Republican lawmakers ignore legal warnings to push forward with restrictions on trans people, flags
Photo by Jerod MacDonald-Evoy | Arizona Mirror
Republican lawmakers are aiming to erase trans Arizonans from public life and ban government agencies from displaying LGBTQ pride flags, ignoring warnings from legislative attorneys that doing so could potentially violate the U.S. Constitution.
On Monday, a panel of five Republican state representatives and three Democrats voted along party lines to declare two bills that continue the GOP's recent trend of advancing discriminatory legislation are constitutional and fit for consideration by the full House of Representatives.
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Across the country Republican attacks on LGBTQ people, particularly trans Americans, have escalated, each year breaking the last year's record since 2021. And with President Donald Trump in office, GOP lawmakers are more eager than ever to target LGBTQ Americans.
In Arizona, that hostility manifests in proposals that seek to greenlight discrimination against trans people in public spaces and block state agencies from expressing support for the LGBTQ community.
House Bill 2062 would enshrine a narrow definition of biological sex into state law based on a person's reproductive characteristics and allow schools and other state agencies to bar trans people from using the bathrooms or locker rooms that best align with their gender identity. Trans Arizonans would also be prevented from joining athletic teams or living in domestic violence shelters that reflect who they are.
House Bill 2113, meanwhile, would forbid the flying of any flag on a government building that isn't an Arizona state flag, an Arizona Indian Nations flag, a first responder flag, any version of the American flag or a blue star or gold star service flag.
House Rules Attorney Tim Fleming told lawmakers that both bills have the potential to embroil the state in legal challenges. The proposal advocating for a limited application of biological sex could lead to lawsuits from transgender Arizonans who experience discrimination as a result of state agencies that use the law to develop restrictive public facility policies.
'Policies (that) separate biological men from women could cause an issue with transgender persons who seek to use restroom facilities that match their gender identity,' Fleming said.
While he acknowledged that the legal landscape around transgender rights remains 'unsettled,' he pointed out that, for now, federal law and the U.S. Constitution shield Americans from gender-based discrimination. The 14th Amendment guarantees all Americans enjoy equal treatment under the law, whileTitle IX, which prohibits sex-based discrimination at any federally funded school, and Title VII, which covers employee civil rights, have long been interpreted as including gender identity in their protections.
And the Ninth Circuit Court of Appeals, under whose jurisdiction Arizona lies, temporarily blocked an Idaho law forcing trans students to use school facilities consistent with their biological sex while it considers the case's constitutional implications.
In the end, Fleming said a clearer legal picture will likely emerge in the next few years.
'We probably should talk more about these kinds of things in three or four years, and then we will know what the full state of the law is as it settles down,' he said.
Fleming also warned lawmakers that the bid to strictly limit which kinds of flags state buildings can display is in danger of violating the free speech protections that even government employees have.
'What's unclear from the bill as it was originally presented was whether there might be some overbroad application that might cut off a government actor's ability to fully express private thoughts,' he said.
Opponents of the proposal have pointed out that it's likely to jeopardize the ability of Arizonans to show off allegiance to their favorite sports teams or foreign language teachers to display the flag of the country whose language students are studying. Democrats have accused Republican lawmakers of attempting to censure Gov. Katie Hobbs for her move to fly the LGBTQ pride flag from the Ninth Floor for the first time in the state's history.
To remedy some of the bill's issues, Fleming said he and its sponsor have worked on an amendment that will exempt 'approved educational curricula' and the right of Arizonans to express 'civil and political liberties.'
While the bills are likely to earn the approval of the Republican majority legislature, they're almost certainly headed towards Hobbs' veto stamp. The Democrat has repeatedly vowed to reject any proposals that seek to curtail the rights of LGBTQ Arizonans, and a near-identical copy of the bill seeking to enshrine a limited understanding of biological sex into state law has already been vetoed by the governor last year.
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