By Mark Satta
Nearly 500 anti-LGBTQ bills have been introduced in state legislatures in the U.S. in 2023. Many of those bills seek to reduce or eliminate gender-affirming care for transgender minors or to ban drag performances in places where minors could view them.
Most of those bills have not become law. But many of those that have did not survive legal scrutiny when challenged in court.
Anti-LGBTQ laws that federal judges have concluded do not pass constitutional scrutiny include anti-trans legislation in Arkansas and anti-drag legislation in Tennessee.
A notable feature of these rulings for me – a First Amendment scholar – is how many rely on the First Amendment’s protection of free speech. In several of the decisions, judges used harsh language to describe what they deemed to be assaults on a fundamental American right.
Here’s a summary of some of the most notable legal outcomes:
Drag performances
Several states passed laws aimed at restricting drag performances. These laws were quickly challenged in court. So far, judges have sided with those challenging these laws.
On June 2, 2023, a federal judge permanently enjoined Tennessee’s attempt to limit drag performances by restricting “adult entertainment” featuring “male or female impersonators.” When a law is permanently enjoined, it can no longer be enforced unless an appeals court reverses the decision.
The judge ruled on broad grounds that Tennessee’s law violated freedom of speech, writing that it “reeks with constitutional maladies of vagueness and overbreadth fatal to statutes that regulate First Amendment rights.” He also ruled that the law was passed for the “impermissible purpose of chilling constitutionally-protected speech” and that it engaged in viewpoint discrimination, which occurs when a law regulates speech from a disfavored perspective.
Three weeks later, a federal judge granted a temporary injunction against Florida’s anti-drag law on similar broad grounds.
AP Photo/John Raoux, File
And in Utah, a federal judge required the city of St. George to grant a permit for a drag show, ruling that the city had applied an ordinance in a discriminatory manner in order to prevent the family-friendly drag show from happening. As in the other cases, the judge’s ruling was based on First Amendment precedent.
Gender-affirming care
On June 20, 2023, a federal judge permanently enjoined an Arkansas law, passed in 2021 over the veto of then-Gov. Asa Hutchinson, preventing transgender minors from receiving various kinds of gender-affirming medical care, including puberty blockers and hormone therapy.
The judge held that Arkansas’ law violated the Fourteenth Amendment’s equal protection clause – which ensures laws are applied equally regardless of social characteristics like race or gender – because the law discriminated on the basis of sex.
Arkansas claimed its law was passed in order to protect children and to safeguard medical ethics. The judge agreed that these were legitimate state interests, but rejected Arkansas’ claim that its law furthered those ends.
The judge also held that Arkansas’ law violated the First Amendment free speech rights of medical care providers because the law would have prevented them from providing referrals for gender transition medical treatment.
During June 2023, federal judges in Florida and Indiana granted temporary injunctions against enforcement of similar state laws. This means that these laws cannot be enforced until a full trial is conducted – and only if that trial results in a ruling that these laws are constitutional.
Jeremy Hogan/SOPA Images/LightRocket via Getty Images
Free speech for the LGBTQ community
In striking down these unconstitutional state laws on First Amendment grounds, many judges went out of their way to reinforce the point that freedom of speech protects views about sexual orientation and gender identity that may be unpopular in conservative areas.
In his ruling on the St. George, Utah case, U.S. District Judge David Nuffer stressed that “Public spaces are public spaces. Public spaces are not private spaces. Public spaces are not majority spaces. The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression.”
Nuffer also noted that “Public officials and the city governments in which they serve are trustees of constitutional rights for all citizens.” Protecting the constitutional rights of all citizens includes protecting the constitutional rights of members of the LGBTQ community and of other gender-nonconforming people.
Free speech rights also extend to those who want to use speech in order to help promote the well-being of LGBTQ people. In ruling that Arkansas’ law violated the First Amendment, Judge Jay Moody stated that the state law “prevents doctors from informing their patients where gender transition treatment may be available” and that it “effectively bans their ability to speak to patients about these treatments because the physician is not allowed to tell their patient where it is available.” For this reason, he held that the law violated the First Amendment.
As additional anti-LGBTQ state laws are challenged in court, judges are likely to continue to use the First Amendment to show how such laws fail to respect Americans’ fundamental free speech rights.
Mark Satta is Assistant Professor of Philosophy at Wayne State University.
Ed says
Once again, isn’t the big question that if 7 percent of the entire population identifies as gay/trans, then why does 21 percent of the gen z (9-24) population identify as gay/trans?
What changed? Why the 3 fold increase seemingly overnight? Doesn’t that deserve some investigation or explanation?
Skibum says
First of all, you are trying to compare apples to oranges with your “stats” above, and who knows where your information came from. But regardless, you can have a larger percentage from a specific demographic, say gen z, but at the same time if you compare that same demographic to the entire population there is no reason to believe the percentage would remain the same. The larger issue is that there are for sure many, many more who are gay than what any reputable survey would show because, just as was true for me for a large portion of my life, I was in the closet and did not tell ANYONE that I was gay, particularly due to the fact that I was employed in law enforcement during the 70s and 80s when it was not okay to be “out” and I did not want to lose my career. Even though there has been a monumental shift in society’s overall acceptance in today’s world, that is not always the case in each gay person’s personal experience, and there are many who still prefer to keep that part of themselves quiet. But what difference does it make to anyone whether the true percentage is 3%, 21%. 0r 30%??? Courts are striking down these draconian GOP laws left and right because they are viewed as either unconstitutional, irrational, immoral, or all of the above. Shouldn’t gay citizens be afforded the same rights and protections as heterosexuals?
Toto says
Ed, it’s called “coming out”….. of the closet that is.
Ban the GOP says
Sure heres an explaination “the stigma has been reduced”. Back in the day parents would disown their kids, employers would terminate them, they were ridiculed, made fun of, and provided lots of incorrect propaganda like the aids issues back in the 90s. Gays were beat up simply for being gay, fast forward to today. Still plenty of hate from so called religious conservatives. But fortunately we have some level of freedom from religions and so younger people are more likely accept others for who they are while the older people want everyone to be like them. So over time being gay desnt come with the same hate as it did before even though espcially from republicans lately they want to ramp up the hate on this group to follow in their fuhrers footsteps of eliminating gays, as thats the group Hitler went after first too.
You see when people can accept others for who they are they dont need to try an conceal their identity or who they are simply because magats dont like them. Well unless your in Florida haha then what ever wanna be dictator ron says goes as they stacked the offices, removed any oppostion and sheep watch only faux news and use the talking points daily llike the one you are trying to say.
Ed says
Ban the GOP,
Just one more question.
Do you really believe that people( conservatives- religious or not, republican-conservatives or moderate) are actually following a nazi manifesto?
I just don’t comprehend how you believe you know what’s in my heart or my motives or that I watch fox. Let’s do lunch, I’ll buy, my treat.
Ban the GOP says
You are correct I dont know whats in your heart or mind but its easy to spot who you support. There are common themes among fascist movements. History doesnt repeat itself but it does rhyme. Have you seen the uptick in hate and divisiveness?
Why arent the republicans denoucing nazis and white supremecy , or the many other right wing extremist groups? Why do they always want to make it harder for people to vote? Why do they sabatoge social programs? Why do they attack companies like Disney who only said they didnt agree with divisive laws? Why are they against diversity, equity and inclusion? What happened to republicans with some class like a John Mccain ? and finally, do you think whoever the republican nominee is will declare victory no matter what like in the last presidential election? As its not like they need more votes to win.
” As long as the government is percieved as working for the benefit of the children, the people will happily endure almost any curtailment of liberty and almost any deprivation. “- Adolf Hitler
ron defurher stongly agrees.
I wouldnt say modern republicans are the same as the old fascist party but the gap seems to be quickly closing. I get extreme views sells in America and gets people fired up. But we should all demand more from these “leaders” and only choose people that can bring people together to solve problems not attack all opposition and thats going to require less extreme candidates.
Ed says
So lunch is a no?