Like clockwork, anti-LGBT bills emerge every year.
Only a handful become law—like 2015’s Religious Freedom Restoration Act in Indiana, North Carolina’s “bathroom bill” in 2016, and Mississippi’s infamous HB 1523 in 2017.
Last year, two states—Kansas and Oklahoma—passed laws targeting LGBT adoption, carving out room for religious child welfare agencies to deny placement with same-sex couples. Legal challenges against those laws are currently underway.
Now, at the start of 2019–with state legislatures opening for business in the coming weeks—LGBT advocates are turning their attention forward to future battles. Although they say the overall outlook is favorable compared to previous years, there are still plenty of possible pitfalls ahead, especially in Georgia, where Brian Kemp has already indicated he would sign a “religious freedom” measure, and in Texas, where lawmakers may once again try to pass a “bathroom bill” after failing to do so in 2017.
Masen Davis, CEO of the advocacy group Freedom for All Americans, is optimistic that most of the anti-LGBT bills that emerge in 2019 will be dead in the water.
“I think we are living in a challenging time,” he told The Daily Beast, “but the majority of people at this point know a gay or lesbian person. More and more people are starting to understand transgender people and issues. And as a movement, we learned valuable lessons from 2018.”
Indeed, despite the Trump administration’s stance on LGBT issues, LGBT advocates saw a string of state and local-level victories in 2018 that were driven by cultural change. There were conversion therapy bans passed in Washington State, Hawaii, Delaware, Maryland, and New Hampshire. Voters in Anchorage, Alaska and in Massachusetts voted to protect transgender people at the ballot box. New Hampshire added gender identity to its anti-discrimination law, joining every other state in New England.
Davis told The Daily Beast that LGBT leaders “learned valuable lessons from 2018,” like how to effectively debunk the myth that transgender protections lead to an increase in restroom assaults, and that they’re ready to “hit the ground running in 2019.”
But that doesn’t mean there won’t be major crises this year in which LGBT leaders end up having to play defense. Freedom for All Americans, for example, is anticipating potential trouble in both Georgia and Texas.
In Georgia, outgoing Republican Governor Nathan Deal famously vetoed the anti-LGBT “religious liberty” bills that reached his desk under pressure from the state’s growing film industry.
But Deal’s successor Brian Kemp, who narrowly defeated Democratic challenger Stacey Abrams in a closely watched race last November, has said that he would sign a RFRA so long as it used similar language to existing federal law, which, as The New Yorker reported, “raise[d] the question of why the legislation would be necessary at all.”
“There’s no necessity for adopting a state version except as a pretext for allowing discrimination against the LGBTQ community,” Abrams told the magazine.
With Kemp in office, Georgia could witness another high-profile showdown in 2019 between the entertainment industry and anti-LGBT politicians.
In Texas, as the Austin American-Statesman reported last fall, there are already rumblings about another attempt at a “bathroom bill.” Equality Texas CEO Chuck Smith later told Metro Weekly that it won’t stop there: bills that carve out religious exemptions in order to allow discrimination against LGBT people will definitely be proposed.
“I fully expect more than 17 religious refusal bills this year,” Smith said.
Today, after the 2018 midterm elections, Davis sees reason for cautious optimism.
“We were heartened to see that most of the prominent anti-LGBT lawmakers in Texas actually lost their seats in the 2018 midterms, so that gives us some hope,” he said. “But advocates are still bracing for another year of defense in the Lone Star State.”
Outside of Georgia and Texas, there will be some common themes to look for this year across the country. Davis anticipates that, after victories in places like North Carolina, Anchorage, and Massachusetts, the days of blatantly discriminatory “bathroom bills” could finally be over—but that still leaves plenty of terrain for anti-LGBT bills to cover.
“Nationwide, we’re seeing a trend toward more anti-LGBTQ bills related to preemption, as well as religious refusals that are especially targeting the child welfare system,” said Davis.
The first area—preemption—refers to state-level bills that would essentially supersede any local-level LGBT protections or block municipalities from passing them.
As Human Rights Campaign state legislative director Cathryn Oakley told The Daily Beast, such bills are likely to be proposed in “red states across the country that have more progressive cities that have passed [LGBT-inclusive] ordinances but the state legislatures are more conservative.” Arkansas, Tennessee, and North Carolina already have such laws—and we could see more states attempt to join them this year.
The second area to watch in 2019 includes religious exemption bills that allow adoption and foster care agencies to turn away same-sex couples looking to give a child a home—bills like those passed in Kansas and Oklahoma last year.
Both kinds of bills, says Oakley, are part of a trend away from the “huge, sweeping RFRAs” that were primarily proposed in 2015 and 2016: “The subsequent couple years have really been more about targeted religious exemption—license-to-discriminate bills that are going after a particular sector.”
The challenge with this shift toward what that HRC calls “sector-specific” bills is that they draw much less public scrutiny than more attention-grabbing laws like Indiana’s 2015 RFRA. They also rely on the general public’s unfamiliarity with how those sectors—like, say, the child welfare system—actually function. When it comes to adoption and foster care, for example, taxpayer funding goes to many religious agencies that handle child placement.
“In order for us to explain how these laws are discriminatory, we have to first educate the public about what the system looks like, so it just takes longer and it’s more work,” said Oakley. “That’s precisely why our opposition has gone there.”
Although anti-LGBT bills won’t begin to be filed until later this month, Oakley and the HRC are closely watching at least three states apart from Georgia and Texas.
Oklahoma has been, as Oakley notes, “one of the states with the highest number of anti-LGBTQ bills filed.” Tennessee, she adds, has “seen things passed through committees, although they have not actually passed anything into law in a couple of years”—but the state remains a perpetual concern for the high number of anti-LGBT bills that are filed.
In South Dakota, as the Associated Press noted, incoming Republican Governor Kristi Noem has said that she would have approved an anti-transgender “bathroom bill” like the one that her predecessor vetoed in 2016–although the state’s legislative leadership doesn’t seem particularly inclined to send one to her desk.
“I expect that we’ll see a lot of bills introduced,” Oakley told The Daily Beast. “We certainly have legislators all across the country who believe this is red meat they want to throw to their base. But being introduced and passing through committee are two really different things.”
Indeed, LGBT leaders believe that after high-profile disasters like Indiana’s RFRA and North Carolina’s “bathroom bill,” state legislatures are finally realizing that actually passing a proposed anti-LGBT bill is a bad move.
“Obviously it remains to be seen but, at this point, I think there’s definitely reason to feel optimistic that state legislatures aren’t going to continue to make the same mistakes that they have made in the past,” said Oakley.