challenges will be forthcoming.

Alyssa Hurst:

Why is this even something that is being legislated? It seems unusual for young people's sports to be something that is finding its way into policy.

Carl Charles:

It is really peculiar. It is not a coincidence unfortunately, that trans young people have been targeted in the ways they have this year. Unfortunately, I think what we're seeing is a fear-mongering and a pandering to the base of the most conservative of the Republican party. Partially this is a 2.0 of the anti-trans bathroom bills from 2014/2015/2016 and a lot of that was rooted in the same kind of fear-mongering and stereotypes and misinformation about trans people. We've come an incredibly long way in terms of advocacy for trans people, trans young people and adults in just the last 20 years, just since the year 2000. We are still at the point where not enough people who think they know trans people in their life and so I'm comparing it to the movement for lesbian and gay people where a big crux of that movement was come out-come out, wherever you are.

Carl Charles:

Once more people living in the United States realize that they know someone who is gay or lesbian or bisexual, it will de-stigmatize that identity. I would say, unfortunately we're not quite there with trans folks and so there are still people who think that and believe the stereotypes and misinformation that's being promulgated by our opponents and so that's why it's really incumbent on us to keep telling trans people's stories to center trans people when we're pushing back against these things and to have our allies and our friends and our family talk about their connection to trans people to de-stigmatize and really take apart the fear-mongering and misinformation that's happening. I think what's really unfortunate is that trans young people are some of the most vulnerable in our community, obviously their children and adolescents and so they have unfortunately less articulated legal rights and are really dependent upon the adults around them to support them.

Carl Charles:

So it's particularly troubling that our opponents have taken aim at this particular group of our community. Folks are just really without a lot of power to fight back and they've done so under the guise and the red herring of protecting children. A lot of the bills are called vulnerable child protection act and many of these state legislators have admitted on record that they've never even spoken to a trans child or a trans adult or they're basically taking talking points from outside of their state and just sort of parading them as a way to represent to their party that they're taking a hard line on cultural issues and it's doing a lot of harm to children in reality.

Alyssa Hurst:

Florida is not the first state to do this, not even this year, it was the eighth in fact to enact this type of ban and the HRC is calling this the worst year in recent history for LGBTQ legislative attacks. So I'm curious if you agree with that assessment and why do you think we might be seeing these sorts of attacks right now?

Carl Charles:

I do agree with that assessment. It is by far the worst year in terms of the damage being done in state legislatures. We even saw more bills this year from 2014 to 2016 in the bathroom era, there weren't as many states pushing those bills forward. So I think as I mentioned to some degree it's a backlash, the former presidential administration did a great deal of harm at the federal level to trans people and to really undoing the work that the Obama administration did in advancing and protecting trans people in the United States. The former administration basically undid as much as they could have that and so I think in response to a new administration, the Biden and Harris administration coming in and so we're seeing states say, we're going to take our own course and our opponents, I will say, have been unfortunately pretty successful in convincing people that this is a palatable issue.

Carl Charles:

Back during the civil rights movement there were calls to protect women and that's why we needed segregated bathrooms and that's why we needed segregated lunch counters to protect white women and we're seeing a lot of those same calls when it comes to these sports fans in particular, it's protect girls, protect women. It's unfortunately a dog whistle that many people are responding to and it's largely people who don't understand trans people or our lives or what our experiences are like or how many of us there even are and unfortunately it keys into some of the longstanding gender stereotypes that are really pervasive in our culture and our society.

Alyssa Hurst:

Is there an easier legislative route through the states? Why are states really taking this up instead of letting the more conservative Supreme Court handle these things and what not?

Carl Charles:

I think those things are disconnected actually, it's certainly an easier route in states, especially in states where you have a majority held state government, you've got a Republican governor, you've got Republican Senate and house majority's and I think Arkansas is a good example of this. We even saw in Arkansas, the Republican governor vetoed the anti-trans youth health care bill that passed the legislature but because of a simple majority provision, the legislature was able to overturn the Republican governor’s veto. Even a Republican governor said, this is too extreme for Arkansas. I've talked to these children, I've talked to their families, this is going to harm them and also we're the party of small government, why are we inviting ourselves into private medical decisions that trans children and their parents are making? That's not where we belong.

Carl Charles:

The Republican legislature was able to overturn that veto because of provisions in governance because of regulations in that state. So I absolutely think that it's just a much easier route in state governments in many cases and I would just add very quickly that I don't think it's disconnected from the desire to rocket ship, some of these laws up to the Supreme Court for review. So our opponents know that we're going to challenge these, they know we're going to challenge the laws in federal court or that they will get removed to federal court and then once they're there, I think our opponents are really excited to try to get them up to a circuit court of appeals and then eventually up to the now quite conservative Supreme Court. So that's also something we're considering in our challenges as well.

Alyssa Hurst:

So you recently wrote about an Alabama law that would make it a felony for parents, teachers, doctors, therapists and others to aid young trans people in accessing gender affirming health care. So can you tell us a little bit more about that and the work that you're doing related to that?

Carl Charles:

HB1/SP10 was the first introduced anti-trans bill of the year and it was by far the most extreme, for the reasons you just articulated in your question. It would criminalize any person who counseled or referred a trans young person to access gender affirming care. The first amendment violations, first there are just so broad and there were criminal penalties attached to it, huge fines, licensure revocation for doctors and fines and criminal penalties like jail time. So we were working with the ACLU of Alabama, the ACLU LGBT and HIV project which is based in New York city and we were ready to go to court if that bill were to pass. So it was basically a watch and wait and in addition to that, the ACLU of Alabama and lots of trans people living in Alabama, trans adults and parents of trans children were lobbying state legislators every day until the last day of that session, which was May 17th. It was on the calendar and we thought they might get to it and eventually, fortunately they did not and that was a victory of nothing happening.

Alyssa Hurst:

So we've talked about healthcare, just now we've talked about sports, are there other areas where trans rights and LGBTQ rights are being targeted by legislation?

Carl Charles:

As I mentioned, we're still seeing some bathroom mills crop up, Tennessee passed three anti-trans bills this year, one about sports, one about health care and one about signage in businesses where if a business doesn't discriminate against trans people and lets trans folks use bathrooms that accord with their gender identity they have to post signage saying that they do so. It's a whole bizarre, new creative way to discriminate against trans people. So we haven't seen as many this legislative session, but we anticipate continuing to see this grow in number and interest, which is bills about religious freedom that constrain anti-discrimination laws in the States. So basically carve-outs that allow people to discriminate and use faith as the sort of window dressing, we're seeing that used as an excuse now. So I think we'll continue to see that in state legislatures, but we're certainly seeing it in other places as well. So that's another one to keep an eye out for.

Alyssa Hurst:

What about in the military because certainly that was an issue when Trump was first in office?

Carl Charles:

So fortunately one of the first things that the Biden Harrison administration did was reverse course on the anti-trans military ban. As you might know, right before the 2016 election and the Trump administration was inaugurated in early 2017, the Obama administration had just completed a year's long research and investigation into best practices and policies around trans people serving in the military and found that it was a non-issue. It was totally something that was happening and was able to be navigated with professionalism and respect and the policy was about to be rolled out right as the Trump administration was coming in. So that was a strange reverse course, unfortunately the Biden Harrison administration is returning to the policy that the Obama administration had spent a lot of money and time creating. So I think we're going to see slowly but surely the return to a well-researched, respectful and inclusive service for trans people in the military.

Alyssa Hurst:

So in 2015, the Supreme Court decision Obergefell V Hodges legalized same-sex marriage and I think for many that this was a turning point in terms of legal protections for members of the LGBTQ community. So what has the landscape looked like since then? Obviously we had Trump in office and is this year a turning point for the worst?

Carl Charles:

I think like many social movements, ours ebbs and flows. I think we make great gains, I like the one you mentioned in 2015 with Obergefell, we had another really significant gain last year in the Bostock v. Clayton County decisions. We didn't have a justice Coney Barrett yet, but we still had, may she rest in peace Justice Ginsburg, and that court in a decision written by justice Gorsuch, surprising many people ruled that Title Seven of the 1964 civil rights act, the provision that prevents discrimination on the basis of sex includes discrimination against trans people and LGB people. So that was another huge advent, that was an incredibly important decision that our colleagues over at the ACLU LGBT and HIV Project represented Ms. Amy Stevens, a trans woman who was fired when she came out to her employer. She was a funeral director for many years and loved her job and didn't want to leave it, but also could not abide not being her true self.

Carl Charles:

That decision was a really incredibly important one and it will ripple, it's still rippling throughout our cases. So back to my point, our movement ebbs and flows, we've got that huge victory in 2015 of Obergefell, we got a huge victory in Bostock last year, but now as we've discussed, we're seeing the worst year legislatively for trans people that we ever have. So things really move in a sort of ebb and flow kind of way, so I think we will continue to have turning points and then we will continue to see backlashes. Our movement isn't over because of good decisions or because of bad decisions, or because of really bad legislative years or really good legislative years. I think like many people fighting for justice and their humanity and the humanity of others it's just an ongoing fight, our opponents don't quit and we can't either. So I think that's hopefully a practical view or I should say that's my practical view on our fights.

Alyssa Hurst:

So I'd love to talk about the Supreme Court a little bit more and just kind of the role that the Supreme Court plays in this movement, how important is the Supreme Court?

Carl Charles:

As a lawyer, I do care about the Supreme Court, but I don't want to overstate the importance. I think all of the branches of government are really significant in acknowledging and protecting the rights of LGBTQ plus people. We see that through the executive branch, the department of justice and the other agencies that sort of roll out inclusive policies that trickle down vis-á-vis dollars to support services for people living with HIV, to ensuring that trans people can get meaningful access to medical care. All of these things really matter right from the executive branch to the Supreme Court and then also Congress, even though it moves slowly and sometimes not as efficiently as many of us would like also plays a big role.

Carl Charles:

Right now the house has passed for a second time the equality act and we're trying to move it in the Senate and that act would be really significant in shoring up federal protections for LGBTQ plus people across the United States. That would provide protections in the states where it's really hard with Republican control legislatures and houses of governorship to pass any kind of anti-discrimination law or any kind of other legislative state protection. So all of those branches are really important, I think it can be easy to lose sight of how much those things matter and it can be easy to overstate the significance of a more conservative Supreme Court.

Carl Charles:

Our movement has existed through many iterations of the Supreme Court, right from the very conservative during the Reagan years, through slightly more liberal both in history and then in our recent past and no matter what the Supreme Court looks like, we will keep fighting for LGBTQ plus folks at every stage of their life, as young people, as adults, as seniors, especially at Lambda Legal, we've been around since the early seventies and have seen things change dramatically and experienced huge setbacks.

Carl Charles:

I think we as a community are incredibly resilient in that even in the worst of times and I would think about the days of the plague and the HIV epidemic, things seemed really dire then, and they were really dire, but people were, in our community, committed to one another. Our friends and allies and accomplices were committed to us and we just have to remember that we come from resilience, no matter what the forces outside of us that have more power than us always seek to do, we stay connected and invested in one another and I think we've really seen that over the last couple of years in particular.

Alyssa Hurst:

Well, that is a wonderful note to end on, but I have another question. We often talk about the LGBTQ community as one monolithic group, but it certainly isn't, so how does the diversity within this group factor into the legal conversation right now?

Carl Charles:

That's a great point and one that I think many of us in the advocacy community are thinking really deeply about. I'll just use Lambda Legal as an example, we went from representing no trans people or representing one very prominent trans person in the year 2000 Brandon Tina, who was the subject of a movie adaptation called, Boys Don't Cry. We represented his estate in a wrongful death suit in the year 200 and now fast forward to 2021, more than half our docket is focused on the rights of trans people. So the LGBTQ community is definitely not a monolith and the needs of our community are diverse and I think within that it's incumbent upon us to continue to uplift those in our community who are at the intersection of multiple marginalized identities in particular trans folks of color, trans women of color, particularly black trans women, particularly undocumented trans woman.

Carl Charles:

Those folks oftentimes are experiencing the most targeted harm to their existence. I think we in our work have to be really intentional about the choices we're making about the cases we're taking on and about who stands to benefit and how that will affect their material lived reality. That's not to say that the needs of lesbian folks or gay or bisexual folks or queer or nonbinary people aren't just as important or are something that we think about and work on and challenge. As you mentioned, the people being really targeted right now are trans people and that, again, can't be understated and so I think when folks are targeted in really significant ways, we have to leverage our resources and our talent and our fundraising to focus on those folks and making sure that we're protecting them.

Alyssa Hurst:

Well, as I mentioned, those are all the questions that I have for you, but is there anything that we haven't talked about yet that you really want to make sure to hit home or really want to reiterate?

Carl Charles:

I just want to say and I think I've touched on this a little bit, but I want to say that even though this has been the worst year, I think legislatively, in terms of attacks on trans people and young trans people in particular. I continue to be really encouraged and felt a great deal of resolve and commitment by watching and listening to and reading about trans people and the parents of trans children in the states where these bills have passed. So in Arkansas and in states where the bills nearly passed in Alabama and Tennessee and West Virginia and now in Florida, the everyday trans people in the states and in the cities who have gone and knocked on doors and set up appointments and talk to their legislators, people who say vile hateful things to their face or later on in committee meetings, those folks are the ones who are making the biggest difference.

Carl Charles:

Who are going out and taking on these fights in their communities with people who are their neighbors and changing hearts and minds. As hard as it's been those folks really give me a great deal of inspiration and dare I say hope, but those are the people who will move the needle for us. We do our part, we are challenging these laws in court, we're doing our part for sure but I just really want to uplift the young trans people and their families and the trans adults who are speaking up every day in their communities and fighting back against these bills, even after they passed.

Alyssa Hurst:

To learn more about Carl Charles and the cases he's tackled at Lambda Legal, visit our show notes at du.edu/radioed. Tamara Chapman is our managing editor, James Swearingen arranged our theme, I'm Alyssa Hurst, today's host and executive producer. This is RadioEd.