LGBTQ+ Legislative Battles and Community Impact

SFFA v. Harvard and SFFA v. University of North Carolina

Summarized by the National Women’s Law Center:

• “The two affirmative action cases involve challenges to the admissions policies used by Harvard College and the University of North Carolina (UNC) that consider race as one factor to cultivate a racially diverse student body. The group that brought the lawsuits, Students for Fair Admissions (SFFA), has been on a years-long mission to dismantle programs that support diversity. Despite the group’s name, SFFA is not a student-led organization; it is the invention of Edward Blum, a conservative legal strategist who has dedicated his career to attacking laws and policies meant to address racial inequality. 
• In a new approach from Blum’s past cases, the current/recent SFFA’s lawsuits claim that affirmative action discriminates against Asian Americans—even though social science confirms that race-conscious admissions benefit Asian Americans, the majority of whom support affirmative action programs. Blum’s focus in these cases is the same as it has always been: prohibiting universities from considering race in admissions processes. However, ignoring race completely in higher education admissions processes leads to less racially diverse student bodies, excludes women of color students in particularly harmful ways, and does not prepare all students to succeed in an increasingly racially diverse workplaces and society.“

ACLU: Affirmative action programs – including targeted outreach and recruitment efforts, the use of non-traditional criteria for hiring and admissions, after-school and mentorship programs, and training and apprenticeship opportunities – are tailored to fit specific instances where race and gender must be taken into account in order to provide fair and equal access to minorities and women. These programs recognize and strive to correct the barriers that continue to block the paths of many individual Americans.

The Business Case for Affirmative Action:

• Racial and ethnic diversity enhances business performance, and improves decision-making by increasing creativity, communication, and accuracy within teams. 
• Experience in a diverse university environment prepares students to interact with and serve racially diverse client and customer bases and to work with people of all backgrounds. The result is a business community more aligned with the public, increased profits, and business success. 
• Businesses depend on universities to recruit, admit, and train highly qualified, racially and ethnically diverse students to become the employees and business leaders of the future. Numerous studies support the conclusion that cross-racial interactions and engagement during university contribute to essential job-related skills. These include critical thinking, problem solving, and the ability to work cooperatively.

(via Amici Curiae, Brief for Major American Business Enterprises)

Community Perspectives on Affirmative Action:

• ACLU: Affirmative action is one of the most effective tools for redressing the injustices caused by our nation’s historic discrimination against people of color and women, and for leveling what has long been an uneven playing field.

• YW Boston: [This case] has been part of a broader trend, where efforts have been underway for years to suppress diverse perspectives and limit access to comprehensive educational experiences to all students… We are concerned with how this ruling will impact the protections against racial discrimination and promotion of workplace inclusion across the country. Institutions and employers with a less diverse pipeline will not have access to a more profitable workplace and will lose out on the value of a robust workplace culture.

Potential Threat to Title VII in the Workplace

Though not an immediate threat, JD Spura explains the possibility of Title VI restrictions extending to impact Title VII in the workplace:

• “Title VI and Title VII are two distinct, though similar, portions of the Civil Rights Act of 1964. Title VI—at issue in Students for Fair Admissions—governs discrimination in higher education. Title VII governs discrimination in employment. Though the case did not directly address Title VII, it may provide a direct on-ramp for Title VII litigants who desire to have a “colorblind” workplace.

• Currently, affirmative action plans are only permitted in the workplace in very narrow (and usually remedial) settings. However, race-conscious employee programs are common. Many employers have diversity statements or programs, affinity groups, race-specific mentorship and support programs, special internship or fellowships positions for individuals from diverse backgrounds, and more. These programs have previously been the subject of “reverse discrimination” lawsuits with varying degrees of success. In some jurisdictions, courts have altered the first prong of the prima facie Title VII discrimination claim to require a showing of “background circumstances [that] support the suspicion that the defendant is the unusual employer who discriminated against the majority.” Shea v. Kerry, 961 F. Supp. 2d 17, 31 (D.D.C. 2013), aff’d, 796 F.3d 42 (D.C. Cir. 2015). Other courts require no such showing and engage in a strict analysis of the traditional Title VII elements. See, e.g., Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325, n.15 (11th Cir. 2011).

• Litigants who believe they are injured by these types of diversity initiatives will no doubt attempt to translate the Court’s colorblind view on the questionable constitutionality of such initiatives from higher education to the workplace. And, unfortunately for the employers that have honed and developed these diversity initiatives, future litigants now have persuasive legal support to bolster their Title VII arguments.“

SB 266 / HB 999: Higher Education and Postsecondary Educational Institutions – censorship and government control bills

Summarized by YW Boston: 

• “On Monday, May 15, Florida Gov. Ron DeSantis signed into law a bill targeting diversity, equity, and inclusion (DEI) efforts and restricting how race and gender can be taught in the state’s public colleges and universities, banning them from using state or federal funds for diversity initiatives, including “niche” subjects like critical race theory and “DEI-infused” coursework. In a news conference that day, DeSantis characterized DEI programs as “experiments” that “stand for discrimination, exclusion and indoctrination.” Similar legislation is currently being explored in Texas. 
• DeSantis’s latest attack builds on the Stop-WOKE Act he is pushing, which aims to restrict how lessons on race and gender can be taught. These policies are coming out of a growing effort on the part of lawmakers all over the country to uphold the systems that have harmed people of color and people with marginalized gender identities for centuries, rolling back the clock on efforts to build more inclusive institutions and policies where everyone has the resources and support they need to succeed. This is harmful to everyone. 
• Characterizing DEI work as “woke” rhetoric spreads a damaging message that compromises DEI work all over the country. The results can be disastrous in many industries, undoing the work being done to protect marginalized identities and promote diversity and inclusion in every workplace, school, and institution. Here in Boston, we are seeing some organizations deprioritize or strip down their DEI efforts and budgets, signaling a chilling trend that will only get worse as calls to eliminate DEI initiatives grow louder.“

Key Elements of Bill, via ACLU:

• Dictates what courses of study college students could choose to pursue, prohibiting fields of study involving race and gender studies. 
• Usurps faculty hiring decisions to the governors’ appointees and allows tenure to be reviewed at any time.
• Prohibits spending on activities that promote diversity, equity and inclusion.
• Creates new general education requirements prioritizing neoclassical education focused on Western European civilization.

• Katie Blakenship, ACLU of Florida: “Every student deserves to learn in an environment free from government censorship. Every educator deserves the opportunity to do their job free from fear. A free society doesn’t limit what people can teach and learn in their institutions of higher education.”

• The King Center: DEI information and education identify paths for ending hate, bigotry, racism, and all forms of discrimination derived from white supremacist ideologies. Since the killing of George Floyd at the hands of Minneapolis police officers, DEI programs have become more prevalent in efforts to rectify the problems of racism, police brutality, and poverty by educating the public and giving them the tools to make humane, just decisions. In addition, effective DEI programs are essential for companies seeking to diversify their workforce and develop policies that are more reflective of the communities they serve.

• American Historical Association: “The AHA does not disagree with HB 999’s premise that the mission of the state university system should be ‘education for citizenship of the constitutional republic [and] . . . the state’s existing and emerging workforce needs.’ Employers look for applicants who have learned how to think, rather than what to think. Using evidence and deciding what facts matter is vital to being a successful engineer, doctor, or teacher. Would we want heart surgeons whose coursework or choice of tools had been dictated by political appointees? As for the viability of our constitutional republic, it is neither possible nor desirable to forge unity by refusing to acknowledge and understand division; instead, the very language of this legislation sows and perpetuates division. An informed citizenry requires the skills of historical literacy and the ability to test ideas, which is the core of history education. This is not only about Florida. It is about the heart and soul of public higher education in the United States and about the role of history, historians, and historical thinking in the lives of the next generation of Americans.”

LGBTQ+ Curricular Laws

Summarized by MAP:

• LGBTQ-Inclusive Curricular Standards: laws explicitly require the state’s curricular standards to include LGBTQ people and history, such as in subjects like history, civics, or social studies. Often these laws also require inclusive representation of other communities, such as specific communities of color, people with disabilities, or religious minorities. These are regarded as positive and protective. 7 States have these inclusion laws.

• Parental Opt-Out of LGBTQ-Related Curricula: laws require parents to be notified in advance of any LGBTQ-related curricula to allow parents to opt their children out of these classes. 5 states have these laws.

• Don’t Say Gay / Trans Laws: policies restrict schoolteachers and staff from discussing LGBTQ issues and people, often written as intentionally vague and sweeping. 11 states have these laws.

• Book Bans: in 2022, school districts in 26 states banned more than 1,000 books via policies targeting materials with mentions of LGBTQ+ identity and critical race theory

Forced Outing of Students

Summarized by MAP:

Bills and laws that explicitly require school staff—and in some cases, government or public employees—to out transgender youth to their families, often without regard for whether doing so might put the child at risk of harm. Some laws propose vague requirements to notify parents about any “health” or behavioral concern, which could be broadly interpreted and be used to target both transgender youth and LGBTQ youth.

As of September 2023:

• 5 states force the outing of transgender youth in schools
• 6 states promote, though does not require, the outing of transgender youth in schools
• Additional states and school districts are currently in debate over policies

Find an updated map of states with LGBTQ+ curricular laws here. 

• HRC: 12.3% of LGBTQ+ youth age 13-17 are living in states where “Don’t Say LGBTQ+” bills have passed, banning discussions of sexual orientation/gender identity, and LGBTQ+ people, in classrooms. Additional bills also threaten forced outings of children to their parents and prohibition of teachers using a child’s chosen name, nickname, and/or pronouns.

• GLAD: The current wave of attacks on schools, libraries, and LGBTQ+ students is only creating false conflicts between parents and schools at a time when we should all be focused on ensuring that every young person, including LGBTQ+ youth, can learn and thrive in a safe environment while at school.

• CNN: These laws don’t just minimize LGBTQ history or prevent classroom conversations with students about what it means to be queer and trans: LGBTQ educators who spoke to CNN said these bills, regardless of whether they’re passed in one’s home state, start to chip away at their confidence and comfort in a classroom. Knowing their presence in a classroom is a matter of debate can make it even harder to continue their work in a profession already plagued by stagnated pay, concerns about safety and major labor shortages. And while many queer educators are using the attacks as fuel to keep going, the harassment some LGBTQ teachers have faced is driving some of them to leave the field entirely.

Gender-Affirming Care and Care Bans

Summarized by HRC:

• “Gender-affirming care, sometimes referred to as transition-related care, is life-saving healthcare for transgender people of all ages. It is not a single category of services but instead is a range of services, including mental health care, medical care, and social services. At all ages, clear, well-established, evidence-based standards of care exist for who can access what form of gender affirming care, and when they are eligible to receive it.
• Gender-affirming care is medically necessary for the well-being of many transgender and non-binary people who experience symptoms of gender dysphoria, or distress that results from having one’s gender identity not match their sex assigned at birth. Gender-affirming care helps transgender and non-binary people live openly and authentically as their true selves. Just like any other form of healthcare, it also helps transgender and non-binary people live safe and healthy lives.
• Gender affirming care is always delivered in age-appropriate, evidence-based ways, and decisions to provide care are made in consultation with doctors and parents. Collectively representing more than 1.3 million doctors across the United States, every major medical and mental health organization — including the American Medical Association, the American Academy of Pediatrics, and the American Psychological Association — recognizes that it is medically necessary to support people in affirming their gender identity.“

Medical Care for Transgender Youth

As of September 2023, tracked by MAP:

• 21 states bans best practice medication and surgical care for transgender youth, though ban may not be in effect
• 5 states make it a felony crime to provide best practice medical care for transgender youth
• 14 states have shield law protecting access to transgender health care
• 28 states do not ban best practice medical care for transgender youth

Medical Care for Transgender Adults

Certain states are also trying ban medical care for trans folks of all ages. Missouri became the first state to “severely restrict gender treatments,” with 7 states taking steps banning Medicaid from covering gender-affirming care (NYT).

While not explicitly banning care for adults, we have seen states like Florida enact bills that resulted in health care providers suddenly dropping trans patients, leaving them unable to fill existing prescriptions or receive time-sensitive care. As Erin Reed reports, “[Florida’s SB254] bars all nurse practitioners from offering gender affirming care and imposes additional restrictions on informed consent care for transgender adults. Considering that nurse practitioners provide the majority of gender affirming care, this could drastically reduce the number of providers, lowering it to a level that is unsustainable for Florida’s transgender patient population.”

HRC’s 2023 Impact Report shares that 30.9% of all transgender youth ages 13-17 — an estimated 92,700 transgender youth — are living in states where their access to life-saving, gender affirming medical care has been banned through bills and/or administrative action. Judges, rightfully so, are halting and reversing these controversial bans across the country. Find an updated list of impacted states here (MAP). 

These bans disregard scientific evidence, representing an unjustified intrusion into personal and family medical decision-making. Doctors with expertise in treating the distress experienced by transgender youth unable to live authentically, esteemed medical associations, and parents who witness the positive transformation in their transgender children when supported, widely criticize these bans. (GLAD)

HRC debunks myths surrounding gender-affirming care:

Parents, their kids, and doctors make decisions together, and no medical interventions with permanent consequences happen until a transgender person is old enough to give truly informed consent.

Some people take medication, and some do not; some adults have surgeries, and others do not. How someone transitions is their choice, to be made with their family and their doctor.

In most young children, this care can be entirely social. This means:

• New name
• New hairstyle
• New clothing
• None of this care is irreversible.

Being transgender is not new, we are just seeing a higher rate of trans media coverage. Transgender people have always existed and will continue to exist regardless of the bills we pass.

ALL gender-affirming care is:

• Age-appropriate
• Medically necessary
• Supported by all major medical organizations
• Made in consultation with medical and mental health professionals AND parents
• And in many cases, lifesaving

LGBTQ+ Sports Participation

Excerpt of a statement released by Athlete Ally on the future of women’s sport:

• “Trans athletes’ participation in sport is not new. Sport governing bodies have successfully negotiated trans inclusion at all levels of sport for decades. The International Olympic Committee has allowed trans athletes to compete since 2003 and not a single athlete, in over 54,000 Olympians, has been openly trans. The 2021 Games are poised to have the first trans athletes—Laurel Hubbard, a weightlifter from New Zealand; Chelsea Wolfe, a freestyle BMX rider, and a few others depending on the outcome of the Olympic Trials. The NCAA has had similar guidelines since 2011.
• Though sport governing bodies have guidelines about trans athletes that require varying levels of medical interventions, from mandated surgery to specific hormone levels and identity document changes, most organizations have removed unscientific and exclusionary restrictions that prevent access in recent years. The evolution of these policies indicates that inclusion of trans women and girls is the future of women’s sport…
• Trans youth are the most recent focus of a political agenda that positions trans people— especially trans women and girls—as a threat. Recently, anti-LGBTQ+ groups and lawmakers have targeted the rights of trans people in multiple realms, including sports…
• ….Several states that have introduced anti-transgender legislation propose that eligibility for participation in the women and girls’ category should be determined via invasive physical exams. Legislators in multiple states have proposed monitoring the testosterone levels of girls and women, testing their chromosomes, and/or inspecting their anatomy. Such proposals stem from contested policy changes at the international level that target gender nonconforming women competing in elite sport. Both the United Nations and Human Rights Watch argue that such practices violate basic human rights and have lasting negative impacts on the targeted athletes, especially Black and Brown women from Global South countries. Meeting these eligibility requirements, the proposed legislation suggests, could extend to cisgender athletes. 
• Narrow definitions of how women should look also harms cisgender girls and women. Suspicion-based testing that is provoked by superficial comparisons of the physical appearances of girls and women is capricious at best and at worst explicitly disparages people who do not comply with stereotypical views of femininity.”

Youth in Sports

Anti-transgender sports bans harm transgender students, counter important efforts to create supportive school environments, and send a terrible message to all students. They also violate federal civil rights law. According to GLAD, sports bans have passed in 21 states across the country, and state legislatures have introduced at least 71 bills that target transgender athletes this session (GLAD, June 2023).

33.8% of high school aged transgender youth — approx. 101,500 of the estimated 300,100 transgender youth aged 13-17 in the U.S. — are living in states where they are unable to simply play sports alongside their friends. (HRC)

Adults in Sports

Participation of trans, gender-expansive, and intersex adults in sports has drawn public attention and has been leveraged as a political talking points in recent years. While LGBTQ+ sports participation falls outside of PIOW’s purview, we understand that this is a critical issue for many in our community.

For informed perspectives on trans athletics, we recommend listening to the experts: trans athletes. Schuyler Bailar, the first transgender athlete to compete in any sport on an NCAA Division 1 men’s team, provides a breadth of perspectives on his website.

CCES: Transgender Women Athletes and Elite Sport: A Scientific Review

ACLU: Four Myths about Trans Athletes, Debunked

MYTH: The participation of trans athletes hurts cis women. 
FACT: Including trans athletes will benefit everyone.

• Excluding women who are trans hurts all women. It invites gender policing that could subject any woman to invasive tests or accusations of being “too masculine” or “too good” at their sport to be a “real” woman. This has been seen happening with cis teens/children recently, with parents wrongly asserting that they are trans and demanding they exit the field. 
• Politicians have used the “protection” trope time and time again, including in 2016 when they tried banning trans people from public restrooms by creating the debunked “bathroom predator” myth. The real motive is never about protection — it’s about excluding trans people from yet another public space.

MYTH: Trans athletes’ physiological characteristics provide an unfair advantage over cis athletes.
FACT: Trans athletes do not have an unfair advantage in sports.

• Trans athletes vary in athletic ability just like cisgender athletes; a person’s genetic make-up and internal and external reproductive anatomy are not useful indicators of athletic performance.
• One sprinter could have parents who spend so much money on personal training for their child, which in turn, would cause that child to run faster – many factors at play outside of one’s sex

MYTH: Sex is binary, apparent at birth, and identifiable through singular biological characteristics. 
FACT: Trans girls are girls. Also, biology isn’t binary.

• There is no one way for women’s bodies to be. Women, including women who are transgender, intersex, or disabled, have a range of different physical characteristics.
• A person’s sex is made up of multiple biological characteristics and they may not all align as typically male or female in a given person.
• Many people who are not trans can have hormone levels outside of the range considered typical of a cis person of their assigned sex.

MYTH: Trans students need separate teams.
FACT: Trans people belong on the same teams as other students.

• Trans people have the same right to play sports as anybody else. “For the past nine years,” explains Carroll, “transgender athletes have been able to compete on teams at NCAA member collegiates and universities consistent with their gender identity like all other student-athletes with no disruption to women’s collegiate sports.” 
• “When a school or athletic organization denies transgender students the ability to participate equally in athletics because they are transgender, that condones, reinforces, and affirms the transgender students’ social status as outsiders or misfits who deserve the hostility they experience from peers” (ACLU).