As LGBT equality continues to make historic gains with almost no resistance from GOP leaders and potential 2016 contenders, Republican lawmakers at the state and local level are pushing legislation that threatens to undo the movement’s progress.
Much of that action is taking place in deeply conservative states, like Mississippi, where officials this week repealed the first-ever city resolution recognizing the dignity of its LGBT citizens. But some of it is also happening in more surprising places, like Maryland, where the newly sworn-in Republican governor began his term this week by withdrawing regulations that would have prohibited Medicaid providers from discriminating on the basis of sexual orientation or gender identity.
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Republicans championing such efforts say they are doing so to protect the will of the people, who voted overwhelmingly in the November midterm elections to move the country in a more conservative direction. Others fear new rights and protections for the LGBT community will unfairly punish people for their religious beliefs. But whatever the reason, a pattern is clearly emerging — if LGBT equality takes one step forward, Republican-controlled legislatures will be there to take one step back.
One of the most contentious bills to appear this session comes out of Kentucky, where Republican state Sen. C.B. Embry Jr. has proposed a measure to keep transgender students out of the facilities associated with their gender identities.
Senate Bill 76, also known as the “Kentucky Student Privacy Act,” would require school policies regarding male and female bathroom, locker room, and shower use to center on the gender students were assigned at birth. Transgender students, who identify with a different gender than that which they were assigned at birth, would be restricted to using special facilities, like a unisex or faculty bathroom. The bill would also allow any student who encounters a transgender person in the wrong restroom to sue the school for up to $2,500 for “all psychological, emotional and physical harm suffered.”
Embry could not be reached for this story. But Kent Ostrander, director of the Family Foundation of Kentucky, which supports the legislation, said the bill was a matter of privacy, not discrimination.
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“Most parents of, say, a 14-year-old high school daughter would not want a 17-year-old biological male in the same restroom with her,” Ostrander told msnbc. “That is not an accusation about the individual male; it’s just a matter of privacy. And the right of privacy in America has always been, and is, particularly strong in this generation.”
In April, the U.S. Department of Education released guidance stating that Title IX — the law that prohibits sex discrimination in federally funded education programs and activities — also bars discrimination on the basis of gender identity. The Justice Department later officially expanded its legal definition of sex discrimination, as prohibited by Title VII of the 1964 Civil Rights Act, to include discrimination based on gender identity as well. Numerous court decisions have come to the same conclusion.
Based on those developments, at least one Kentucky school — Atherton High School in Louisville – had adopted a policy allowing any student to use the facility associated with his or her gender identity. Thomas Aberli, the school’s principal, said he was “disappointed” with Embry’s bill.
“I haven’t had a single parent complain to me this school year,” Aberli told msnbc of the school’s transgender policy. As for the parents who initially expressed concern, he said, “most of them came to an understanding of why we made the decision, and felt comfortable their children would be safe and respected in every area of the school.”
Aberli said the policy received similar support from the students. But Ostrander of the Family Foundation heard otherwise.
“We had gotten a call from someone working with parents at Atherton who were deeply concerned about the new policy,” he said.
Proposals are popping up in other states as well to push back on certain advancements for LGBT equality. Michigan and Indiana both have controversial Religious Freedom Restoration Acts (RFRAs) pending in their legislatures, and stoking concerns that those states could soon allow religiously-motivated discrimination. In Oklahoma, one of the most conservative states where gay and lesbian couples can legally wed, a Republican lawmaker has introduced legislation that would take away the power of judges to preside over weddings, giving it solely to religious officials.
In South Carolina, another deeply red state where marriage equality recently became legal, Republican lawmakers have introduced four new bills designed to make it more difficult or outright impossible for same-sex couples to wed. One of those measures — House Bill 3022 — would prohibit taxpayer dollars from going to government employees who license marriages between gay or lesbian couples. Another, Senate Bill 116, would allow government employees to refuse to grant same-sex couples marriage licenses based on the employee’s religious objections. A third, House Bill 3150, would prohibit state officials from penalizing individuals who refuse to provide goods or services related to a same-sex marriage. And Senate Bill 31 would call for a convention of the states to amend the U.S. Constitution so that it defined marriage as a union between one man and one woman — something that Congress has never been able to accomplish even when anti-marriage equality fervor hit its peak around a decade ago.
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“Absent the will of the U.S. Congress to propose this amendment, then it is up to the states,” Republican state Sen. Larry Grooms, the primary sponsor of SB 31, told msnbc. “This is probably the only mechanism left to uphold the will of the people in South Carolina.”
On the flip side, Democratic lawmakers in South Carolina are pressing forth with legislation aimed at removing barriers for same-sex couples. House Minority Leader Todd Rutherford and Democratic Rep. Gilda Cobb-Hunter have introduced two such measures — one that would remove the state’s ban on same-sex marriage from South Carolina’s Constitution, and another specifying that married gay and lesbian couples could jointly file state income taxes.
When asked if her bill to delete South Carolina’s same-sex marriage ban stood any chance at becoming law in the deeply Republican state, Cobb-Hunter laughed wildly for a few seconds before saying that in fact, it did not.
“The prospects are not very good in the current climate,” she told msnbc. “But that doesn’t mean it shouldn’t be tried. And so we’re trying.”
South Carolina and — as of late Friday — Alabama are the only states in the Deep South where gay and lesbian couples can legally wed. But more could be on the way. In Texas, where a federal appeals court seems poised to strike down the ban on same-sex nuptials, Republican lawmakers have already introduced legislation that would curtail marriage rights for gay and lesbian couples. House Bill 623 (much like South Carolina’s H.B. 3022) would prohibit taxpayer funds or government salaries from going to any official who licenses or supports a same-sex marriage.
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“State sovereignty is alive and well,” Republican state Rep. Cecil Bell, the bill’s sponsor, told msnbc. “We believe that Texans should decide on our value system; we also believe that we should decide where we spend our money.”
Texas lawmakers also have plans for measures that would make it easier to discriminate against members of the LGBT community — not just in marriage, but in virtually every aspect of a person’s life. One bill would enshrine Texas’ existing Religious Freedom Restoration Act, which critics view as a “license to discriminate” on religious grounds, into the state’s Constitution. Another, not yet introduced, would nullify local nondiscrimination laws that have been passed in cities like Plano and Houston in the absence of federal or statewide protections for LGBT people.
“The objective is to create a uniform standard across the state,” said Texas Pastor Council Executive Director David Welch, who’s working to introduce legislation banning municipal equal rights ordinances this session. Local nondiscrimination laws, he continued, “are solutions looking for a problem.”
“They’re part of a basic effort to simply legitimize sexual behavior and gender confusion in law that trumps the fundamental beliefs and freedoms of people who may not agree that those things are equal to race and religion,” said Welch. Members of the LGBT community, he added, “are very privileged as a class economically, they’re highly educated, and there simply is not any evidence of the level of discrimination that would justify such a punitive policy at the local level.”
Emma Margolin
Emma Margolin is a reporter at MSNBC.com.