USA: Tennessee legislature passes bill criminalizing adults aiding minors in receiving gender-affirming care

The Tennessee House of Representatives approved a bill on Thursday that criminalizes adults who knowingly take minors away from Tennessee to help them receive gender-affirming medical procedures without the consent of their parents.

The companion bill was introduced to the Tennessee House of Representatives on January 29, 2024 as HB 2310 by Representative Bryan Richey and to the Tennessee Senate on January 31. Senator Janice Bowling introduced SB 2782 in the Senate. The bill originally allowed parents to sue any adult who “knowingly remove a minor from [Tennessee] without the consent of a parent of the minor” for the purpose of aiding the minor to receive medical procedures for making the minor better able to identify with a sex they are not.

Since then, however, the Senate and House have both added their own amendments to the bill. The Senate’s amendment added that in a civil action based on violating the bill, “[The] plaintiff may recover from the person: (A) Compensatory damages; (B) Punitive damages; and (C) Reasonable attorney’s fees, court costs, and expenses.” It also made violating the bill a Class C felony, which has the sentencing range for a first-time offender as three to six years imprisonment and, for a repeat offender, can be as high as 10 to 15 years imprisonment. The House’s amendment most notably added that the “common carrier transporting passengers for hire” as part of their business activities are exempt from the bill.

The Senate initially rejected the House’s amendment. In order to resolve their dispute, both the Senate and House appointed their own Conference Committees. Both committees ended up approving the bill and its amendments, with the Senate having a 2-1 vote and the House having a 3-1 vote.

According to The Tennessee Conservative, Richey stated that the bill is simply a “parents’ rights bill.” Tennessee advocates for Planned Parenthood see the bill as an unconstitutional attack on personal autonomy. Planned Parenthood went on to say:

[T]he exclusion of the term ‘legal guardian’ and inclusion of only the consent of ‘a parent’ poses the likely possibility that this bill would disproportionately impact youth who do not have parents or accessible parents, youth who likely are members of multiple marginalized identities and facing heightened social and health inequities.

The bill now awaits approval from the Tennessee Governor Bill Lee for the bill to become law in the state.

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USA: Alabama legislature advances bill that restricts books ‘harmful to minors’ in public libraries

The Alabama House of Representatives voted 72-28 to pass HB 385, which prohibits public libraries from providing materials that are “harmful to minors” or “obscene.” The bill, which passed on Thursday, will now go to the Alabama Senate.

Under the bill, it is a public nuisance for public libraries to provide obscene or harmful materials to minors. The bill defines harmful to minors as appealing “to the prurient interest of minors,” describing or depicting sexual conduct or lacking “serious literary, artistic, political, or scientific value for minors.” Additionally, the bill defines obscene as appealing “to the prurient interest,” depicting or describing sexual content in a “patently offensive” way or lacking “serious literary, artistic, political,
or scientific value.”

Generally, a public nuisance refers to any conduct that interferes with the rights of the public and is usually enforced by a state attorney general. Under HB 385, the state attorney general or district attorney can sue for violations. Additionally, if municipalities pass authorizing legislation, county or municipal attorneys may also enforce the law. 

The bill also removes the public library exemption from the state’s criminal obscenity laws. However, the bill keeps the exemption for college and university libraries. If HB 285 is passed into law, public librarians could be guilty of misdemeanors for violating the state’s criminal obscenity provisions.

The US Constitution’s First Amendment does not protect obscene language. This means that state governments are free to pass laws that limit obscene speech. In the US Supreme Court case Miller v. California, the court used a three-prong test to determine if language is obscene. Under this test, courts look first at whether “the average person, applying contemporary community standards” would find that the work, “taken as a whole,” appeals to “prurient interest.” Next, the courts look at whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. Lastly, courts look at whether the work, “taken as a whole,” lacks serious literary, artistic, political or scientific value.

Alabama is not alone in passing legislation that restricts public libraries from providing harmful materials to minors. Earlier this month, the Idaho Senate approved House Bill No. 710, which declares that a school or public library shall not promote or make available any conduct that is deemed harmful to minors. Additionally, last month, the American Library Association announced that censorship demands and book ban attempts in public libraries and schools hit a record high in 2023.

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Hungary tightens homosexuality law

The Hungarian government has tightened the controversial law aimed at keeping minors away from homosexuality and transsexuality. The ban will now not only affect books, magazines and films, but also toys such as dolls and Lego bricks, as reported by Hungarian media critical of the government.

More: https://www.krone.at/3349567

Council of Europe: Anti-torture annual report: Rights of transgender prisoners in focus

The Council of Europe’s Committee for the Prevention of Torture (CPT) has issued a set of standards and recommendations to European prisons aimed at ensuring that transgender prisoners, a highly vulnerable segment of the prison population, are treated with respect and protected from the risks of ill-treatment

More: https://www.coe.int/en/web/portal/-/anti-torture-annual-report-rights-of-transgender-prisoners-in-focus

Dominican High Court overturns law criminalising same-sex relations

Dominica’s High Court has overturned the country’s ban on consensual same-sex activity, which dates back, in part, to colonial times.

More: https://www.thepinknews.com/2024/04/23/dominican-high-court-overturns-law-criminalising-same-sex-relations/

Trans Women May Actually Face Several Disadvantages in Athletic Competition, Study Finds

A new study funded in part by the International Olympic Committee cautions against blanket bans on trans athletes.

More: https://www.them.us/story/trans-women-disadvantages-athletic-competition-study

Trans Wrestler Nyla Rose Competed Against a Cis Wrestler. The State of Oklahoma Lost It

The Oklahoma State Athletic Commission issued a formal warning that misgendered Rose and reprimanded her for violating rules that prohibit athletic competitions “between males and females,” as defined solely by chromosomes.

More: https://www.them.us/story/trans-wrestler-nyla-rose-competed-against-cis-wrestler-oklahoma

USA: New Title IX regulation provides protections against discrimination for 3.6 million LGBT students

See: https://www2.ed.gov/about/offices/list/ocr/docs/t9-unofficial-final-rule-2024.pdf

See also: https://www.them.us/story/bidens-title-ix-rules-lgbtq-students-not-trans-student-athletes

USA: West Virginia’s Trans Sports Ban Discriminates Against Trans Teen, Appeals Court Rules

See: https://www.them.us/story/west-virginias-trans-sports-ban-discriminates-trans-teen-appeals-court-ruling

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The US Court of Appeals for the Fourth Circuit ruled on Tuesday that West Virginia’s ban on transgender girls competing on girls’ sports teams violates a transgender student’s rights under Title IX.

The law, which is known as the “Save Women’s Sports Act,” prohibits individuals who were assigned male at birth from competing on girls’ athletic teams. The act also says, however, that it shall not be “construed to restrict the eligibility of any student to participate in any… teams or sports designated as ‘males,’ ‘men,’ or boys.’” The court therefore found that the law prohibits only one category of students, transgender girls, from participating in sports teams that correspond with their gender.

The plaintiff, a 13-year-old transgender girl named Becky Pepper-Jackson, filed suit against the West Virginia State Board of Education in 2021. She claimed the act violated her right to equal protection under the Fourteenth Amendment as well as her rights under Title IX, a federal law that prohibits discrimination on the basis of sex in federally-funded educational programs.

The court found for the plaintiff on the Title IX claim, stating the plaintiff demonstrated that “applying the Act to her would treat her worse than people to whom she is similarly situated, deprive her of any meaningful athletic opportunities, and do so on the basis of sex.”  The court stated, “‘[E]motional and dignitary harm… is legally cognizable under Title IX’ and it requires no feat of imagination to appreciate the ‘[t]he stigma of being’ unable to participate on a team with one’s friends and peers.” The ruling also stated that the act “goes further by requiring [the plaintiff] to take on additional harms to avoid forfeiting the ability to play school sports altogether.” Provided that the plaintiff has been publicly living as a girl for more than five years, changed her name and sex on her birth certificate, takes puberty-blocking medication, and has only participated on girls’ sports teams, the court found that “offering [her] a ‘choice’ between not participating in sports and participating only on boys teams is no real choice at all” and would “directly contradict the treatment protocols for gender dysphoria.”

The court declined to overrule the law or prohibit government officials from creating and drawing the line between separate teams for boys and girls. The ruling stated, “We also do not hold that Title IX requires schools to allow every transgender girl to play on girls’ teams, regardless of whether they have gone through puberty and experienced elevated levels of circulating testosterone.” The court also reversed the lower court’s decision that found in the defendants’ favor on the equal protection claim and sent that issue back to the lower court.

West Virginia Governor Jim Justice signed the bill into law in April 2021, and the American Civil Liberties Union (ACLU), the ACLU of West Virginia, and LGBTQ+ rights group Lambda Legal filed suit on behalf of the plaintiff a month later. Legal Director of the ACLU of West Virginia Aubrey Sparks celebrated the court’s ruling, stating, “We hope today’s ruling sends a message of hope to the trans youth of West Virginia… and a message of warning to politicians who continue to dehumanize this vulnerable population.”

West Virginia Attorney General Patrick Morrisey, however, said he planned to appeal the ruling. He stated, “We must keep working to protect women’s sports so that women’s safety is secured and girls have a truly fair playing field.”

West Virginia is one of 24 states that ban transgender students from participating in sports consistent with their gender identity. In January, the Ohio legislature overrode the governor’s veto of a bill that would restrict transgender participation in sports, but an Ohio court temporarily blocked that ban on Tuesday. Earlier this month, Wisconsin Governor Tony Evers vetoed a bill that would require schools to separate sports based on students’ assigned sex at birth.

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US Supreme Court allows Idaho gender-affirming care ban for minors to go into effect

The US Supreme Court granted an emergency request for stay led by Idaho officials, allowing the state to temporarily enforce a statewide ban on gender-affirming care for certain minors. This ban is one of the first cases related to transgender health care to reach the nation’s highest court. Labrador v. Poe is the case that challenged the law enacted in Idaho last year, which prohibits treatments such as puberty blockers and hormone therapy for transgender minors.

Under the new law, physicians who provide gender-affirming care to transgender children could face up to 10 years in prison and up to $5,000 in fines. While the law can now be enforced statewide, it cannot be applied against the two plaintiffs who challenged it. Often, emergency docket decisions do not include reasoning. However, this 34-page decision included concurrences by Justices Neil Gorsuch, Samuel Alito, Clarence Thomas, Brett Kavanaugh and Amy Coney Barrett. 

The court’s written opinion emphasized that this case poses a question about “the propriety of universal injunctive relief, a question of great significance that has needed the Court’s attention for some time.” In other words, the Ninth Circuit granted relief to the plaintiffs and additionally decided the Idaho law’s enactment was to be halted. The Supreme Court ruled this was an overstep of the lower court’s authority. The court’s three liberal justices, Ketanji Brown Jackson, Sonia Sotomayor and Elena Kagan, objected to this decision, arguing that the law should have remained entirely blocked and that it was the natural order of a case to be challenged and move through the lower courts appropriately. 

The state of Idaho and its Attorney General Raul Labrador argue that “Every day Idaho’s law remains enjoined exposes vulnerable children to risky and dangerous medical procedures and infringes Idaho’s sovereign power to enforce its democratically enacted law.” The state says that since the plaintiffs both want access to a single procedure, it is unfair that the Ninth Circuit’s injunction applies to all 20+ procedures that the Idaho law regulates as they are two minors and their parents, and the injunction covers 2 million. 

The plaintiffs, two transgender teenagers whose identities are protected, argue that the law violates the Equal Protection Clause of the Fourteenth Amendment to the US Constitution, enforceable under 42 U.S.C. § 1983, which protects individuals and groups from discrimination by the government. The brief for the teens cites that the new law does not ban cisgender boys who are forecasted to have a post-pubertal height of 5’4″ or shorter as they may be treated with testosterone for “short stature.” Idaho doctors are thus free to prescribe testosterone to cisgender boys, including to affirm cisgender boys’ gender identity with overdeveloped breast tissue. Similar differences are allowed for cisgender girls to receive estrogen for specific delayed puberty issues. Thus, counsel argues that the law has “nothing to do with protecting children and everything to do with expressing disapproval of, and stigmatizing transgender people.”

This case is part of broader state jurisprudence across the country, with more than 20 conservative states enacting similar bans targeting care for transgender youth. This spring, appeals concerning similar laws in Tennessee and Kentucky will be up for consideration by the justices.

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