LGBTQ+Law: Progress, Setbacks

Don’t Mess with California: Supreme Court Tells Texas to Sit Down

I recently read a tweet by the Human Rights Campaign that basically said there were more than 250 anti-LGBTQ+ bills moving through legislation nationwide. And that over 125 of those bills were targeting the transgender community and that eight could become law at any moment. As sad as this is, I was hoping there were some bright spots out there. Are there?

— H. Jordan, Emeryville 

Dear H. Jordan: Unfortunately several states have introduced legislation related to LGBTQ+ discrimination. Some legislation will try to remove anti-discrimination laws that LGBTQ+ people really need, while others will single out and target LGBTQ+ people for unfair and unequal treatment. The burning question is what can be done to try and stop, or at the very least, limit the effects of these discriminatory laws that have been promoted under the guise of “religious liberty.”

Believe it or not, California has crossed state lines in an attempt to curtail such legislation by barring state-funded travel to states deemed to be attempting to limit the rights of the LGBTQ+ community. The measure (which has now expanded to 12 states) prevents California agencies, public universities and boards from funding work-related trips to Texas (and now other states) that have laws that are deemed discriminatory. This measure was enacted after the Texas Legislature moved to allow foster care agencies to use religious liberties as a reason to deny same-sex couples the right to foster children. At the time, then-California Attorney General Xavier Becerra said the law, “allows foster care agencies to discriminate against children in foster care and potentially disqualify LGBT families from the state’s foster and adoption system,” and that, “[d]iscriminatory laws in any part of our country send all of us several steps back. That’s why when California said we would not tolerate discrimination against LGBTQ members of our community, we meant it.” 

In response, Texas Attorney General Ken Paxton sued California in 2017 claiming the measure violated the U.S. Constitution’s commerce clause by discriminating against interstate commerce and called the California law an effort “to punish Texans for respecting the right of conscience for foster care and adoption providers.” According to a brief filed, “California’s travel ban is an affront to the sovereignty of Texas — as well as the ten other States that California has blacklisted.” The brief also argued the California ban shows “religious animus” toward Texas. 

The lawsuit, which was filed directly at the U.S. Supreme Court level (which is allowed when there are disputes between states) was supported by 19 states, who wrote briefs backing Texas. Despite the prior administration’s urging to have this case heard, in a 7-2 decision and without explanation, the Supreme Court turned the case away and denied Texas’ request to file a complaint. This means California may continue with its ban. This refusal to accept the complaint is significant, given that the potential conflict between gay rights and religious freedom has become a central theme at the nation’s highest court, which now has an ostensible 6-3 conservative majority.

However, California is not the only one fighting back against anti-LGBTQ+ legislation; according to the Texas Tribune, business leaders in Texas have cautioned the state that these laws could be harmful to both Texans and to the state’s economy, which is still recovering from the recession that accompanied the pandemic. Recently, members of the business group Texas Competes (made up of more than 1,400 Texas employers, business and tourism groups and backed by big-tech companies such as Hewlett Packard) identified numerous bills that they say will infringe on LGBTQ+’s rights, “tarnish Texas’s welcoming brand,” and hurt local businesses including the tourist industry.

“Businesses big and small and economies thrive on certainty,” says Jessica Shortall, the managing director of Texas Competes. “What we’re faced with again this year is the uncertainty of whether discriminatory policies will rear their heads and cause all of the problems you’ve heard from our business speakers.”

According to the Human Rights Campaign, more than 90 major U.S. corporations have spoken out in opposition to anti-transgender legislation being proposed in states across the country. Some of the more concerning bills deal with both youth and collegiate sports. One bill, which would have prevented public school athletes from participating in school sports unless their team designation was inline with their sex assigned at birth, recently was defeated in Texas.

The NCAA (National Collegiate Athletic Association) Board of Governors released a public letter stating that it, “firmly and unequivocally supports the opportunity for transgender student-athletes to compete in college sports.” Moreover, “When determining where championships are held, NCAA policy directs that only locations where hosts can commit to providing an environment that is safe, healthy and free of discrimination should be selected.” Currently, Texas is scheduled to host several events, including the 2023 Women’s Final Four in Dallas and the 2024 College Football Playoff National Championship game set for Houston. If the NCAA were to deem Texas one of those states, Texas would stand to lose out on nearly $1 billion in economic benefits. This warning by the NCAA puts not just Texas, but another 29 states on notice that if they elect to move forward with discriminatory legislation, the NCAA will act.

The steps being taken are not perfect and will not stop all of the anti-transgender legislation in the works (Tennessee Gov. Bill Lee has signed similar bills, one recently, which Nashville’s top prosecutor said he will not enforce.) As long as there are people and entities willing to stand up, there always will be bright spots.

Christopher B. Dolan is the owner of the Dolan Law Firm, PC. Jeremy M. Jessup is a Senior Trial Attorney based in our San Francisco office. We serve clients throughout the San Francisco Bay Area and California from our offices in San Francisco, Oakland and Los Angeles. Email questions and topics for future articles to:

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