Dive Brief:
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Four states — Montana, North Dakota, Kansas and Tennessee — this year enacted laws limiting the definition of "sex" to a permanent category of "male" or "female," potentially excluding transgender people from equal access to public life, according to an August report released by the Movement Advancement Project, which tracks anti-LGBTQ measures.
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Overall, at least 22 bills have been introduced in state legislatures so far in 2023 to define the term "sex" throughout state law as strictly male or female — typically based on a person's characteristics at birth, the report said.
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While the impact of the laws is still uncertain, they could result in excluding transgender people from areas of public life, including sex-based nondiscrimination protections and the right to use bathrooms aligning with their gender identities.
Dive Insight:
In addition to the four states that enacted laws defining "sex" in a way that would exclude transgender people, in Oklahoma Gov. Kevin Stitt signed an executive order on Aug. 1 in the same vein.
That order says any public school, public school district or other agency that collects data for the purpose of complying with anti-discrimination laws, like Title IX, must identify people as either male or female according to biological characteristics.
"This is a new area of law that emerged this year," according to the Movement Advancement Project.
These efforts to define "sex" so as to exclude transgender people would directly contradict proposed regulations for Title IX, the federal civil rights law that protects individuals from sex discrimination in education programs. The proposed rules, if finalized as currently written, would for the first time also protect LGBTQ+ people from sex-based discrimination.
Four of the five states that now have laws or policies defining "sex" to exclude transgender individuals also sued the U.S. Education Department in 2021, hoping to halt the agency's interpretation of Title IX, which includes protections for gender identity and sexual orientation. The four — Oklahoma, Montana, Kansas and Tennessee — are among 20 predominantly conservative states that sued in federal court and then renewed their call in 2022.
Shortly after the Education Department announced its proposed Title IX rules, — and despite urges from conservative states to change course — a federal judge granted the states' request to hear the lawsuit and rejected the Education Department's attempt to throw out the case.
That decision also temporarily blocked the Education Department's interpretation of Title IX until the case is decided, limiting the agency's ability to enforce its Title IX policy in many of the same states that are now defining, or attempting to define, "sex" to exclude transgender students.
"While on their face these laws do not automatically stop recognition of transgender and nonbinary people in state law, they create the conditions for a wide range of implications," the MAP report says. These implications could "limit the recognition for transgender and nonbinary people in areas of public life," including access to nondiscrimination protections.
