One Step Forward, 10 Steps Back: The Rise of Anti-LGBTQ+ Laws in the United States
When it comes to respecting the human rights of lesbians, gays, bisexuals, transgender, and queer (LGBTQ+) people, the United States is regressing at a fast pace. American right-wing conservatives are using a range of strategies to oppress and marginalise LGBTQ+ people.
To describe it as one step forward, and 10 steps back is too generous, as the number of anti-LGBTQ+ laws currently being considered across numerous states in America, exceed 300. The one step forward came in 2015, when the US Supreme Court held, in Obergefell v. Hodges, that same-sex couples have the right to marry. It was anticipated that this landmark decision would lead to increased respect for the rights of people of diverse sexual orientations and gender identities, but the opposite is true.
The anti-LGBTIQ+ backlash that has swept across the United States in the seven years since the Supreme Court decision in Obergefell v. Hodges, is what we might expect to see in countries like Russia, not the United States, whose national anthem proclaims it to be the “land of the free.” However, these days, freedom in the United States is a privilege reserved only for persons who identify as heterosexual and cisgender.
Having lost their battle against marriage equality in the Supreme Court, anti-LGBTQ+ activists shifted their attention to state legislators and local administrators. The result is that LGBTQ+ community, particularly young, gender-diverse people, are facing discrimination and persecution on multiple fronts.
Prohibiting transgender women from playing sport
Prior to 2020, no American state had laws regulating the participation of transgender youth in sports. It didn’t seem to be a big issue. However, in the last two years, dozens of states have passed laws requiring transgender athletes to compete in sports according to the sex assigned to them at birth.
This is a clear violation of human rights. While a core principle of sport is that there should be a level playing field and no participant should have an unfair advantage of others, it is also a core principle that sport should be conducted in a non-discriminatory way that respects the human rights and dignity of all athletes.
The International Olympic Committee (IOC) has managed to achieve this. In November 2021, following a two-year consultation process with more than 250 athletes and concerned stakeholders, the IOC published the IOC Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations. The IOC Framework takes the exact opposite approach to assessing the eligibility of trans athletes. It provides that:
No athlete should be precluded from competing or excluded from competition on the exclusive ground of an unverified, alleged or perceived unfair competitive advantage due to their sex variation, physical appearance or transgender status.
American legislators should immediately repeal bans on trans people in sport and be guided by the ten principles set out in the IOC Framework.
Dictating heteronormative curriculums in schools
Many states are considering, or have already passed, laws that ban classroom discussions about sexual orientation and gender identity in primary schools. Florida was one of the first states to pass what has been dubbed the “Don’t Say Gay” bill. The Parental Rights in Education Act (HB 1557) prohibits any instruction on sexual orientation or gender identity in kindergarten to grade three, and any instruction that “is not age appropriate or developmentally appropriate” in any year level. This is so broad and ill-defined that it could capture a lesbian teacher mentioning her wife or a student drawing a picture of their two dads when asked to draw their family.
In states that have passed these laws, schools will no longer be safe spaces for children who are LGBTQ+ or who have same-sex parents. These young people who already face increased stigma and isolation will feel even more excluded and as if there is something wrong with them. These laws also have a chilling impact on teachers, many of whom have already lost their jobs, and make a mockery of America’s claim to be the champion of free speech.
Criminalising parents and medical professionals who facilitate gender affirming treatment
In February 2022, Texas Governor Greg Abbott issued a directive to the state Department of Family and Protective Services that described “sex change” procedures as constituting child abuse and directed the department to “conduct a prompt and through investigation” of any such abusive procedures. It also noted that criminal penalties apply to medical professionals who fail to report such abuse, and that the department has a duty to investigate parents and facilities where “abusive gender-transitioning procedures” are undertaken. The governor went even further, calling on “members of the general public” to report the parents of transgender minors to state authorities if it appears that their children are receiving gender-affirming medical care. It is hard to read this and not be reminded of the dark days of the McCarthy era.
Texas courts have issued injunctions halting these child abuse investigations, but the state is seeking to overturn those orders in an appeal to the Texas Supreme Court. Trans children are being abused, but it is by Republican politicians, not their loving parents and healthcare providers.
Lessons for Australia
The United States is in the grip of a moral panic, and anti-LGBTQ+ bills are being introduced at a feverish pace. We are barely a third of the way through 2022, yet almost 40 of the 50 American states have already introduced legislation.
Transphobia is the common theme that infuses all these legislative initiatives, with ignorance and hate sitting behind these toxic campaigns. The negative mental health impacts on trans people of such prejudice and discrimination, has been well documented and include depression, suicidality, PTSD, substance use disorders and anxiety. The public debate and widespread media coverage regarding these hostile laws is already seeing an increase in calls to crisis help lines by distressed trans youth.
In Australia, the anti-trans views being expressed by politicians such as Mark Latham and candidates such as Katherine Deves suggest that Australia may be heading down a similar path to the United States. It has been just over four years since Australia attained marriage equality, and there have already been attempts to wind back the human rights protections that LGBTQ+ people fought so hard to achieve. Some of these have been unsuccessful, for example, neither the federal Religious Discrimination Bill 2021 nor the New South Wales Education Legislation Amendment (Parental Rights) Bill 2020 were passed by parliament. However, other attacks on LGBTQ+ people have been more effective, including the defunding of the Safe Schools program.
There is no time for complacency in Australia. America provides a sobering reality check of what can happen if we take respect for the rights of LGBTQ+ people for granted. Australia’s sexual and gender minorities, particularly trans and gender-diverse youth, look at the transphobic persecution happening with impunity in the United States and are understandably very scared about what their future might hold.
Professor Paula Gerber is a researcher in Law at Monash University, where she specialises in international human rights law, particularly as it applies to LGBTIQ+ people.
This article is published under a Creative Commons Licence and may be republished with attribution.