Nearly 240 anti-LGBTQ bills filed in 2022 so far, with most targeting trans people

WASHINGTON (AP) — In the court of public opinion — like the Supreme Court nomination hearings coming this week — politicians ask questions of witnesses to score points for their side. In the court of law, judges ask questions to get answers.

That difference will be on display as Judge Ketanji Brown Jackson fields loaded questions from Republicans and Democrats, the former mostly opposing her nomination, the latter favoring it.

But the distinction between political and judicial inquiry has already been lost as Republicans in the days before her hearings selectively cited her record to try to make a case against her. They are treating questions from her judge's life over the years as statements of opinion to portray her as an outlier not deserving of a seat on the high court.

Their assertions on this front don't stand up to scrutiny:

GOP SEN. JOSH HAWLEY OF MISSOURI: “Judge Jackson has opined there may be a type of ‘less-serious child pornography offender.' … ’A ‘less-serious’ child porn offender?” — tweet Wednesday.

THE FACTS: She opined no such thing. She asked questions about it.

Jackson was vice chair of the U.S. Sentencing Commission when it held a hearing on sentencing guidelines in 2012.

She told the hearing she was surprised at a Justice Department expert's testimony that, as she put it, some child-sex offenders may actually “not be pedophiles” but perhaps "loners" looking for like-minded company in child pornography circles. Being surprised by an assertion and wanting to know more are not the same as endorsing it.

“So I’m wondering whether you could say that there is a — that there could be a — less-serious child pornography offender who is engaging in the type of conduct in the group experience level?" she asked the expert witness. "They’re very sophisticated technologically, but they aren’t necessarily that interested in the child pornography piece of it?”

From those questions, Hawley extrapolated that Jackson had drawn conclusions, when she hadn't.

But several behavioral science researchers testified at that hearing that there may be nonsexual motivations among a portion of child-sex criminals. It is not a radical view. And many judges do see a distinction between those who produce child pornography and those who receive it.

In 2020, in denying compassionate release on medical grounds to a convicted sex offender serving almost six years in prison, Judge Jackson asserted: "The possession and distribution of child pornography is an extremely serious crime because it involves trading depictions of the actual sexual assault of children, and the abuse that these child victims endure will remain available on the internet forever.”

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REPUBLICAN NATIONAL COMMITTEE: “Ketanji Brown Jackson’s record also includes defending terrorists.” — tweet from RNC Research on Feb. 25.

THE FACTS: That’s misleading on several fronts.

First, she did not defend convicted terrorists but rather suspects. The RNC ignored the presumption of innocence that is at the heart of the legal system. Second, defending people accused of a crime is exactly what defense lawyers are supposed to do. That’s why public defender’s offices exist – to represent suspects who cannot afford a lawyer or who have cases that lawyers for hire don’t want to take.

Jackson was working in the federal public defender’s office in the District of Columbia when she was assigned four Guantanamo Bay detainees, later continuing some of her work with them in private practice. This was after the Supreme Court ruled in 2004 that the detainees could file lawsuits challenging their indefinite detention.

Even those who were charged had those charges dropped, and all were eventually released. None was convicted by the military commissions created to try detainees.

Jackson was going by the textbook when she wrote that under “the ethics rules that apply to lawyers, an attorney has a duty to represent her clients zealously” regardless of the attorney’s personal views.

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HAWLEY: “Judge Jackson went below the maximum, the minimum, and below what the government requested in every single case for which we can find records, except two. In those two the law required her to impose the sentence the government recommended.” — statement Friday.

THE FACTS: Not so. In most of the child pornography cases where she imposed lighter sentences than federal guidelines suggested, prosecutors or others representing the Justice Department generally argued for sentences that were lighter than those recommended by federal guidelines.

So it is not correct to assert that all but two sentences she handed down in such cases, when she served as a district court judge from 2013 until last year, were “below what the government requested.”

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HAWLEY: “As far back as her time in law school, Judge Jackson has questioned making convicts register as sex offenders.” — tweet Wednesday.

THE FACTS: That's fair. She did question mandatory registry of sex offenders back in law school but did not come out explicitly against the practice.

Jackson wrote an unsigned statement for the Harvard Law Review in 1996 that suggested judges should be wary of mixing larger public safety concerns and punitive measures when sentencing sex offenders.

It said in part: “In the current climate of fear, hatred, and revenge associated with the release of convicted sex criminals, courts must be especially attentive to legislative enactments that ‘use public health and safety rhetoric to justify procedures that are, in essence, punishment and detention.‘”

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This article has been updated to CORRECT that Jackson was a district judge when ruling on child pornography cases, not a circuit court judge.

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Associated Press writers Hope Yen, Jessica Gresko, Mary Clare Jalonick and Chris Megerian contributed to this report.

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EDITOR'S NOTE — A look at the veracity of claims by political figures.

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Find AP Fact Checks at http://apnews.com/APFactCheck

Follow @APFactCheck on Twitter: https://twitter.com/APFactCheck

State lawmakers have proposed a record 238 bills that would limit the rights of LGBTQ Americans this year — or more than three per day — with about half of them targeting transgender people specifically.

Nearly 670 anti-LGBTQ bills have been filed since 2018, according to an NBC News analysis of data from the American Civil Liberties Union and LGBTQ advocacy group Freedom for All Americans, with nearly all of the country’s 50 state legislatures all having weighed at least one bill.

Throughout that time, the annual number of anti-LGBTQ bills filed has skyrocketed from 41 bills in 2018 to 238 bills in less than three months of 2022. And this year’s historic tally quickly follows what some advocates had labeled the “worst year in recent history for LGBTQ state legislative attacks,” when 191 bills were proposed last year.

The slate of legislation includes measures that would restrict LGBTQ issues in school curriculums, permit religious exemptions to discriminate against LGBTQ people and limit trans people’s ability to play sports, use bathrooms that correspond with their gender identity and receive gender-affirming health care.

Proponents of these bills say they’re about protecting children, parental rights, religious freedom or a combination of these. Opponents, however, contend they’re discriminatory and are more about scoring political points with conservative voters than protecting constituents.

“It’s important for people to pause and think about what is happening — especially in the health care context — because what we’re seeing is that the state should have the authority to declare a population of people so undesirable that their medical care that they need to survive becomes a crime,” Chase Strangio, the deputy director for transgender justice at the ACLU LGBT & HIV Project, said. “What more terrifying intrusion of the state could there be?”

As the number of anti-LGBTQ bills hits record highs, research shows that so, too, has support for LGBTQ rights and policies prohibiting discrimination against lesbian, gay, bisexual, transgender and queer people. Nearly 8 in 10 Americans, or 79 percent, support laws that protect LGBTQ people from discrimination in jobs, housing and public accommodations, according to a Public Religion Research Institute survey released Thursday. That same survey also found that nearly 70 percent of Americans support same-sex marriage, up from 54 percent in 2014.

LGBTQ advocates and political experts say the uptick in state bills is less about public sentiment and more about lobbying on behalf of conservative and religious groups.

Activists contend that the groups have pushed for the legislation in response to a string of progressive wins, including two landmark Supreme Court rulings — one that legalized same-sex marriage in 2015 and another that won LGBTQ people nationwide protection from workplace discrimination in 2020 — and the election of President Joe Biden in 2020.

They also reason that the bills are part of a wider political strategy to use transgender people as a “wedge issue” to motivate right-wing voters.

“Conservative politicians, conservative religious leaders, religious organizations, and sometimes conservative scholars, often present themselves as defenders of traditional values and traditional institutions in society,” said Gabriele Magni, an assistant professor of political science at Loyola Marymount University in Los Angeles. “LGBTQ rights have become a natural target because they go against one of the most traditional institutions of society, and that is the family.”

NBC News’ analysis of the ACLU and Freedom for All Americans data found that among anti-LGBTQ bills, measures targeting trans Americans have significantly increased in recent years. For example, 22 of 2019’s 60 anti-LGBTQ proposed bills, or 37 percent, were anti-trans bills, compared with 153, or 80 percent, of 2021’s 191 anti-LGBTQ bills. This year, about 65 percent of the anti-LGBTQ bills filed as of March 15 — 154 — were anti-trans bills.

“The authors of these bills and the dark money groups pushing for them do not want it to be possible to be a trans kid in this country,” said Gillian Branstetter, a longtime trans advocate and the media manager for women’s advocacy group the National Women’s Law Center. “They’re responding to trans kids as if they were responding to a contagion.”

Anti-trans legislation — specifically, measures that would block trans students from competing on school sports teams that align with their gender identity — have been among the most successful of the anti-LGBTQ bills filed in recent years. Since the start of 2021, 11 states have written trans sports bans into law, according to tallies from the ACLU and the Human Rights Campaign, an LGBTQ advocacy group.

Advocates also point to the mental health risks plaguing trans youths and how anti-trans policies can exacerbate them.

A survey last year by The Trevor Project, an LGBTQ youth suicide prevention and crisis intervention organization, found that 42 percent of the nearly 35,000 LGBTQ youths who were surveyed — and over half of trans and nonbinary youths — seriously considered suicide within the prior year. Separately, two-thirds of LGBTQ youths said debates about anti-trans legislation have impacted their mental health negatively, according to a small survey The Trevor Project conducted in the fall.

Not only have the bills taken a toll on trans people themselves, but they have also reshaped the lives of their families.

While balancing work as a small-business owner, Arizona mom Lizette Trujillo has spent the last three years meeting with trans advocates, traveling back and forth to her state’s Capitol in Phoenix and “dropping everything” to fight on behalf of her 14-year-old transgender son, Daniel.

“It’s exhausting, it’s painful and it’s something that I have to prepare for every year, and I’m still in shock that I have to advocate for my child,” Trujillo said. “If they care about families in the way that they say they do, or if they care about kids in the way that they say they do, they would leave us alone and allow us the opportunity to take a breath to be the boring PTA parent who organizes a fundraiser and is able to attend after-school activities.”

While this moment in LGBTQ rights has been “very dark,” as Branstetter put it, advocates have also had several wins.

Last month, an Arizona Republican state senator broke with his party, blocking legislation that would have banned gender-affirming care for transgender youth. In neighboring Utah, Republican Gov. Spencer Cox vowed to veto legislation passed this month by the Legislature that would ban transgender student-athletes from competing in girls sports. And last week, Republicans in Idaho’s Senate stopped a bill that would have made it a criminal offense for parents to allow their minor children to receive gender-affirming care.

But a directive issued by Texas Gov. Greg Abbott last month has illustrated alternative avenues lawmakers can take to target LGBTQ Americans when they cannot pass anti-LGBTQ bills through state legislatures.

Last year, the Texas Legislature failed to pass a bill that would have made it a felony alongside physical and sexual abuse to provide gender-affirming care to minors. But in the law’s place, last month, Abbott ordered “licensed professionals” and “members of the general public” to report the parents of transgender minors to state authorities if it appears that the minors are receiving gender-affirming medical care. Abbott’s mandate came shortly after Texas Attorney General Ken Paxton issued a nonbinding legal opinion stating that transition care for minors is child abuse under state law.

In his opinion, Paxton argued that certain transition-related medical care causes “physical injury” to children, but medical doctors say it is supported and considered medically necessary by relevant accredited medical associations.

“It’s important to look at the cruelty of the governor’s order in Texas, because these bills act as the on-ramp towards that level of cruelty against trans kids,” Branstetter said. “There is a bottomless hunger for the misery of trans kids.”

Trujillo said “this moment feels scarier” than years prior, but that hasn’t stopped her from fighting back against the slew of proposed policies in her state. Arizona has proposed the third-highest total of anti-LGBTQ bills so far this year, 17, behind Iowa and Tennessee.

“This takes up a lot of my life, but I do it in the hope that when my kid’s an adult, he won’t have to do it for himself, that he’ll be in a better place,” Trujillo said. “As much as I want to shrink away — to protect my family and my child — I also feel like this is the moment to speak up and say, ‘I will not allow you to erase my child.’”

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