More than 250 bills seeking to limit the rights of LGBT people have been brought up or passed in state legislatures across the country this year.
Many target transgender youth by limiting access to gender-affirming medical care or prohibiting participation in school sports. Some seek to bar transgender people from restrooms consistent with their gender identity. Others focus on refusal-of-service under the guise of “religious liberty,” a transparent legislative attempt to allow businesses and organizations to discriminate against LGBT people.
Last Wednesday, in a ruling that halted West Virginia’s attempt to ban transgender athletes from middle and high school female sports teams, U.S. District Judge Joseph Goodwin wrote eloquently about the state’s new law and the history those behind these laws so willfully ignore:
“A fear of the unknown and discomfort with the unfamiliar have motivated many of the most malignant harms committed by our country’s governments on their own citizens. Out of fear of those less like them, the powerful have made laws that restricted who could attend what schools, who could work certain jobs, who could marry whom, and even how people can practice their religions. Recognizing that classifying human beings in ways that officially sanction harm is antithetical to democracy, the states ratified the Fourteenth Amendment. It ensures that no state may ‘deny to any person within its jurisdiction the equal protection of the laws.’ Accordingly, the courts are most juberous of any law—state or federal—that treats groups of people differently.”
Fear is an operative word in that passage. Republicans are using fear—“fear of those less like them,” as the judge wrote—to rile up a subset of their base, wholly unconcerned with the havoc these cynical bills wreak on the psyches of young people and adults who want nothing more than to be fully and authentically themselves.
The plaintiff in the West Virginia case is Becky Pepper-Jackson, an 11-year-old transgender girl who wants to compete on the girls’ track and cross-country teams at her school. She’s referred to in the judge’s ruling as “B.P.J.”
Goodwin wrote: “It is clearly in the public interest to uphold B.P.J.’s constitutional right to not be treated any differently than her similarly situated peers because any harm to B.P.J.’s personal rights is a harm to the share of American rights that we all hold collectively. The right not to be discriminated against by the government belongs to all of us in equal measure. It is that communal and shared ownership of freedom that makes up the American ideal.”
On July 9, a federal judge in Tennessee blocked a ludicrous new law that would have required business owners who allow transgender people to use the bathroom that aligns with their gender identity to post signs that read: “This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”
State officials defending the law argued the signs would be factual and not controversial. Judge Aleta Trauger of the U.S. District Court for the Middle District of Tennessee swatted that argument down soundly, writing:
“The second big, foundational problem with the defendants’ argument is that, to state the obvious, the people on one side of a disagreement do not get to unilaterally declare their position to be uncontroversial, because that is not how the concept of ‘controversy’ works. Put another way, the defendants might be wise to accept that, once you are in a heated argument with multiple folks about whether your position is uncontroversial, there is a good chance that you may have already lost.”
The side pushing the anti-LGBT bills has, in fact, already lost. None of these cruel and ham-handed maneuvers is going to stand. They’re antithetical to our laws and constitutional rights.
But they will devour enormous amounts of time and money, in courtrooms and legislatures, and they will distract certain voters from the fact that their party prefers culture-war nonsense to policy.
To be clear, the right’s so-called culture war has never been about winning. It’s just about battling ginned-up foes and faux evils. It’s “welfare queens” and “migrant caravans” and “critical race theory” and “the sanctity of marriage.” Its transgender people using the bathroom. Or transgender girls playing sports.
It’s nothing more than leveraging what Judge Goodwin called “fear of the unknown and discomfort with the unfamiliar” to maintain power.
And it comes at the expense of people such as Becky Pepper-Jackson, an 11-year-old who just wants to run with her friends. It comes at the expense of LGBT people of all ages whose very identify gets questioned, demeaned and marginalized so some drip of a politician can squawk his dated, self-centered view of how the world should be.
These impotent swipes at progress will fail. But they’ll hurt people along the way.
And they’ll draw a trail of shame in the history books. One that leads back to every lawmaker who chose hate over a chance to do some good.
Rex Huppke is a columnist for the Chicago Tribune.