The dramatic rise in state efforts to limit LGBT rights

While the lesbian, gay, bisexual, and transgender community has become more visible and won more legal protections in recent years, state lawmakers have increased attempts to pass legislation that could restrict civil rights for LGBT people. Since 2013, legislatures have introduced 348 bills, 23 of which became law.

According to data collected by the American Civil Liberties Union and analyzed by The Washington Post, the number of bills introduced has increased steadily each year. In the first half of 2017 alone, at least 70 bills that could limit LGBT rights have been introduced, a steep increase from previous years.

The increase in this type of legislation seems at odds with public opinion, where decades of LGBT advocacy have culminated in significant cultural and legal shifts. In early 2015, President Barack Obama made history when he spoke of “lesbian,” “bisexual” and “transgender” people in his State of the Union address. According to a June report from the Pew Research Center, 62 percent of Americans support same-sex marriages, almost a complete reversal from a decade prior. In recent years, transgender people began to see more cultural representation, and “Orange Is the New Black” star Laverne Cox was celebrated on a Time magazine cover as the “transgender tipping point.”

Most of the bills are focused on protecting religious freedom

In 2013, the Supreme Court struck down a critical part of the Defense of Marriage Act, allowing for historic gains in gay rights. In response, many state legislatures introduced what they called religious freedom restoration acts and First Amendment protection bills. Originally backed by the ACLU, these bills are often used to protect businesses and individuals who refuse to serve LGBT people on religious grounds. This type of bill increased by at least 50 percent every year from 2013 to 2015, but decreased by almost a quarter in 2015. Many state houses have since shifted their focus to “bathroom bills.”

Recent legislation aims to limit transgender rights

Legislation focused on transgender individuals, such as bathroom bills, didn’t appear in ACLU’s data until 2015, when two bills were introduced by state legislatures in that session. (Two additional bills were introduced in 2015 but were part of the 2016 session.) Since 2016, more than a third of proposed bills that limit LGBT rights were bathroom bills.

Before this increase, the federal government had made strides toward transgender equality. In May 2014, Medicare regulations changed to allow coverage for sex reassignment surgery. A few months later, then-Attorney General Eric H. Holder Jr. stated that Title VII of the Civil Rights Act of 1964, which bars discrimination based on sex, applies to gender identity as well. However, many of the new bills introduced, such as Minnesota’s HF 1183, clarify that health-care providers don’t have to provide gender transition care. Others, like Arizona Senate Bill 1191, make it more difficult for people to change their name, or they bar transgender people from changing their sex on their birth certificate.

[These states are opening the door to bathroom wars]

Now transgender rights have become the focus of the latest struggle between federal and state lawmakers. In March, North Carolina repealed H.B. 2 — a law requiring people to use public restrooms according to the sex on their birth certificate, as well as reversing other LGBT protections — in the face of economic pressures. Yet states like Texas continue to push through bathroom bills and legislation that allows bias in adoptions and foster care. Last year, 11 states sued the Obama administration over transgender civil rights legislation in schools, challenging the scope and interpretation of federal anti-discrimination laws.

Marriage refusal bills have often followed Supreme Court rulings

A year after the DOMA ruling in 2013, the Supreme Court decided to uphold a lower court decision that overturned prohibitions on same-sex marriage in five states. State legislatures across the country reacted strongly, introducing marriage refusal bills more frequently.

There was a spike again after January 2015, when the Supreme Court announced it would make a ruling on Obergefell v. Hodges, a case that would definitively determine whether same-sex marriage would be allowed nationwide. The number of marriage refusal bills introduced rose 200 percent that year, but only three passed.

Same-sex marriage is now legal, but there are still bills being introduced, largely to protect government employees and religious individuals from legal action if they choose not to perform marriages. In 2016, 28 marriage refusal bills were introduced, and one became law. So far this year, 16 marriage refusal bills have been introduced.

Other LGBT legislation includes health services and adoption laws

This category of bills includes legislation relating to college and university groups​, health services​, pre-emptive protections, and adoption and foster care. Since 2013, nine bills have been introduced that would allow health service providers to deny services because of religious beliefs without the threat of disbarment or license withdrawal, or risk of a civil lawsuit.

The newest category of bills are preemptive bills, which prohibit local governments from passing anti-discrimination bills that exceed protections given by the state. Eighteen such bills have been introduced since 2015. North Carolina passed a bill in March 2016, later repealed, that specified local legislatures must follow statewide policies for single-sex restrooms so as not to disrupt commerce across the state.

A state-by-state look at LGBT legislation

There have been 348 bills introduced across the nation since the ACLU began tracking legislation in 2013. Texas has introduced 36 bills, more than any other state, and only one became law. Virginia has passed the most bills with four pieces of legislation becoming law. Eight states and the District have not introduced any legislation limiting LGBT rights since 2013.