United States of hate: mapping backlash Bills against LGBTIQ+ youth

ABSTRACT

Following the recent proliferation of anti-discrimination protections supporting LGBTIQ+ youth internationally, backlash periods have ensued. Whilst liberal-progressive rights models theorise ‘backlash’ as an expected consequence of rights recognitions progress, some post-colonial and Queer scholars frame backlash within enduring authoritarian anti-rights tendencies, and question assumptions of progress. To understand backlash more adequately, this paper explores state-level anti-LGBTIQ+ Bills potentially impacting youth proposed in the USA between 2018 and 2022. Critical discourse analysis is used to map the different types, locations, conceptual arrangements and outcomes of 543 anti-LGBTIQ+ rights US state-level proposed Bills. Bill attempts were mainly concentrated in Republican-governed states including Tennessee (48), Missouri (40), Iowa (39), Oklahoma (32) and Texas (32). Overly extended claims concerning girls/women’s religious and parental rights were advanced in opposition to LGBTIQ+ youth rights, and as part of wider rights attacks. Bills used anti-rights and pro-rights discourses to mask as ‘backlash’ the rights claims advanced by elite-led anti-rights mobilisations.

KEYWORDS:

• Gender
• sexuality
• law
• education
• health
• identity

Introduction

The late 2010s saw a proliferation of anti-discrimination protections for lesbian, gay, bisexual, transgender, intersex and queer/questioning (LGBTIQ+) students internationally (UN Secretary-General 2011; UNESCO 2016, 2017). In the USA, and under Title IX (US Department of Justice 2016; US Government 2016), the Obama Administration enabled changes to sex classifications on identity documents (US Department of State 2009); anti-discrimination protections (US Department of Defense 2016; US Department of Labor 2015) and education access supportive of people of diverse gender identities and sexual orientations.

Backlash followed (Jarkovska 2020; Jones 2017), with the US Trump Administration dismissing LGBTIQ+ Liaison Officers and appointing anti-LGBTIQ+ figures to education posts (Smith 2017). The Trump Administration also repealed various LGBTIQ+ non-discrimination protections by Twitter (Phillip, Gibbons-Neff, and Lamothe 2017), parading legislative attacks on minorities as socio-cultural battle ‘wins’. The President personally rescinded Title IX transgender and gender diverse (TGD) student protections, devolving their jurisdiction to individual states (US Department of Justice 2017). Transgender and gender diverse (TGD) students and advocates fought repeals in protected states (Trotta 2017), however school discrimination loopholes opened up in states lacking or repealing local protections (Drake 2017). US-based evangelical Christian organisations have further supported international attacks on LGBTIQ+ student protections (Parke 2016; Smith 2017).

In 2021, the Biden Administration sought to protect LGBTIQ+ student rights from state repeals and backlash. Biden issued an executive order extending US presidential intervention trends concerning LGBTIQ+ students’ rights:

Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports (…) no matter their gender identity or sexual orientation. (Biden 2021)

As 2022 ended, the Biden Administration devised legislation to protect marriage equality from Supreme Court repeals and revive state anti-discrimination bans (Biden 2022). Nonetheless, the development of US state-level anti-LGBTIQ+ youth and family Bills between 2018 and 2022 requires consideration, given likely further US Supreme Court and state attacks on LGBTIQ+ rights, with international legislative trends echoing the same patterns (Parke 2016; Smith 2017). This paper begins to review the literature on backlash before seeking to understand the ways in which LGBTIQ+ subjects are represented in bill texts and reporting on a study of US state-level anti-LGBTIQ+ backlash Bills.

Framing rights ‘backlash’

Research demonstrates how the legislative landscapes affecting LGBTIQ+ students have real-world impacts. Australian student surveys, for example, have demonstrated how state law protections of LGBTIQ+ students increased their school-level policy safeguards (Jones 2020). Both levels of protection were associated with highly significant reductions in bullying reports and suicide attempts for LGBTIQ+ students (Jones 2020). The US research has also found an association between LGBTIQ+ students’ state law protections and school districts’ increased recommendations or requirements for the establishment of gay-straight alliance (GSA) student support groups and decreased LGBTIQ+ student health risks (Harper et al. 2022). US legislative campaigns’ parallel international funding and outreach efforts for and against LGBTIQ+ student rights have also influenced other countries’ laws (Jones 2017). However, the way in which anti-LGBTIQ+ student rights backlash is understood varies by how ‘backlash’ is theorised.

Temporary or structural?

Dominant liberal-progressive theories and the models of human rights progress advanced by democratic humanists presume a progressive increase of rights in democratic societies. They posit that, with the growth of ‘civilising’ structures including democratically elected representative governments, and an independent judiciary committed to recognition of human rights, minority rights will gradually expand (Pinker 2013). In this view, moments of ‘backlash’ are viewed as temporary setbacks to be overcome in an overall trend towards rights expansion, growing empathy and long-term violence decline (Pinker 2013).

Post-colonial and Queer scholars, on the other hand, have been suspicious of such claims to minority rights expansion. Evidence from post-Apartheid South Africa suggests that rights progress is neither natural nor inevitable (Smith 2015). In this context, rights expansions elicited anger alongside claims that new rights fostered ‘immorality’. This was followed by violent campaigns to ‘correct’ the state’s supposed over-expansion of rights protections (Smith 2015). Smith (2015) cites the example of the growth of South Africa’s largest vigilante group Mapogo a Mathamaga, after the country’s transition to democracy. It grew rapidly, preaching a conservative right-wing and religious message rejecting rights on the grounds that they spread sexual immorality.

In a similar vein, some queer theorists have asserted that the global epidemic of HIV, which impacted heavily on transgender communities, stimulated government responses to gender diversity issues that were once relegated to the ‘private’ domain – casting HIV as a metaphor for the globalisation of LGBTIQ+ public awareness (Binnie 2004). Other writers have critiqued Anglo-American narratives of ‘non-hierarchical human rights progress’ seeing neoliberalism as both generative of, and hostile towards, LGBTIQ+ students by authorising restricted types of inclusion for particular LGBTIQ+ sub-groups only; or by advancing limiting Western colonial models of gender and sexual diversity (Binnie 2004; Connell 2014).

Grassroots or elite-led?

Studies in post-Apartheid South Africa, Namibia, Uganda and Senegal have used the terms ‘political homophobia’ and ‘political transphobia’ to describe the anti-LGBTIQ+ animus/backlash associated with right-wing political groups in authoritarian and highly gendered political settings (Currier 2010; Epprecht 2013; Smith 2015). Political homophobia and transphobia have also been used to silence political opposition through fallacious claims about the oppositions’ (and their associates’) gendered or sexual personal lives or policy goals, and to promote controlling policies, campaigns and state policing (Currier 2010; Epprecht 2013). Studies in Turkey have shown how political homophobia and transphobia have been used to tighten restrictions on everyday textual representations and citizens’ lives from the targeting of rainbow clothing through to LGBTIQ+ Netflix television series and websites, using claims about ‘age-inappropriateness’ as an excuse for bans and rescindments (Altay 2022). In China, left-wing authoritarianism has triggered anti-LGBTIQ+ restrictions, framing online LGBTIQ+ student group content or affiliative engagement, as ‘unhealthy’ in efforts to limit civilian political engagement (China National Standardization Administration Commission 2022).

Backlash against LGBTIQ+ student protections in Europe and the West has similarly involved a combination of political homophobia and transphobia from religious (especially Christian evangelical) movements (Mohler 2017; Richter 2018). It has included campaigns against ‘gender ideology’ and anti-transphobic education (Jarkovska 2020), the political use of moral panics concerning marriage equality impacts (Copland and Rasmussen 2017), and social media meme campaigns enhancing existing anti-LGBTIQ+ education and anti-democratic sentiments (Jarkovska 2020).

In the USA, openly-LGBT US state legislators advanced a number of LGBT-related protection Bills between 1992 and 2002, triggering anti-LGBT legislative backlash despite net gains (Haider-Markel 2007). Research has shown that the diffusion of state-level same-sex marriage bans is best explained by conservative religious political and media elite coalitions’ nationally organised, top-down, well-funded campaigns expanding into state-jurisdictions (Haider-Markel 2001). Such ‘elite-led mobilisations’ have sought to diminish citizen rights broadly whilst presenting themselves as bottom-up local citizen ‘anti-LGBTIQ+ backlash’, ignoring citizens’ overall increased support for LGBTIQ+ rights (Bishin et al. 2016, 2020, 2021).

Backlash can thus be framed in contradictory ways, obscuring political processes motivating and mobilising anti-rights opposition. Overlaps between anti-LGBTIQ+ student controls, anti-democratic authoritarian turns in governance (both right- and left-wing), and bottom-up and top-down mobilisation, thus demand investigation.

Theorising LGBTIQ+ youth in Bills

Foucault, Fairclough and Butler – among others – have viewed enquiry into sexuality and sexual diversity as a means to better understand discourses of knowledge/power and their underpinnings (Butler 2004; Fairclough 1989). Foucault argues that state institutions propagate manifold and opposing discourses to construct the very ‘sexual subjects’ they most repress, making LGBTIQ+ subjects intelligible via a ‘tactical polyvalence’ of discourses in favour of repression (Foucault, 1976, pp. 155+). Thus, Ban Bills attempting to suppress or punish LGBTIQ+ identities make LGBTIQ+ people more visible through their negations. Butler’s work complements that of Foucault in certain respects, arguing that the ostensible ‘obviousness’ of sex as a natural biological ‘fact’ reveals how potently its discursive production has been obscured (Butler 2004). LGBTIQ+ identities when debated, provide angles through which the ‘obviousness’ of sex/gender constructions becomes questionable. This study aims to uses LGBTIQ+ subject positions in anti-LGBTIQ+ youth Bills as points for ‘seeing’ discourses and their functions (2004). LGBTIQ+ youths’ conditions of recognition in law are what can make bodies ‘un/liveable’ (Butler 2004).

The study understands Bills and policies as mobilising specific discourses through their texts and processes (Ball and Exley 2010). Inspired by Foucault’s (1976) work on the discursive aspects of sexuality, it engages with statements in or around ban texts and the subject positions they imply, as dependent on the conditions they are shaped by, and which they in turn shape. Fairclough’s extension of Foucault’s work suggests a threefold model with which to analyse Bill discourses (Fairclough 1989): firstly, through their text in the form of law, policy and code statements; secondly, through the discursive processes by which the ban was developed; and thirdly in terms of social practice with respect to the ban’s production and interpretation (Figure 2). Whilst the main focus of this study is on the Bills themselves, their interpretation is socially situated within the backlash-related conditions of their production. More specifically, this study asks:

• What state-level anti-LGBTIQ+ Bills emerged in the USA between 2018 and 2022, and what was their framing of LGBTIQ+ students?

• What trends can be seen across these Bills’ conceptual framings/functions?

Methodology and methods

An emancipatory approach was adopted in the study, seeking to support the rights and perspectives of LGBTQI+ youth so as to aid future actions on their behalf (Mertens 1998). Critical Discourse Analysis (CDA) was used to analyse publicly available state-level House Bills and files and Senate Bills and files in any US state containing provisions that sought to diminish LGBTIQ+ youth rights to non-discrimination. The analysis focused on 50 US jurisdictions (excluding Puerto Rico and the District of Columbia/Washington DC). Extensive searches were conducted of 50 states’ senate, house and proposed Bills as detailed on state government and related party websites. The American Civil Liberties Union (ACLU) website and databases were also searched.

Proposed draft Bills that classed as potentially diminishing LGBTIQ+ youth rights (anti-LGBTIQ+) were downloaded or copy-pasted from these websites for analysis. The analysis was informed by the researcher’s positioning as a cisgender¹ lesbian who has engaged in LGBTIQ+ legislative and policy research for well over a decade, and who has worked with a variety of groups in relevant communities, and was thus in possession of both ‘insider’ and ‘outsider’ expertise (Davis 2015) to judge the potential harms of legislative texts. Proposed state Bills were classified as anti-LGBTIQ+ if they directly or indirectly denied/rescinded or enabled parties (government or non-government bodies, organisations or individuals) to directly or indirectly deny/rescind any LGBTIQ+ sub-group’s rights to non-discrimination.

The CDA worked with aspects of Fairclough’s (1989) model, which is considered to offer a rigorous and valid approach (Ball and Exley 2010). The analysis was descriptive, interpretative and explanatory. It involved a focus not only on texts but also on their context and the social conditions of their production, distribution and consumption. Framing social and cultural practices (Fairclough 1989) were noted from the ACLU website and related state-specific media coverage. The first stage of the CDA sought to describe the texts’ formal features and their meaning. An online supplemental file to this paper provides a tabulation of the proposed Bills, their thematic focus, and stage of development and/or application. The vocabulary, grammar and textual structures of Bills were interrogated using Fairclough’s 10 CDA questions on texts’ vocabulary, grammar and textual structures (Fairclough 1989, listed on pp.110–111 and expanded upon on pp. 112–139).

Findings

Numeric text production trends

543 Bills submitted to US state parliaments between 2018 and 2022 were identified as attempting to restrict the rights of LGBTIQ+ people (see online supplemental file for a full list). The number of Bills increased each year (Figure 1), from 7.9% (43) of the total Bills being attempted in 2018, to 37.2% (202) of them being attempted in 2022. The largest increase took place in 2021, when the total number of Bills submitted more than doubled compared to the previous year.

Figure 1. Fairclough’s ‘social’ model of texts.

The mean number of anti-LGBTIQ+ Bills attempted per state over the five-year period was 10.9 (~2+/yr) and the median was 7. The total number of anti-LGBTIQ+ Bills attempted was lowest in current and recent Democrat-run states (Figure 2), with none being put forward in California, Nebraska, New York, Oregon and Vermont, and only one each in Nevada, Maryland and Maine. The total number of anti-LGBTIQ+ Bills attempted was above 30 in Tennessee (48), Missouri (40), Iowa (39), Oklahoma (32) and Texas (32). Overall attempts at anti-LGBTIQ+ Bills significantly increased in current and recent Republican-run states.

Figure 2. Number of state-level Bills restricting rights of LGBTIQ+ people attempted, by year (2018–2022).

Conceptual text production trends

Transgender and Gender Diverse (TGD) youth rights restrictions

Over 57% (313) of the Bills attempted to restrict TGD young people’s gender identification and expression rights. They included Bills that sought to exclude TGD youth from athletics (29%), healthcare (20%), single-sex facilities (6%), and identification/ID documentation (2%) aligned to their gender identities (Figure 3). These Bill attempts had a precedent in Republican North Carolina Governor Pat McCrory administration’s HB2 (North Carolina Government 2017), officially the ‘Public Facilities Privacy and Security Act’ and known colloquially as the ‘Bathroom Bill’. This had sought to ban bathroom access to TGD youth in line with their gender identities in response to the Obama Administration’s Title IX interpretation order (US Department of Justice 2016; US Government 2016) and the Trump Administration’s later rescindment of that order (US Department of Justice 2017). The HB2 Bill was repealed under Democrat Governor Roy Cooper’s pro-LGBTIQ+ administration in 2017.

Figure 3. Number of state-level bills restricting rights of LGBTIQ+ people attempted, by state (2018–2022).

An example of an athletics ban was the Republican Tennessee Governor Bill Lee’s administration’s HB3/SB288 (Tennessee Government 2021a) amendment to existing Tennessee law requiring a student’s gender, for purposes of participation in a public middle or high school interscholastic athletic activity, to be determined by ‘the student’s sex at the time of the student’s birth, as indicated on the student’s original birth certificate’. This amendment, titled ‘AN ACT to amend Tennessee Code Annotated, Title 49, relative to school sports’, was notably introduced by text citing girls’ rights as being threatened by TGD youth participation:

… it is unfortunate for some girls that those dreams, goals, and opportunities for participation, recruitment, and scholarships can be directly and negatively affected by new school policies permitting boys who are male in every biological respect to compete in girls’ athletic competitions if they claim a female gender identity …

An example of a healthcare restriction passed was Alaska’s HB5 (Alaska Government 2019), officially given a 38-word title beginning ‘An Act relating to sexual abuse of a minor …’, colloquially known as ‘Sexual Assault; Definition of “consent”’. This banned the Department of Administration from providing ‘insurance coverage for a gender reassignment medical procedure’ (p.1). Definitions in these healthcare restrictions were typically broad and vague, sometimes banning non-standard/non-occurring procedures in ways that sought to re-frame them as criminal, or as sexual or child abuse. For example, SB0657/HB0578 (Tennessee Government 2021b), bearing a 35-word title including ‘AN ACT to amend Tennessee Code (…) relative to courses of treatment for children’, prohibited the provision of sexual identity change therapy including hormones and surgery to ‘prepubescent minors’, although this had not hitherto been a standard of care. SB0657 sought to define violations of the law as ‘child abuse’ and the behaviour of offending healthcare professionals as ‘professional misconduct’. Bans criminalising medical intervention were also seen in Arizona, Arkansas and Alabama (with the latter two states’ laws being temporarily blocked after being challenged in court at the end of 2022).

Several states have reportedly pressured schools, hospitals, clinics and professionals providing gender-affirming care to TGD youth to withhold it using both legislation and funding restrictions. Oklahoma authorities, for example, withheld funding to the University of Oklahoma Medical Center (Ring 2022) and threatened to remove the licences of professionals who offered gender-affirming care under SB1819 (Oklahoma Government 2022b), entitled ‘Health services for minors; prohibiting certain medical treatment for minors; providing penalty’. Texas state authorities sought to investigate parents who helped their children obtain puberty blockers or hormone therapies, using various different pieces of legislation (Wagner 2022).

One example of a single-sex facilities Bill deferred unapproved to a 2018 senate education committee was Missouri’s SB690 (Missouri Government 2018), which require 'that all school shower rooms, locker rooms, and restrooms accessible for use by multiple students shall be designated for and used by male or female students only’. Whilst all restrictions on athletics and facilities passed sought to ban transgender girls from sports or facilities aligned with their gender, many, including SB690, banned TGD students more broadly from any ‘usual’ facility causing students to require alternatives or not access public education spaces. Typically, SB690 relegated TGD students to:

… [the] controlled use of faculty shower rooms, locker rooms, or restrooms, or access to single-stall and unisex restrooms. (p.1)

This makes it clear that in such legislatures, attempts were being made to construct girls’ rights as limited by TGD youth, in particular, and to promote the belief that transgender girls possessed ‘biological advantages’ over, and were sexual dangers, to other girls.

With respect to identification documentation (ID) restriction, HB509 – the ‘Idaho Vital Statistics Act’, sought to support its claims on the basis of scientific ‘facts’:

The society for evidence-based gender medicine has declared that the conflation of sex and gender in healthcare is alarming, subjects hundreds of thousands of individuals to the risk of unintended medical harm … Age and sex, unlike the names of natural parents whose rights have been terminated, are legally applicable facts. (Idaho Government 2020, 3)

Here both TGD people's rights and parents’ rights are discussed as extinguishable. In other Bills, parent rights are asserted whilst girls/women’s rights are extinguishable. Tennessee Bills sought to prevent TGD people from changing their gender on their birth certificates. Oklahoma became the first US state to ban the use of the term ‘nonbinary² or any symbol representing a nonbinary designation including but not limited to the letter “X”’ on birth certificates – using SB1100 (Oklahoma Government 2022a). SB1100’s 48-word title which ran as follows: ‘An Act relating to vital records; (…) limiting biological sex designation on certificate of birth to male or female; prohibiting nonbinary designation; making language gender neutral; updating statutory language; and declaring an emergency’, typified ID Bills’ state-crisis framings of issues relating to TGD identity.

TGD youth restriction ban texts have shared features in common with the other Bills examined. These include brevity (usually 1–2 pages), lengthy titles detailing many restrictions, the banning of specific access opportunities for TGD youth, and inadequate explanation or definitions. Where restrictions were explained, the Bills usually claimed that TGD rights undermined women’s or girls’ rights. No real-world data to support such claims was supplied. Conversely, the Alliance Defending Freedom (ADF) – a conservative Christian legal advocacy group classified by the Southern Poverty Law Center as an anti-LGBTIQ+ hate group – and which was credited by an Idaho legislator for assistance in the preparation of a Bill excluding TGD youth from athletics (since replicated and adopted by nearly two dozen other US states) has also agitated against women’s rights (Corbin 2021).

Importantly, this work has parallels elsewhere. Between 2009 and 2018, the Secretariat of the European Parliamentary Forum identified USD 707.2 million was distributed by 54 US, Russian and other European non-government and religious organisations, political parties and foundations, to support religious extremist anti-gender Bills internationally (Datta 2023). Of 10 main contributing US bodies, the ADF in particular has impacted European anti-LGBTIQ+ work (Datta 2023). The ADF has also donated to more than 12 anti-LGBTIQ+ and anti-abortion groups promoting US state-level rights-restricting Bills (Gabbat 2023).

All attempted restrictions combined have increased exponentially since 2018, with TGD athletics exclusions more than tripling in 2021 (Figures 4 and 5).

Figure 4. Foci of state-level bills restricting rights of LGBTIQ+ people attempted (n = 543).

Figure 5. Focus of Bills attempted, by year (n = 543).

Religious exemptions for discrimination against LGBTIQ+ people

Almost a quarter of the Bills (23%) attempted to introduce religious exemptions for discrimination against LGBTIQ+ people based on organisational or individual beliefs/doctrines; or in some cases exemptions in services for (TGD) people or youth. These Bills have included the restoration of religious freedom acts (9%) and religious exemptions in adoption/fostering (6%), healthcare (5%), and other areas (3%) potentially related to young people or education (Figure 3). Bills of this type, or their sub-sections, are typically called ‘First Amendment Defense Acts/FADAs’, ‘Restoration of Religious Freedom’ Bills, ‘Religious Exemptions’ or ‘Parent Rights Acts’. Their conceptual precedents included Mississippi’s 12-section HB1523 (Mississippi Government 2016), passed with a characteristically long (97-word) title containing ‘… Protecting Freedom of Conscience from Government Discrimination Act …’. The Bill stipulated certain ‘sincerely held religious beliefs or moral convictions’ were protected above others, including:

1. Marriage is or should be recognised as the union of one man and one woman;

2. Sexual relations are properly reserved to such a marriage; and

3. Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth. (Mississippi Government 2016, 1)

This typifies how these Bills attempted to advance Judaeo-Christian religion’s dominion over sex, gender and/or sexuality ideas and people, and against US Supreme Court and federal legislative marriage equality protections.

An example 10-page religious freedom Bill is SB361 (Georgia Government 2018), which passed with a 122-word title including ‘Law Enforcement Strategic Support Act’. It focused mostly on safeguarding expression of discriminatory religious views, providing for:

freedom of religious speech for students and faculty members in public schools; (…) model policies by each local school system on student expression; (…) freedom of religious expression by faculty and employees. (p.1)

The Bill presumed freedom of discriminatory speech and religious freedom to discriminate existed and were being threatened.

SB1140 (Oklahoma Government 2018) was a three-page Bill example typical of religious exemptions on adoption/fostering, with a 52-word title including ‘An Act relating to children …’. It repositioned child-placing agencies’ dominion over LGBTIQ+ foster and adoptive parents’ and young people’s (including LGBTIQ+ youths’) rights and needs, allowing religious adoption agencies to refuse services that ‘would violate the agency’s written religious or moral convictions or policies’ (p.2). It implied organisations’ religious beliefs or rights in dominion over others were threatened, although organisations cannot feel conviction nor claim human rights.

Empowered and subjectified parties in sentences such as those ‘doing/avoiding’ the actions have included religious government employees, contractors and for-profit businesses including educators, school counsellors and child-placing agencies. Verbs in sentences have emphasised choosing or acting/avoiding acting with impunity based on religious beliefs or moral convictions, in recognising and serving (or not) and in expressing approval (or not). Objectified parties in sentences (the object party has actions ‘done/avoided being done’ to them) have often included same-sex couples and their families, single mothers, people in sexual relationships outside of a marriage and children (including LGBTIQ+ youth). Valued authorities have included religions, governments, employers and professionals, and religious individuals or parents/guardians; to the extent that they expressed religious beliefs, tenants or moral convictions through positive or negative expression (refusal of others’ service provision, relationship recognition or identity affirmation).

Sometimes, including in the 10-page HF2273 (Iowa Government 2020), restraint on religious people’s dominion over others has been re-cast as government repression. For example, HF2273’s 19-word title includes the words ‘protecting freedom of conscience from government discrimination’, and its ‘protected’ expression of anti-LGBTIQ+ religious beliefs in health, mental health and education services around ‘gender identity transitioning’ or ‘sex-specific standards’ (p.3). This Bill, like many others, sought to promote religious biological essentialist ideology as law, by copying the Mississippi prototype claim:

… the terms ‘male’ and ‘female’ refer to distinct and immutable biological sexes that are determinable by anatomy and genetics by the time of birth. (p.2)

These Bills have often featured longer ideological explanatory portions than other Bill types on religious freedom or rights (4–10 pages) and contained essentialist ideological claims on sex, gender and sexuality. Bill justifications echoed the ADF’s claims of hypothetical ‘religious/moral harms’ in the now-passed Supreme Court case for a Christian woman’s right to discriminate against (hypothetical-only) same-sex couples’ website-creation services (Gabbat 2023). Textual references are sometimes made to the US First Amendment in these Bills, their submission processes or debates. The focus on religious exemptions wavered over the period examined (Figure 4).

Restrictions on LGBTIQ+ textual or other representations

A fifth of the Bills (20%) has attempted restrictions on LGBTIQ+ textual or other representations. These Bills included school or curricula restrictions (10%), restrictions on city and local government body LGBTIQ+ protections from surpassing state-level protections (2%), and other types including restrictions on textual or student group representation support affecting LGBTIQ+ students or youth (8%) in various ways (Figure 3).

The focus on attempted anti-LGBTIQ+ school or curricula restrictions increased nine-fold suddenly in 2022 (Figure 4). Typical of these Bills’ use of parent rights as justification was Florida’s HB1557 (Florida Government 2022b), banning mention of sexuality and gender from kindergarten to third-grade curricula and restricting ‘age-inappropriate’ (spoken or written) textual pedagogy to twelfth grade (colloquially the ‘Don’t Say Gay Bill’). This forced teachers to inform parents if they believed their child was TGD and empowered parents to sue schools or school districts for not complying with curricula age-appropriateness or TGD-informing, restricting staff and LGBTIQ+ student rights for parental dominion ‘rights’:

… prohibiting school district personnel from discouraging or prohibiting parental notification and involvement in critical decisions affecting a student’s mental, emotional, or physical well-being; (…) prohibiting classroom discussion about sexual orientation or gender identity …. (p.1)

Florida’s HB1467 (Florida Government 2022a) also added third-degree felony punishment for teachers having unapproved ‘inappropriate or unsuitable’ (p.5) (targeted LGBTIQA+) instructional materials in classroom libraries not approved by certified ‘media specialists’ (p.6).

Florida Bills had precedents that were not previously passed. Local protection restriction Bill attempts on city and local governments also had their precedent in the remainder of Republic North Carolina Governor Pat McCrory administration’s (2017) HB2, which arguably anticipated and pre-emptively banned North Carolina jurisdictions from allowing anti-discrimination ordinances at the city or local level surpassing state provisions. Though HB2 was repealed under Democrat Governor Roy Cooper’s administration in 2020, its key anticipatory restriction of rights is replicated in other states’ Bill attempts.

Text interaction and interpretation trends

Of 543 Bills, at least 53 (under a tenth) were sent for authorisatio. These were mostly delivered for signing/signed (39), or approved (4) by state governors – sometimes after several earlier versions had ‘died’ on rules. Two were signed by state speakers and presidents in 2020, one passed without a signature (in Louisiana), and one ‘motion to adopt was adopted’. Six were vetoed by governors (including in Pennsylvania); there were five clear attempts by the legislature to overrule the vetoes. In three cases, the vetoes were overruled, and the bills continued (in Indiana, Utah and Kentucky).

In the case of Utah, Republican Governor Spencer Cox vetoed a ban for the exclusion of TGD youth from athletics citing ‘fundamental flaws’ in the legislation’s logic that girls/women’s rights were at risk, where TGD people could participate in youth ‘gender-designated’ sports in line with their gender identity. He did so on the grounds of friendship and inclusion not competition, the small number of TGD youth in question and the potential mental health impacts on TGD youth. The state legislature voted to override the governor’s veto, however, and the Bill was passed as HB11 (Utah Government 2022). It prohibited ‘a student of the male sex from competing against another school on a team designated for female students’, and its political nature was shown in provisions prohibiting complaints about this. The Bill was temporarily suspended by a court ruling (Hill 2022). Only two governor overrule attempts were ultimately unsuccessful – in Louisiana and South Dakota – where those Bills died. Overall, most Bills did not pass: at least 210 could be clearly counted as ‘dead’ within their submission year (38.7%); and at least one quarter remained referred to a committee and/or senate body at the submission year’s end (140, 25.8%).

Most of the signed Bills occurred later in the five-year period focused on here, and all veto and override attempts occurred in those years, after the ADF’s increased dispersal of additional funding to anti-LGBTIQ+ groups pushing key Bills (Gabbat 2023). Bills were most often passed in Tennessee (9+ active/or referred Bills ongoing), Oklahoma (5+) and Arizona (4+). Multiple Bills were also passed in Florida, Indiana, Missouri, Montana, South Carolina, South Dakota and Texas. At least single Bills were passed in Alabama, Arkansas, Idaho, Iowa, Kentucky, Louisiana, Ohio, Utah and West Virginia. Higher numbers of Bills passed sought to exclude TGD youth from participation in athletics (17+ and ongoing). There were also multiple examples of signed anti-LGBTQ school or curriculum restrictions (5+); religious exemptions on LGBTIQ+ people in relation to adoption/fostering (4+); restricting TGD youth healthcare (3+) or use of accurate ID (3+). Several of the athletics exclusions have been subject to blockage attempts by federal judges and courts (ruling in favour for TGD student athletes in Idaho, Connecticut and West Virginia), and briefs have been filed against the laws by athletes, coaches, women’s rights groups and medical experts.

Discussion

Sustained structural attacks

The significant increase in US state-level Bills attempting to restrict LGBTIQ+ youth rights over the past 5 years has revealed fractious processes of production and interaction using local events opportunistically in national top-down policy diffusions (as seen in Haider-Markel 2001). Most of the anti-LGBTIQ+ Bills proposed did not pass. Over one-third were dead within their submission year, and more were delayed by being referred on to and docked within committees, including in Southern US states. Even in Tennessee and Montana where multiple Bills have been passed, increased Bill passages coincided with the most Bill submission attempts, and with many unsuccessful attempts. States such as Louisiana, Idaho, Pennsylvania, West Virginia, and others have experienced fraught processes of production and interaction over Governor's signage, court intervention, blockage and repeal.Laws were rejected across years, reintroduced several times, passed, blocked and repealed. There has been extreme productivity, fluidity and repetition of battles within this legislative field.

Evolving shared strategies

The Bills focused on in this paper have often proposed models of health and mental healthcare directly contravene research and official guidance on the needs of LGBTIQ+ youth (APA 2022). They have made the identities of transgender and gender diverse youth or those with intersex variations inconceivable within their binary sex models, unrecordable in documentation and/or unliveable in education, health and other public spaces (Butler 2004). Many Bills have directly sought to rescind the diversity of sex characteristics and gender identities accepted by mainstream education, psycho-medical and rights discourses (APA 2022; Davis 2015; UNESCO 2017). The quality of education, discrimination, healthcare and political representation of LGBTIQ+ student experiences in legislation now varies considerably across the USA, with poorer conditions in the Southern states. Analyses have shown an overwhelming prioritisation of TGD youth rights restrictions within Bills, although the specific rights restricted (e.g. athletics, space access and ID) have varied. Bills’ polyvalence in relation to essentialist sex binary model clarifications, gender identity restrictions/nonbinary bans, relationships and parent rights, and other conceptual reconstructions, has ironically revealed biological sex binaries to be questionable ‘realities’. If essentialist realities are truly shared, multi-bill over-clarifications would be unnecessary.

The US bills documented here manifest deeply conservative discourses: particularly in relation to censorship, physical hygiene and sexual morality discourses’ privileging of youth restrictions. Significantly, the study found that anti-LGBTIQ+ rights backlash bills often utilised liberal and critical rights discourses. Specifically:

1. Single-sex facility and athletics restrictions have claimed liberal logics of female equity and radical critical logics of female difference requiring separatism for safety and fairness (e.g. Utah’s HB11). The claims made are often based on fallacious assumptions, such as that TGD youth cause harm to cisgender women and girls, and females are weak or the victims to socio-cultural confusion over their own gender diversity, and/or that of others (Nicholas 2021).

2. Religious exemption amendments and freedom acts have worked with liberal ideas concerning religious equity and individual religious freedoms (e.g. Mississippi’s HB1523). However, claims have falsely extended the notion of individual religious ‘freedom’ to include having organisational dominion over others (Currier 2010; Smith 2015).

3. Textual restrictions have claimed libertarian logics of power mediation (in city and school rule) and parent market-client rights to exert protectionist ‘dominion’ over education and children, including how children interact with others and/or are exposed to particular concepts (e.g. Florida’s HBs 1557, 1467). Claims have echoed textual ban trends’ broader protectionist logics contributing towards citizens’ expression, textual/curricula representation and interaction suppressions more generally (Altay 2022; China National Standardization Administration Commission 2022).

Some of the same hate groups that have promoted women’s/girls’ rights against those of TGD people (e.g. in athletics exclusion Bills) have attacked women’s/girls’ reproductive rights in other bill campaigns (Corbin 2021). Some anti-LGBTIQ+ Bills have asserted parents’ rights over others, whilst others (such as Idaho HB509 example) have constructed these rights as retractable.

Rights backlash thus works with a simulacrum of Foucauldian ‘tactical polyvalence’, wherein oppositional (anti-/pro-rights) discourses are put to contradictory use towards repressive ends. US and international lawmakers, LGBTIQ+ researchers and advocates be alert to recognising liberal and critical discourse manipulations within conservative anti-rights US state legislation backlash, not least because US-funded Bills rescindments and rhetoric travel across local and international borders (Parke 2016; Smith 2017). The numeric trend data (and the 75 anti-LGBTIQ+ Bills already-passed in the first 5 months of 2023 (Gabbat 2023) suggest that anti-LGBTIQ+ rights Bill attempts around athletics, school or curricula restrictions have continued to spread, particularly in US-funded red states and international campaigns.

Elite-led anti-rights mobilisation

Overall, the angle taken by anti-LGBTIQ+ rights rhetorics has mattered less than their political function. There is a clear political alignment between the dominance of anti-TGD youth backlash bills at the state level, and the Trump Administration’s 2017 rescindment of Title IX protections and the devolution of LGBTIQ+ (and particularly TGD) student protections to state legislature determinations (US Department of Justice 2017) and the loopholes this created for state use of transphobia (Drake 2017). Intensity of anti-LGBTIQ+ Bill proliferations and anti-TGD Bills in Republican State legislatures/‘red states’ has following patterns of past nationally politically funded Elite-led Anti-Rights Mobilisations documented in other studies (Bishin et al. 2016, 2021). The growth of ADF political influence was visible in many Bills’ repeated concepts, funding support, and hypothesised rights violation examples (Gabbat 2023). All 22 states with 9+ anti-LGBTIQ+ curricula bill attempts (vs. no states with 0–1) proposed bans following the ADF and similar organisations’ attacks on ‘Critical Race Theory/Divisive Curricula’ (AAPF 2023) and abortion rights (Datta 2023; Guttmacher Institute 2023) in simultaneous anti-rights coordinations.

There have also been alignments between the attention given to religious exemptions in discrimination backlash Bills and the argument that rights expansions often align with campaigns that seek to ‘correct’ the state’s supposed over-expansion of rights recognitions via religious or moral anti-rights discourses (Smith 2015). The states with strong proliferations of these Bill attempts, especially where each Bill itself was small and specific (Tennessee, Texas, etc.), were contexts in which political transphobia and homophobia proved useful in elections and in religious organisations’ empowerment. These contexts were often those that had existing high levels of anti-LGBTIQ+ hate group activity compared to other states (e.g. in Tennessee the All Scripture Baptist Church and Warriors for Christ; in Texas Mass Resistance, etc.).

Some states with fewer anti-LGBTIQ+ Bill attempts also have hate groups (e.g. New York and California). However, the actions of these groups are offset by the pro-active voice of pro-LGBTIQ+ non-government youth organisations (e.g. the Gay Straight Alliance Network and others), pro-LGBTIQ+ legal entities combatting anti-LGBTIQ+ Bills (e.g. the Transgender Law Centre and others), international agencies and civil society organisations. Thus, contextual factors of conservative government at the federal and/or state levels, fewer LGBTIQ+ support headquarters and lawyers, and the sense that anti-LGBTIQ+ Bills will contribute to state authorities’ political survival have contributed towards increased anti-LGBTIQ+ student Bill production proliferations. Republican politicians see making anti-LGBTIQ+ hate a feature of their state legislatures a ‘winning’ political strategy, even when bans do not in fact take place (Wagner 2022).

Conclusion

This paper has argued that the recent US state-level anti-LGBTIQ+ rights Bill proliferation is part of a broader elite-led anti-rights mobilisation masked as grassroots ‘backlash’ to earlier progressive equality-based reforms. The strategies adopted by key players in this respect have exploited structural weaknesses created by (rescinded) national and (missing) state LGBTIQ+ rights protections, repurposing anti-rights religious morality liberal-progressive rights discourses.

Overly extended rights claims on behalf of girls/women, religious freedoms and parents have been used to assert false dichotomies between, and hypothetical-only threats by, LGBTIQ+ participation in public spaces, in support of far-right organisational empowerment and political ends. Notably women’s/girls’ rights have been used in some Bills against TGD peoples’ rights yet have been weakened or questioned in other Bills produced by the same co-contributors. Similarly, some anti-TGD Bills have both asserted parents’ rights and argued that these should be rescinded.

Taken together, the Bills described here have contributed to an overall diminution of citizen rights and the growth of authoritarian dominion, not feminist, parental or religious rights advance. Education advocates of all kinds should resist the authoritarianism that is clear present in anti-LGBTIQ+ bills, recognising their disingenuous rights and rescindment claims as anti-democratic. Advocacy to state parliaments and governors may sometimes result in delays, blocks or the repeals of such Bills. However, LGBTIQ+ rights both domestically and transnationally require multi-layered structural support, not just executive, state or grassroots action. Data from LGBTIQ+ student and public opinion surveys, case-analysis, and legislative trend mapping should be used to capture passed Bills’ longer-term impact.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Data availability statement

Contained in an online supplemental table and by application ([email protected]) https://doi.org/10.25949/23814150.

Supplementary material

Supplemental data for this article can be accessed online at https://doi.org/10.1080/14681811.2023.2241136

Additional information

Funding

This work was supported by the Macquarie University Research Assistance Scheme 2021.

Notes

1. Gender identity aligned to birth-allocated sex.

2. Gender identity not aligned to male or female.