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Anti-Trans Legislation During a Pandemic: Local Democracies Are Failing Us

Community leaders, parents, kids, doctors, lawyers, assemble in front of the White House to protest the non-science based policy of segregating LGBTQ children in public schools based on the schools' determination of their gender identity.

In the new legislative session of 2021, Alabama’s elected officials have their work cut out for them. In Alabama, there have been 392,790 confirmed cases of coronavirus since March 2020, 45,976 hospitalizations, and 10,186 deaths. A central Alabama food bank reports feeding over 428,000 unique individuals throughout the course of 2020, more than double the amount of people they served in 2019. 1 in 10 people in Alabama entered the pandemic without health insurance, and 85,000 Alabamians are receiving unemployment benefits. 

Alabamians, like most Americans, are currently living through the worst nexus of a health and economic crisis in a century and are relying on their lawmakers for much needed relief and assistance. It may come as a surprise to some to find out that instead of hearing bills that help rebuild the economy or slowing down the spread of coronavirus, both the Alabama state house and senate are hearing bills—HB1 and SB10, respectively—that will ban physicians from prescribing gender-affirmative medication to transgender youth. Alabama is just one of at least twenty-five states across the U.S. that together have introduced a total of 82 pieces of anti-transgender legislation in the new session, already breaking the record set in 2020 of the most anti-trans bills introduced in one year. With each bill requiring multiple days of debate, this adds up to hundreds to possibly thousands of valuable hours spent in state legislatures arguing over bills that are unpopular and counterproductive to ending the suffering of the COVID-19 pandemic.

Of course, Alabama is not the only state in crisis — the entire country is suffering from historic rates of unemployment, food insecurity, and death. Meanwhile in Mississippi, North Dakota, and Tennessee, at least one chamber of each state legislature has already passed a bill that restricts nonbinary and transgender children from participating in sports teams that align with their gender identity. In Montana, the bill already passed the house, masquerading behind a noble cause: “Saving Women’s Sports.” California, by comparison, just passed a $7.6 billion Golden State stimulus package that includes $2 billion for small businesses and $3.4 billion for low-income and undocumented people. The recent slew of anti-transgender legislation aims to restrict trans people’s most basic rights to exist, from bathroom access to gender-affirming healthcare. It mainly targets trans youth, who are already at a higher risk of depression and suicide than their cisgender peers. Multiple studies show that receiving services and healthcare that respect one’s gender identity—the very same rights that these bills aim to restrict—can help transgender youth struggling with anxiety, depression, self-harm, and suicidial thoughts  

Not only are these legislations cruel and unproductive, but they are also largely unpopular. In a poll conducted by the Human Rights Campaign & Hart Research Group across 10 swing states, 87% of respondents say transgender people should have equal access to healthcare and 60% of Trump voters believe that transgender people should be able to live freely and openly. Of the voters who are not completely supportive of trans people, the vast majority are at least indifferent and certainly do not think that restricting their rights should be a top legislative priority. When asked to rank the personal importance of a list of policies relating to jobs, the economy, COVID-19, and healthcare, the issue of trans people competing in sports came in dead last in each state, with only 1-3% of respondents ranking the issue as most important. Anti-transgender legislation is also expensive: the infamous and since repealed North Carolina bathroom bill (HB2) was projected to cost the state $3.76 billion in lost business over 10 years, according to a report by the Associated Press. Another anti-transgender bathroom bill in Texas in 2017 cost the Texas Association of Business an estimated $8.5 billion in economic losses and risked 185,000 jobs.

Some have referred to the coordinated legislative attack against transgender people as a “culture war,” a direct response to Biden’s victory and his embracing of the LGBTQ+ community. While there is no doubt that Americans are incredibly culturally and politically divided by factors like geography, race, and religion, the “culture war” is not causing anti-trans legislation: right-wing evangelical interest groups are. One organization, the Alliance Defending Freedom (ADF)—categorized as a hate group by the Southern Poverty Law Center—is largely responsible for this new wave of anti-trans legislation. The first bill to be passed in a state legislative chamber that targeted trans girls in sports, Montana HB 112, was written by ADF and inspired a number of copycat bills across the country. Anti-transgender bills do not represent the interests of constituents; in fact, lawmakers cannot even cite a single instance in the states they represent in which the participation of trans girls in sports is posing an issue. While it is often easy to fall into the trap of blaming an abstract social battle for all of our political ills, it is important to remember that the majority of Americans are supportive of laws that protect the rights of transgender people, as polling consistently shows. Politicians are not legislating with this fact in mind and are actively ignoring the urgent needs of many struggling Americans. 

The root of the problem may lie in the fact that the only power citizens hold over politicians—our ability to reelect or reject them—is dwindling at a state level. State houses are infamously gerrymandered, and often do not reflect the racially diverse population of many states, especially ones controlled by the Republican party such as Alabama, Florida, and West Virginia. While partisan gerrymandering certainly takes place on both sides, Republicans tend to benefit more from the practice than Democrats do. The Republican-controlled state legislature in Virginia, for example, redistricted in 2010 among racial lines, effectively making it impossible for Democrats to win races in the state until the Supreme Court ruled their map unconstitutional. In 2019, with a new, fairer map, Democrats gained back control of the state legislature with a majority that is reflective of the state’s voting patterns in federal elections. North Carolina, home of the infamous bathroom bill, is also heavily gerrymandered and similar legal battles have ruled that the map is unconstitutional. According to an op-ed penned by former Republican governor of California, Arnold Schwarznegger, more than 59 million Americans live under “minority rule” states, defined as states in which the party that received fewer votes in the 2018 election controls the majority of state legislature seats. In highly gerrymandered states, mostly Republican state House and Senate representatives don’t need to worry about losing their seats. They have the protection of strategically drawn maps that favor their party and silence the voices of Black voters. Without the threat of electoral backlash, these representatives are empowered to introduce unpopular, unproductive anti-transgender legislation in the middle of a devastating global pandemic.

Amidst overlapping crises of a pandemic, unemployment, and racial unrest, more citizens than ever are turning towards the federal government for help. On a macro level, more people voted in the 2020 presidential election than ever before, partly due to expanded voting access but also due to a perception of increased stakes in this election. But while citizens are more aware than ever that their votes matter for passing favorable legislation at the federal level, most Americans are still widely in the dark about what goes on closer to home in their state capital. A key issue with avoiding unpopular and unproductive legislation is that most constituents are likely not aware of who their state legislators are, much less that they are debating anti-transgender bills in the middle of a devastating pandemic. Most Americans, Democrats and Republicans alike, do not trust their government to guide them through a crisis, and with good reason, considering the prioritization of unproductive legislation that aims to further a political agenda that very few seem to care about. Of course, distrust and lack of knowledge are deeply connected. Increased transparency could lead to major backlash among constituents. But change is not likely until there is enough awareness of the state of our local democracies. If we want to increase voter turnout for local elections and strengthen our democracy, it must begin at a local level with better civic education and the repair of our state legislatures. 

Image: Photo via Wikimedia