Biden White House Is Preparing to Confront States on Anti-Trans Bills
The Human Rights Campaign says the White House is preparing to directly confront the flood of anti-trans and LGBTQ legislation. The Department of Justice may also join the fight.
The Biden administration is preparing to directly confront the rash of anti-LGBT, and specifically anti-trans bills proliferating in state legislatures, according to the Human Rights Campaign (HRC), the country’s leading LGBTQ advocacy organization.
Separately, the Department of Justice has told The Daily Beast it will “fully enforce our civil rights statutes to protect transgender individuals,” giving hope to campaigners that the DOJ is preparing to challenge in the courts the legality of bills that have been introduced—and some passed—in a number of states, outlawing transgender youth’s access to health care and sports.
The White House’s move and DOJ declaration follow President Biden’s address to the joint session of Congress last week, in which he said that he hoped “Congress can get to my desk the Equality Act to protect LGBTQ Americans. To all transgender Americans watching at home, especially young people who are so brave, I want you to know your President has your back.”
Biden’s words were warmly welcomed by campaigners as a stirring statement of support, although they also attracted criticism for not mentioning the multiple legislative attacks on trans youth, and what having their “back” meant in practical terms at such a critical moment.
As Kai Shappley, a Texas trans fourth-grader, who eloquently testified in the state Senate, put it in a tweet: “I’m very thankful for this. But, what does having my back mean? Like, if the bills pass in Texas will you keep them from putting my mom in jail?” (Shappley was referring to SB 1646, one of many anti-trans bills being considered in Texas.) Chase Strangio, deputy director for transgender justice at the American Civil Liberties Union’s LGBT & HIV Project, said in another tweet: “I guess I appreciate the platitudes. But we need action. Things are desperate.”
At the time of writing, 253 anti-LGBTQ bills have been introduced in the current legislative session. 124 of the bills are anti-trans, including 66 focused on playing sports, 33 focused on access to healthcare, and 14 focused bathroom and locker room access. Alabama, Arkansas, Tennessee, Mississippi, West Virginia, and South Dakota have introduced bans on trans girls playing school sports. Arkansas has enshrined a ban on gender-affirming health care.
Many other bills are on governors’ desks awaiting signatures, or being debated in state legislatures. According to a recent GLAAD survey focused on the first 100 days of Biden’s presidency, 77 per cent of LGBTQ Americans say the bills make them “feel unsafe in their own community.”
HRC President Alphonso David told The Daily Beast: “We are having conversations with the Biden administration about additional actions that they should be taking as it relates to anti-LGBTQ bills that we’re seeing in these states. But we want to make sure we don’t lose sight of how important those words are, and how important his early actions have been to support and protect LGBTQ people throughout the country.”
This reporter asked David if HRC would like Biden and his administration to directly, and publicly, challenge the anti-LGBTQ and anti-trans laws being debated and passed.
“The short answer is ‘Yes,’ and based on my conversations with the administration I believe they will be doing that,” David told The Daily Beast.
White House Press Secretary Jen Psaki has previously emphasized that Biden “believes trans rights are human rights and that no one should be discriminated on the basis of sex... Not only is this the law of the land, it’s his own deeply held belief.” The number and pace of the anti-trans bills has led many to call for the administration to make its support more pro-active.
“At a time when anti-trans legislation aimed at harming trans youth is moving through statehouses at an alarming rate, President Biden’s words are welcomed, but don’t go far enough,” Kris Hayashi, Executive Director of Transgender Law Center, told The Daily Beast. “To truly have our backs, the administration must take action against states enacting these laws, immediately end the detention of trans people, and address the police killings of Black people and the crisis of violence Black trans women face in this nation.”
Alphonso David would not reveal the detail of the conversations HRC was having with the Biden administration, “except to say we are exploring variety of ways where the administration could be even more active. Federal agencies interpret federal law. And I believe in many cases, the bills being passed in many states across the country violate federal law, including the constitution.
“So, there are options and actions that have yet to be taken that we are engaging with the Biden administration on as they explore different ways where they can be even more impactful. We can anticipate more actions from the Biden administration as related to these bills. I think more needs to be done, and we are engaging with them to do more. I believe that the administration is going be taking additional steps and additional actions that will further clarify their position as it relates to the anti-LGBTQ bills that we’re seeing in the states. I can’t tell you what form that will take.”
Biden had hoped to pass the Equality Act within the first 100 days of his presidency. It needs 60 votes to pass in the Senate, and Republican senators have thus far not shown much sign of supporting it. (Democrat Senator Joe Manchin’s support isn’t assured either.)
Equality campaigners have welcomed Biden’s many pro-equality actions since winning the presidency, as detailed by American Progress. For example, there have been executive orders to lift the Trump-era trans military ban, and another directing federal agencies to fully implement the “Bostock” ruling at the Supreme Court last year which ensured sexual orientation and gender identity were included under the umbrella of sex discrimination as laid out in the 1964 Civil Rights Act.
The Department of Justice has also clarified that Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of gender identity and sexual orientation in federally-funded education institutions. The Department of Justice recently cited the Eighth Amendment of the US Constitution in the case of an incarcerated trans woman, writing that it “requires prison officials to conduct individualized assessments that lead to reasonably safe conditions of confinement and adequate medical care for all prisoners.”
Alongside these actions, there has been a relentless legislative assault on the rights of trans youth, with Republican politicians at a local and national level using issues such as trans rights as part of what of a broader culture war, which they see as galvanizing their voter base in the 2022 midterm elections.
However, a recent PBS NewsHour/NPR/Marist poll found that 66 per cent of Americans—including 70 per cent of Republicans—opposed legislation that prohibited gender transition-related medical care for minors. Last night in Kansas, Republicans failed to overturn Democratic governor Laura Kelly’s veto of that state’s ban on trans girls playing school sports. Trans youth in Arkansas and North Carolina recently spoke powerfully and movingly to The Daily Beast about living in those states at this time.
Alphonso David said that where the Trump administration had “broken every rule, regulation, and constitutional principle known to man, we have to make sure as we are confronting anti-equality extremists we don’t violate our own principles. We have to adhere to the rule of law and constitution, but at the same time make sure the states are not violating those principles. I think that is what the Biden administration is evaluating as they go through the next phase of the determining actions they take.”
Despite detailed questions sent by The Daily Beast, the White House would not comment on what it specifically planned to do or say around the anti-LGBTQ/trans bills, and the vexed progress of the Equality Act—and whether the president planned to speak to state governors and Republican senators direct.
Instead, in a statement, Reggie Greer, director of priority placement and senior adviser on LGBTQ+ engagement, told The Daily Beast: “Protecting LGBTQ+ Americans, especially transgender and non-binary people, from discrimination remains a key priority for President Biden. From day one, the President has built a whole-of-government approach to advancing LGBTQ+ rights, which has led to a number of executive actions that restore or strengthen protections for LGBTQ+ people. Policies that discriminate against LGBTQ+ people are inconsistent with the values of this administration, which is why the President continues to urge the Senate to pass the Equality Act.”
The Equality Act would amend the 1964 Civil Rights Act to prevent discrimination based on sexual orientation and gender identity. If passed, it would set into a specific law around sexual orientation and gender identity the principle of the ruling in the landmark Bostock case at the Supreme Court last year, in which the definition of sex discrimination was extended to include discrimination suffered by LGBTQ Americans.
The protections in the act apply to employment, housing, credit, education, public spaces and services, federally funded programs, and jury service. The act would prohibit discrimination in public spaces and services and federally funded programs on the basis of sex. The act would also, according to the Human Rights Campaign, “update the public spaces and services covered in current law to include retail stores, services such as banks and legal services, and transportation services.”
The GLAAD survey found that 78 per cent of LGBTQ Americans are concerned that Republicans can use the filibuster to block Democrats from passing progressive policies, like the Equality Act.
Campaigners hope the Department of Justice will follow the example of then-Attorney General Loretta Lynch who in 2016 announced the DOJ was suing North Carolina over its infamous “bathroom bill,” HB2, which stipulated that people working for state-run organizations used bathrooms corresponding to the gender listed on their birth certificate. Lynch called it “state-sanctioned discrimination.” In 2016, Vanita Gupta—then deputy assistant attorney general, and now the newly appointed associate attorney general—said, “Calling HB2 a bathroom bill trivializes what this is really about. HB2 translates into discrimination in the real world.”
Carl Charles, a staff attorney with advocacy group Lambda Legal based in their southern regional office in Atlanta, told The Daily Beast that Biden’s words “were not nothing, they were clearly historic and meaningful and no one is disputing that.” However, it reminded Charles of Lynch speaking in 2016, announcing the legal challenge to HB2.
Charles has framed her words from that day, “because it’s so meaningful to me as a trans attorney and also a trans person. She said, ‘Let me also speak directly to the transgender community itself. Some of you have lived freely for decades, and others of you are wondering how you can possibly lead the lives you were born to lead. But no matter how isolated, no matter how afraid, and no matter how alone you might feel today know this—that the Department of Justice and indeed the entire Obama administration wants you to know, we see you, we stand with you, and we will do everything we can to protect you going forward and please know that history is on your side.’
“Now, ‘We have your back’ is a far cry from the passage I have just read to you,” said Charles. “Notably, we would really like to see a lot of follow-up from President Biden. And for those of us who have been spending basically countless sleepless nights since the start of the state legislative sessions it was a little underwhelming compared to this Department of Justice response from five years ago.”
Charles would like the DOJ to soon signal it is getting involved in these cases, gathering statements of interest, and launching affirmative lawsuits. “That’s the power of the federal government—to intervene when states do things that harm an already vulnerable and relatively politically powerless group of people. Without actions it’s just words. However meaningful they might be, you can’t change someone’s material reality just based on words. There have to be actions that follow.”
What particularly disappointed Charles was for Biden to “not really acknowledge what is happening. ‘We have your back’—about what? What prompted Biden to say that? If we are not naming the harm in the context of saying ‘We support you,’ I don’t think words do the service that maybe the president and the Biden-Harris administration hoped.”
Charles said the DOJ has the ability to file affirmative lawsuits “when states engage in unconstitutional behavior, and what we are seeing is a true onslaught of attacks against transgender youth in particular. We haven’t seen such a lawsuit yet. I understand people are still getting settled into their jobs, and (attorney general) Merrick Garland has a full plate, but we really have not heard a ton from them. Lynch acknowledged what people were feeling and what is happening right now.”
GLAAD would also “encourage” the DOJ to pursue legal actions against the states passing anti-LGBTQ bills, Zeke Stokes, a former chief programs officer and now adviser to the advocacy group, said. “And we are confident that is going to happen.”
A spokesperson for the Department of Justice would not be drawn on what specific actions the DoJ will take around the anti-LGBTQ legislation in state legislatures, but told The Daily Beast in a statement: “The Department of Justice intends to fully enforce our civil rights statutes to protect transgender individuals.”
“I’m hopeful, but it feels like lip service at this point. Come on, it’s now or never!”
“Any good advocate says, ‘Thank you. And?’ That’s my response to those words,” Sam Brinton, vice president of advocacy and government affairs at LGBTQ youth advocacy group Trevor Project, told The Daily Beast. “It is powerful as a life-saving opportunity to use the pulpit of the presidency to tell trans youth you have their backs. We know trans youth want to see themselves represented and see themselves supported, so there’s that very important aspect. And then there’s, ‘What are we doing to make sure those words are enacted?’”
Amber Briggle, the mother of a trans son in Texas who has written in The Daily Beast about facing bigoted lawmakers and those who wish her family harm, feels the Biden administration is falling flat.
“I know he’s an ally, and I am expecting more kindness, compassion, and action out of the Biden administration than I ever did out of the Trump administration,” Briggle told The Daily Beast. “I know there are a lot of things to fix in this country, and at the same time we are seeing all these bills against trans children. This is happening now to these kids. Kids are feeling suicidal because they’re scared.
“So, I’m hopeful, but it feels like lip service at this point. Come on, it’s now or never! I want to see the Equality Act passed, and the DOJ sue states like Texas and Tennessee. In a nutshell, I’d say, ‘Thank you Mr. President, but this doesn’t go far enough.’ Instead of having our backs, I want him to get out front and turn this around. Trans children are actively hurting, not just with the passing of bills, but even with the rhetoric around them. They’re feeling really defeated and scared.”
In one sense, this is a familiar political debate around when fine rhetoric meets the need for action. It is also a test for an administration dedicated to fighting for LGBTQ equality, yet aware of right-wing conservatives eager to scream “culture war.”
“In the context of history the speech was incredibly important,” Zeke Stokes told The Daily Beast. “It was the first time the word ‘transgender’ had been used by any president to a joint session of Congress. But when you compare it to the last president, who put targets on trans people’s backs, it’s even more important. To hear a president stand up say those words makes a huge difference. It can be a lifesaving affirmation for a kid. I wouldn’t minimize it at all. Our expectation is that he will follow through with it with action.”
“As we look at this and other issues, we have to appreciate that words and actions matter,” said Alphonso David. “We went through the past four years of the Trump administration advancing dangerous rhetoric which perpetuated stigma against transgender people. Those words mattered and they had an impact, influencing public discourse and affecting how LGBTQ people are treated in this country. Having said that I also think I also think actions are important, and President Biden has already taken significant steps to ensure transgender people are protected under federal law.”
“It is not just the bills,” said Carl Charles. “It is the heinous and unscientific opinions masquerading as reasoned thought. It is the atmosphere that has now percolated into the general public, meaning it is acceptable to debate the existence of trans youth, and to ponder and opine, as a lay person, about what medical care is appropriate for someone other than say their doctor or the informed consent of parents. This is just absurd.”
While there had been a huge and game-changing corporate pushback to the passage of North Carolina’s “bathroom ban” in 2016/17, Stokes said, this time around while businesses have spoken out against the anti-trans and LGBTQ bills, “we have not seen them spell out to the states what the practical consequences from a business perspective of their actions might be.”
There does not seem to the groundswell of vigorous corporate support for trans people as there was over the bathroom bills of yore.
Alphonso David puts some of that down to the pressures of the pandemic, but also a level of ignorance about what the bills entail. A recent ad HRC placed in the New York Times brought more corporate support their way, “but we need to amplify that these bills mean trans people not being able to access the medical care they need. They may mean families having to leave their homes or jobs to protect their families. They may result in an increase in depression, anxiety, and suicide ideation among trans and non-binary people. We need to make people understand when one population is oppressed it affects all of us.”
Companies may be saying positive words about inclusion, but they are not presently promising punitive action against states over anti-trans discrimination. Despite lobbying by the HRC, the NCAA will not commit to withdrawing tournaments from states where discriminatory legislation is being considered. Right wing media’s penchant for whipping up culture war controversies may mean corporate leaders have become nervous about weighing in on social justice issues, but “that fear is misguided,” said David. “You can’t decide to articulate a series of values in your corporate manual or website and not live up to those values. You have to live up to your values, otherwise it’s meaningless. You as a corporate leader have a responsibility to weigh in on some of those issues.”
Carl Charles points to the flurry, then evaporation of the “bathroom bills” of a few years ago (even though such bills have staged a return in the tranche of anti-LGBTQ bill-making of now). The whipping up of prejudice was, Charles thinks, curtailed by the federal government’s firm response back then to HB2, the pro-equality response of big business, “and people in those states saying ‘This is not we want.’”
“Stop these bills. Leave trans youth alone.”
Charles paid emotional tribute to the trans youth, their families, allies, and advocacy groups fighting the present deluge of bills on the ground. “Those people have showed up to change hearts and minds, and persuade legislators.”
He pointed to the example of Arkansas Governor Asa Hutchinson, who while passing anti-trans legislation, tried to veto one of the bills—only to have that veto overridden. “Listening to him talk made me realize he had sat down with young trans people and their families, and listened to them about the harm this would do to them. He would never have come to those conclusions were it not for everyday folks. Trans folks living in these communities little are making their voices heard. They spoke up. The work we do at Lambda Legal and other organizations is not in a vacuum. It is made possible by people trying to lead their lives, take care of their families, and carve out a little bit of happiness. They are fighting so hard every day.”
The GLAAD survey found that 38 per cent of LGBTQ respondents would not spend tourist dollars in the states where anti-trans legislation is passed; the same percentage would do what they could to ensure the defeat of anti-equality politicians. Twenty-eight per cent would not buy products from companies headquartered in those states. (It is not known if the remaining percentages believe the opposite or differently.)
GLAAD adviser Stokes thinks the LGBTQ community is divided on the wisdom of state boycotts. “There is a sense that state legislatures will introduce these laws, the courts will undo them, and the Biden administration is standing in the doorway to some extent and will save the day. But that is not realistic. Biden has no control over what state legislatures do, and when you punish states for this kind of action you’re punishing the LGBTQ people living in those states alongside everyone else. I think the community is very split on whether state boycotts are a good idea.”
Brinton said it was important to recognize that Republican governors like Hutchinson had recognized that the bills were “coming between parent, child, and professional.” All major medical organizations like the American Psychological Association had come out against the bills, said Brinton, to say, “Stop these bills. Leave trans youth alone. Let them have affirmative spaces. If I could talk to legislators, I would tell them trans youth are scared and anxious and worried about these bills. They just want live happy, productive lives. I believe legislators want the same for all citizens. These bills create the opposite of that space for trans youth.”
Fighting the bills is important, said Brinton, but should not obscure other urgent issues. The Trevor Project is focused on ensuring that conversion therapy “ends up in the dustbin of history. A peer-reviewed study by the organization, published in the American Journal of Public Health, found that LGBTQ youth who underwent conversion therapy were more than twice as likely to report having attempted suicide and more than 2.5 times as likely to report multiple suicide attempts in the past year. The Trevor Project also campaigns to ensure schools remain “affirming spaces” for trans youth, and to gather data to help address the problems they face.
Brinton said it was important to connect the legislative attacks to the effects of living through the pandemic. LGBTQ youth attempt suicide at 4 times the rate as their cisgender and heterosexual peers, Brinton said. The organization has, at times, had twice the normal volume of calls as it had pre-pandemic. “It is a wave of badness, and it just keeps growing,” said Brinton. “Regardless of these bills, trans youth were in harm’s way, and we are there to help them.”
Does this latest proliferation of anti-LGBTQ bills seem finite, or merely a foretaste of more virulent anti-LGBTQ lawmaking to come?
Alphonso David looks to history, recalling the days of bills that sort to prohibit lesbian and gay teachers serving in public schools, the attempts to limit the definition of marriage as a union between a man and woman, and the first bathroom bills era.
“I think we’re going through another phase of this,” said David. “Now, anti-equality extremists are targeting the most vulnerable in our community, and they’re going to lose this battle as well. I see this as their reaction to losing an election. They understand the demographics are changing. They understand the majority of the public oppose their ideology and philosophy. They are trying to hold on to hate and division, but they are ultimately going to lose.
“Is this going to be one cycle, two cycles? It’s too soon to tell,” said David. “It’s fair to anticipate they will use this platform against LGBTQ people going into the midterms to try and suggest there is a culture war, and they need elected officials in office to support that. But the reality is the majority of Americans don’t support it. The more we address their misinformation, the more we see people support equality.”
66 per cent of people may not want such legislation, but “when these bills do pass we do see it seems to embolden other states to try to pass their own bills,” Carl Charles said.
Also, 66 per cent of people may object to the bills, but while they are happy to tick a box to say so, they are not yet en masse lobbying their state legislators to stop introducing and passing them. If polling numbers were borne out in reality, there would be pro-LGBTQ and pro-trans equality measures being debated in state legislatures, not ones seeking to curtail LGBTQ civil rights.
For Alphonso David, there will soon be more pro-equality voters than pro-anti equality voters, and so those legislators backing discrimination will be voted out of office.
“It is on all of us not just to check the values box to make us feel good,” said Carl Charles, “but to put some skin in the game and get involved.”