2017 a Mixed Bag for State Legislatures on LGBT Issues

With state legislative sessions wrapped in just about every state — including two sessions to pass anti-trans legislation in Texas if you count the general session and the special session –2017 proved a mixed bag on LGBT-related bills across the country.

In Texas, transgender rights supporters thwarted an attempt by state leaders to enact legislation that would have barred transgender people from using the restroom consistent with their gender identity.

However, Texas — along with Alabama and South Dakota — enacted laws allowing taxpayer-funded adoption agencies to deny placements in homes based on religious objections, which could result in discrimination against LGBT families.

On the pro-LGBT side, four states — Connecticut, Nevada, New Mexico and Rhode Island — enacted legislation barring the widely discredited practice of “ex-gay” conversion therapy for youth. But states also rejected efforts to advance LGBT non-discrimination protections, including New Hampshire, where a bill to expand the gay-only human rights law to cover transgender people was tabled on the House floor.

Eunice Rho, advocacy and policy counsel for the American Civil Liberties Union, told the Washington Blade activity at the state level “wasn’t as damaging as it could have been” on LGBT issues this year.

“I don’t think a single anti-trans bill about public accommodations passed this session, which was really heartening and also we didn’t see bills like the RFRA or FADA pass at the state level, too,” Rho said.

Amanda McLain-Snipes, director of advocacy programs at the Equality Federation, said LGBT advocates “were quite successful in stopping harmful legislation” initiated by opponents of LGBT rights.

“The most recent evidence of that being Texas where they tried to pass anti-transgender legislation during their regular session, were unsuccessful, called a special session and were unsuccessful again,” McLain-Snipes said. “And that’s even in a state like Texas, and so it gives us cause for celebration.”

In Texas, the anti-trans bathroom bill was defeated despite a massive push from Republican lawmakers and Lt. Gov. Dan Patrick, who made passing the measure a top legislative priority.

Lawmakers sought to pass a bill that would undercut city ordinances barring anti-trans discrimination in bathrooms and locker rooms and prohibit transgender people from using the restroom in government buildings and schools consistent with their gender identity.

In the general session, the measure died after the House and the Senate couldn’t agree on the exact form the legislation would take. After that session ended, trans rights advocates thought they were in the clear, but Gov. Greg Abbott called for a special session to ensure anti-trans legislation would reach his desk.

Nonetheless, although the Senate passed a measure, lawmakers didn’t follow suit in the House, where House Speaker Joe Straus opposed the measure. The special session ended last week without an anti-trans measure reaching the governor’s desk.

The Texas measure failed after a massive outcry from transgender advocates, business leaders and law enforcement officials. CEOs from 51 Fortune 500 companies publicly denounced the bill, 20 of which were based in Texas. The Dallas Stars, an ice hockey team, publicly came out against the measure and the Dallas Cowboys were credited with working against it behind the scenes.

Rho said anti-trans legislation was unsuccessful in Texas because trans rights supporters had “done such a good job” informing the public about the “damage that it causes to trans kids in particular but trans adults as well.”

“I think there is a really big force behind a victory like in Texas, with the business communities from the beginning of the legislative session into the end of the special session being vocal about why they didn’t want these kinds of bills in their state,” Rho said.

McLain-Snipes said the defeat of the anti-trans legislation was the result of how “people heard our stories” after the transgender community spoke out.

“The power of transgender people sharing their experience and their fears with the potential of this legislation passing really let other Texans know what was at stake, and as a result, folks were calling their representatives and their senators and saying, ‘Don’t do this on my behalf,'” McLain-Snipes said. “And it really caused a lot of folks to not want to pass that type of legislation.”

Other states where anti-trans bathroom bills were introduced this year, but didn’t make it into law, were Alabama, Arkansas, Illinois, Kansas, Kentucky, Minnesota, Missouri, Montana, New York, Oklahoma, South Carolina, South Dakota, Virginia, Washington and Wyoming.

In North Carolina, where an anti-trans measure was already law as a result of former Gov. North Carolina Pat McCrory signing into law House Bill 2, North Carolina Gov. Roy Cooper with Republican lawmakers replaced the law with House Bill 135. The new law, which LGBT rights supporters say is still discriminatory, bars cities from passing pro-LGBT non-discrimination ordinances for three years and state agencies from “regulation of access” to bathroom facilities.

Although the anti-trans bill was defeated in Texas, Abbott signed into law — perhaps as a silver medal to opponents of LGBT rights — a law allowing taxpayer-funded adoption agencies to refuse child placement based on religious objections. Preceding Texas this year in enacting similar measures were Alabama and South Dakota.

Many child placement agencies are religious institutions, such as Catholic adoption agencies. Under these new laws, these agencies could be free to deny placement to an LGBT family — or Jewish people, Muslims and single parents — based on religious beliefs.

In Texas, McLain-Snipes said the foster care system is in crisis and “children are in state custody because they can’t get them places soon enough,” which made lawmakers willing to accept anti-LGBT legislation when adoption agencies threatened to bolt after the advent of marriage equality.

“In that crisis situation, the legislators felt like they needed to make that problematic compromise in order to get those religious organizations back to the table and back to offering services where they previously walked away,” McLain-Snipes said.

Rho said states that enacted anti-LGBT adoption measures were also ones were anti-trans legislation was introduced, so part of an effort “to divide attention, resources, opposition” in attempts to pass at least one anti-LGBT bill.

“Unfortunately, the adoption and foster care bills have been challenging,” Rho said. “There’s a pretty low level of understanding of how our adoption and foster care system works, and so there’s not an immediate connection to the harm that it poses not just to the couples or individuals wanting to adopt, but of course the children who are in the system. So I think the immediate harm is sometimes not immediately understood.”

Broader religious freedom bills were introduced this year in Arkansas, Texas, Washington and Wyoming, but didn’t make it into law. Although the effort to pass these measures was less energetic than years past, they still were introduced and discussed.

After massive outcry over “religious freedom” measures allowing denial of services to LGBT people, such as the law Vice President Mike Pence signed as Indiana governor, McLain-Snipes said the adoption bills were the result of more narrowed attempts to enable discrimination.

“We have seen a shift from very broad religious exemption legislation to more narrowed, and the implications, reasons for denial,” McLain-Snipes said. “So that’s why you saw a shift and a focus on unfortunately our most vulnerable, on families.”

The pro-LGBT side also saw victories in state legislatures. Four states — Connecticut, Nevada, New Mexico and Rhode Island — enacted bans against widely discredited “ex-gay” therapy for youth. The measures enjoyed such bipartisan support that in two cases Republican governors — Nevada Gov. Brian Sandoval and New Mexico Gov. Susanna Martinez — signed the bills into law.

McLain-Snipes said the passage of bans on “ex-gay” conversion therapy “gives me a lot of hope” because they demonstrate greater awareness of the harms over the practice.

“People are seeing so-called conversion therapy for what it is, which is abuse and fraud,” McLain-Snipes said. “So, decision-makers who are able to enact policies to protect vulnerable youth have been doing what they can doing their part to make sure that folks get protections from discredited practices.”

But in other states, attempts to ban “ex-gay” conversion therapy were unsuccessful. In New Hampshire, a committee in the Republican-controlled House voted to retain the measure to keep it from advancing to the floor. In Colorado, a Senate committee rejected a similar measure.

Attempts to enact non-discrimination laws, a longstanding goal of the LGBT rights movement, weren’t as successful as conversion therapy bans. Versions of legislation that would enshrine LGBT non-discrimination protections into law were introduced in just about all the 22 states that lack them, but none made it into law.

In New York, where anti-trans discrimination is already illegal as a result of an order signed by Gov. Andrew Cuomo, an attempt to codify those protections passed the Assembly, but remains dead-in-the-water in the Republican-controlled Senate. In New Hampshire, an attempt to expand human rights laws to include gender identity was approved in House committee, but ultimately tabled on the floor.

Rodrigo Heng-Lehtinen, director of public education for Freedom for All Americans, said the failure of the anti-trans bathroom bill in Texas “absolutely” affords lessons for pro-trans protections in New Hampshire — even though the measures are opposite in nature.

“The huge success in Texas was all the opposition from the business community warning a bathroom ban would cost the state up to $5.6 billion in economic investment,” Heng-Lehtinen said. “New Hampshire’s economy is nowhere near as big as Texas, but not taking steps to protect trans people from discrimination would still negatively impact the state’s economy.”

Heng-Lehtinen, the transgender son of Rep. Ileana Ros-Lehtinen (R-Fla.), also pointed out New Hampshire is now the only state in New England without explicit transgender non-discrimination protections.

“As New Hampshire works to compete with all of its neighboring states, it’s now at a disadvantage and it’s further behind all of their neighbors, so they’re this island in New England as far as the business community is concerned,” Heng-Lehtinen said.

With legislative sessions now at a close for 2017, the next phase of anti-LGBT bills may well be pre-emption bills aimed at undermining city ordinances in conservative states protecting LGBT rights.

Earlier this month on “Fox & Friends,” Patrick hinted these measures could allow Republican-controlled states to undermine Democratic authority in cities.

“Where do we have all our problems in America?” Patrick said. “Not at the state level, run by Republicans, but in our cities that are mostly controlled by Democrat mayors and Democrat city council men and women. That’s where you see liberal policies, that’s where you see high taxes, where you see high street crimes.”

Rho pointed to Patrick’s remarks as evidence that pre-emption bills — already the law in some form in Tennessee, Arkansas and North Carolina — are the next wave of attacks.

“The threat about pre-emption is that it will target LGBT communities specifically because they target non-discrimination ordinances, but they really hit out at a host of reforms or progressive ideas that municipalities or localities or trying to introduce, and it will greatly reduce their power whether it’s about wage or family or what have you,” Rho said.

This article originally appeared in the Washington Blade and is made available in partnership with the National Gay Media Association.