Dan Avery

Even though it’s been more than five years since the Supreme Court ruled in Obergefell v. Hodges that same-sex couples have the right to marry “on the same terms and conditions as opposite-sex couples,” dozens of states still have constitutional amendments on the books that ban gay marriage.

Virginia is one of those states, and its first openly LGBTQ legislator is leading the charge to ax the outdated law.

Democratic state Sen. Adam Ebbin is sponsoring SJ 270, which would replace language in the state Constitution defining marriage as the union of one man and one woman with an affirmative statement that the right to marry is fundamental “regardless of the sex or gender of the parties to the marriage.”

“For young LGBTQ people, or even those who aren’t married or don’t want to get married, removing this language is an important step … It tells them that they matter, that they are equal to everyone else in the state.”

FRAN HUTCHINS, EQUALITY FEDERATION

On Feb. 5, SJ 270 cleared the Senate by a margin of 24 to 12. One day earlier, HJ 582, the House version, passed 60 to 33.

In Virginia, though, overturning a constitutional amendment is a two-year process — one that requires two separate General Assembly sessions separated by a general election to pass identical bills before a measure is put on the ballot for a public vote.

Since the landmark Obergefell ruling, at least eight states have tried to remove similarly unenforceable marriage bans, according to the Equality Federation. In November, Nevada became the first to do so, with 62 percent of voters backing the measure.

But 30 states still have such prohibitions written into their constitutions, according to the Movement Advancement Project. Sixteen of them also ban civil unions, and two, including Virginia’s, prohibit any legal recognition of gay relationships.

“For young LGBTQ people, or even those who aren’t married or don’t want to get married, removing this language is an important step,” Equality Federation Executive Director Fran Hutchins said. “It tells them that they matter, that they are equal to everyone else in the state.”

But homophobic laws can have a long shelf life in Virginia. Although the Supreme Court ruled that sodomy bans were unconstitutional in 2003’s Lawrence vs. Texas decision, it took a full decade for Virginia’s to be struck down — and even then it was by a federal appeals court, not by legislators.

The Code of Virginia first restricted marriage to different-sex couples in 1975, the same year clerks in Arizona and Colorado issued marriage licenses to same-sex couples. In 1997, the General Assembly passed a statute denying recognition of gay marriages performed in other states.

Then, in 2006 — three years after Massachusetts became the first state to allow same-sex marriage — lawmakers sponsored the Virginia Marriage Amendment, a ballot initiative reserving the institution for one man and one woman. Also known as the Marshall-Newman Amendment, the measure further barred any recognition of unmarried couples “that intends to approximate the design, qualities, significance, or effects of marriage.” Voters approved the resolution 57 to 43, and it was implemented as Article I, Section 15-A of the Virginia Constitution.

Civil rights advocates argued its broad language could be used to invalidate living wills, powers of attorney and even property agreements between same-sex partners. In an opinion piece in The Washington Post, gay conservative Jonathan Rauch branded the amendment a “Jim Crow” law for the 21st century.

“It disenfranchises gay people as individuals,” he wrote. “It makes us nonpersons, subcitizens. By stripping us of our bonds to each other, it strips us even of ownership of ourselves.” In January 2014, Virginia Attorney General Mark Herring announced his office would not defend the amendment in federal court.

“I believe the freedom to marry is a fundamental right,” Herring told reporters at the time, “and I intend to ensure that Virginia is on the right side of history and the right side of the law.”

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Less than a month later, U.S. District Judge Arenda Wright Allen for the Eastern District of Virginia found the Virginia Marriage Amendment unconstitutional in Bostic v. Rainey, paving the way for same-sex marriage in Virginia later that year.

Then, in June 2015, the Supreme Court ruling in Obergefell v. Hodges guaranteed the freedom to marry on the federal level.

Last March, the Virginia General Assembly repealed two laws banning same-sex marriage. But neither that nor the Obergefell ruling can remove what Ebbin calls “a stain” on the Virginia Constitution.

“All citizens deserve the dignity to know they won’t be targeted and denied their rights, and an affirmative statute does that,” he told NBC News. “It’s not about personal opinion; it’s about the law. You can keep your marriage between a man and a woman, but the law says it’s a right for everyone to enjoy.”

He and state Delegate Mark Sickles, who is also gay, have been introducing bills to update the state Constitution since 2015. Before now, they had always been defeated. This time, they received support from 11 Republicans, including state Senate Minority Leader Tommy Norment, R-James City, who supported the original 2006 marriage ban amendment.

Virginia’s progressive evolution

Democrats in Virginia have moved quickly to advance LGBTQ rightssince gaining control of the General Assembly in 2019: Last year, the Legislature banned so-called conversion therapy on minors and passed the Virginia Values Act, making it the first Southern state to pass anti-discrimination protections for the LGBTQ community.

This session, lawmakers are also working to repeal Virginia’s HIV criminalization law and strike down religion-conscious exemptions for foster care and adoption agencies.

Danica Roem, the first transgender member of the Virginia General Assembly, is also introducing legislation to ban the so-called panic defense, which has been used to excuse or mitigate violent crimes against gay and transgender people.

Ebbin said the General Assembly has become increasingly supportive of gay rights since he started as a delegate in 2004. The LGBTQ caucus now has five members, including Roem.

“We’ve moved from being on the defensive to where we as a governing body affirm the rights and equality of all Virginians,” he said. “It was a bipartisan vote, and there wasn’t an active opposition on the floor.”

There’s also support among voters: In 2014, 50 percent of Virginians supported same-sex marriage, according to the Public Religion Research Institute. By 2017, the last year the group polled on the question, that had jumped to 60 percent.

In 2020, a national polI by the group found a record 70 percent of Americans supported same-sex marriage, including about half of Republicans.

“They realize gay people can get married and the sky won’t fall,” Ebbin said. “So unless the Legislature goes through some drastic change, I predict that we’ll pass it.”

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Still, efforts to repeal the marriage amendment have been met with resistance.

In an email to members, Victoria Cobb, president of the conservative Family Foundation of Virginia, warned that Ebbin and Sickles were trying to redefine marriage “outside of what God has designed for human flourishing.”

“As expected, all of society, including those whose deeply held convictions have not moved with secular society, are uniformly expected to not only abide those with differing views on marriage but embrace them in their speech and celebrate them in their business life,” she wrote, the Tennessee Star reported.

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State Sen. Amanda Chase, a Trump loyalist running for governor, told the Virginia Mercury she voted against Ebbin’s measure to take “a stand for traditional values.”

“I personally believe that marriage is between a man and a woman,” said Chase, who has been formally censured for supporting the Capitol rioters and is suing her own party for holding a nominating convention in lieu of a primary. “If other people choose differently, that’s their choice, but I do not believe that this should be a constitutional amendment.”

Delegate Kirk Cox, the other Republican lawmaker running for governor, opposed Sickle’s bill in the House. Though the proposal includes a provision allowing clergy to refuse to perform any wedding, a spokesperson for the lawmaker told the Mercury that “Delegate Cox’s faith informs his views of the nature of marriage.”

“In the competition to demonstrate who is the most extreme and out of touch, Cox and Chase are neck and neck,” Anna Scholl, executive director of Progress Virginia, said in a statement. “This vote against marriage equality is just the latest example.”

On the national level, the Republican Party’s national platform — which hasn’t changed since 2016 — defends “natural marriage, the union of one man and one woman” as the cornerstone of the American family, and affirms that “every child deserves a married mom and dad.”

The GOP headquarters did not respond to a request for comment about Virginia’s proposals.

‘A tale of two states’

Carol Schall, a plaintiff in Virginia’s 2014 gay marriage case, said it is well past time Virginia’s Constitution reflect the will of the people. And there’d be a sort of historic symmetry, too: It was Virginia’s anti-miscegenation law, after all, that spurred Loving v. Virginia, the Supreme Court decision outlawing bans on interracial marriage.

“Virginia has long been on the wrong side of history when it comes to civil rights,” Schall said. “But we finally got this one right. This amendment doesn’t reflect the reality anymore.”

An associate professor at Virginia Commonwealth University, Schall has been with her wife, Mary Townley, for 36 years. The two were legally married in San Francisco in 2008, during the brief window when California recognized same-sex marriages before the passage of Proposition 8.

Schall said leaving your rights to a court decision “is kind of naive,” especially considering how the Trump administration appointed more than 50 circuit court judges and three Supreme Court justices in just four years. LGBTQ civil rights group Lambda Legal issued a report last month that found nearly 40 percent of Trump’s confirmed federal appellate judges have a “demonstrated history of anti-LGBTQ+ bias.”

Following the high court’s rejection of an appeal from former Kentucky county clerk Kim Davis last year, conservative Supreme Court Justices Clarence Thomas and Samuel Alito (neither of whom was a Trump appointee) issued a scathing dissent that said the Obergefell ruling “will continue to have ruinous consequences for religious liberty.”

“If the courts change their minds — which they do — as long as we have that amendment, the state would have to enforce it,” Schall, 60, said. “I don’t want that hanging over my family’s head.”

Schall lived in Virginia in 2006 and was canvassing outside a polling station when voters passed the Virginia Marriage Amendment. She recalled having flyers opposing the measure shoved back in her hands.

“It was terrible,” she said. “It felt very personal — like all of Virginia voted and I lost.”

Since then, she said, there’s been a seismic shift. Virginia has gone from a Republican stronghold to a solidly blue state that went for Joe Biden in November.

“We used to be the state of Pat Robertson and Jerry Falwell, of Ralph Reed. It didn’t feel safe to be out at work, to be out to my neighbors,” she said. “It’s different now. Virginia has done this mindfully, the work of educating our neighbors, and at some point the zeitgeist here shifted.”

Well, maybe not entirely, she added.

“Virginia is really a tale of two states,” she said. “In the east, you have the ‘golden crescent’ that’s pretty progressive. But to the west, we still have Liberty University. We still have people who think I’m living a life of sin.”

After officiating a same-sex wedding for two friends in 2019, Republican Delegate Denver Riggleman was censured by the state GOP for “abandoning party principles,” according to The Hill. The following summer, he was defeated in a drive-thru party convention by primary challenger Bob Good, a former athletics director at Liberty University.

And thanks to gerrymandering, Schall said, the state is more splintered than ever.

“I live in Chesterfield County near Richmond, but because of the way the Republicans have carved things up, Amanda Chase is my state senator,” she said.

Schall is confident about the new amendment’s chances but admits “the work is never done.”

“We passed it this year, but we have to keep a Democratic majority in the Assembly and a Democratic governor when it comes up for a vote again,” she said.

Half of U.S. states lack basic protections for LGBTQ people, according to a report released Wednesday by the Human Rights Campaign, the nation’s largest LGBTQ advocacy group,

The campaign’s State Equality Index, an annual ranking of laws and policies, found that 25 states lack inclusive anti-discrimination statutes and are considered at a “high priority to achieve basic equality,” the lowest of the report’s four categories. (See a map of the states here.)

“These states are most likely to have religious refusal or other anti-LGBTQ laws,” the report said. “Advocates often further LGBTQ equality by focusing on municipal protections for LGBTQ people or opposing negative legislation that targets the LGBTQ community.”

In addition to nondiscrimination policies, the index also graded states on hate crime laws, transgender health care, anti-bullying policies, parenting and adoption laws and bans on conversion therapy, among other criteria.

The report, based on 2020 data, reflects a slight improvement from 2019, when 27 states were ranked in the lowest category. Virginia moved up two spots to the “solidifying equality” category after passing the Virginia Values Act last February, making it the first Southern state to ban anti-LGBTQ discrimination in employment, housing, credit and public accommodations. Kansas moved up one spot to the “building equality” category after the state’s Human Rights Commission began accepting anti-LGBTQ bias complaints in employment, housing and public accommodations.

The Kansas commission said its revised interpretation of the Kansas Act Against Discrimination was based on Bostock v. Clayton County, Georgia, last year’s landmark Supreme Court decision that determined federal civil rights law banning employment discrimination based on sex included discrimination based on sexual orientation and gender identity.

Nineteen states and the District of Columbia were cited in the index’s highest-rated category, “working toward innovative equality,” for their “robust LGBTQ nondiscrimination laws covering employment, housing and public accommodations.” That’s the most in the report’s seven-year history, and includes newcomers Hawaii and New Hampshire.

At the same time, at least 185 anti-LGBTQ bills were introduced in 35 states last year, according to HRC. Four were signed into law, including two in Idaho: HB 500, the Fairness in Women’s Sports Act, which prohibits transgender student athletes from joining teams that match their gender identity, and HB 509, which bars transgender residents from updating the gender marker on their birth certificates. Federal courts have blocked both laws from being enforced.

This week, the Montana House of Representatives passed House Bill 112, a transgender sports ban nearly identical to Idaho’s, and House Bill 113, which would prohibit medical professionals from providing gender-affirming care to trans minors. Both measures now head to the state Senate for consideration.

“While this year’s legislative sessions will undoubtedly be shaped by the Covid-19 pandemic and the 2020 election, we also anticipate continued attacks on transgender youth, particularly in relation to athletic participation and access to best-practice, affirming medical care, to continue across the country,” HRC said in a statement.

In the 2021 session, lawmakers in seven states — Florida, Kentucky, New Hampshire, North Dakota, Oklahoma, South Carolina and Tennessee — have all sponsored measures restricting transgender participation in student athletics. Bills that would penalize or even criminalize providing trans youths with gender-affirming care have also been introduced in five states — Alabama, Indiana, Mississippi, Texas and Utah.

In addition to a trans athlete ban, Republicans in North Dakota also sponsored bills that would prohibit the state from recognizing sexual minorities and exclude same-sex couples from financial assistance with adoption. (The former, HB 1476, was withdrawn on Tuesday.)

“With serious issues like our state’s Covid-19 response and economic recovery, it’s disturbing that legislators are spending so much time attacking vulnerable transgender youth and the LGBTQ+ and Two Spirit community as a whole,” Dane DeKrey, advocacy director of ACLU of North Dakota, said.

In all, there are at least 21 anti-LGBTQ bills before state legislatures this session, according to Freedom for All Americans, which advocates for LGBTQ nondiscrimination protections.

Advocates say the flurry of anti-gay bills is in direct response to the election of President Joe Biden, who championed gay rights on the campaign trail and has called the pro-LGBTQ Equality Act a top legislative priority. In his first week as president, Biden has already issued an executive order expanding LGBTQ nondiscrimination protections in employment, education, housing and immigration.

“I think the volume of [anti-LGBTQ] bills is going to dramatically increase, particularly because of what is happening at the federal level,” Kasey Suffredini, CEO of Freedom for All Americans, an LBGTQ advocacy group, told NBC News previously. “For the opposition, this is the only avenue for their narrative that treating LGBT people with dignity and respect is a problem for the country.”

Should Congress pass the Equality Act — federal legislation that would add LGBTQ protections to existing civil rights laws — it will provide “critical baseline protections,” according to HRC legal director Sarah Warbelow, but state laws will still be important.

“State laws are often more robust than federal laws — a federal law may only cover business with 15 or more employees, for example, while a state law can apply to every business,” Warbelow told NBC News, adding that accessing state courts is often easier and cheaper.

“And there are limits to what the Equality Act can do in a lot of areas,” she added. “The federal government doesn’t have a lot of power when it comes to anti-bullying laws, or regulations about updating birth certificates or second-parent adoptions.”

Hate crime charges have been added in a grisly assault last summer that left a gay Louisiana teen in a coma for three days.

Holden White of Lafayette was just 18 when he met 19-year-old Chance Seneca on the gay dating app Grindr. After communicating for a month, the two young men decided to meet in person in late June.

White, a sophomore at Louisiana State University, Eunice, said he invited Seneca over to his new apartment, but Seneca convinced him to come to his father’s house to play video games.

After some awkward conversation, White said his next memory is of being pulled backward by a cord and being choked so severely that “all the blood vessels in my face ruptured” before he passed out.

White said that when he regained consciousness, he was naked in a bathtub looking up at Seneca slicing his left wrist.

“I remember thinking, ‘Well, this is it,’” he told The Acadiana Advocate. “The last words I said to myself were just ‘stay calm.’ Over and over and over in my head I was just repeating to myself to stay calm.”

According to the local news site, Seneca called 911 and told the dispatcher that he had killed a man. He was at the house when officers responded.

White suffered stab wounds, blunt force trauma to the back of his head and cuts on his wrists that were so deep his hands were nearly severed. He spent nearly a month in the hospital and in rehabilitation.

“When I woke up, I didn’t remember anything. I didn’t remember going to his house,” White told NBC News. “The human mind, I’ve since learned, will block out traumatic experiences.”

Since then, details from the encounter have emerged even as his body continues to heal. The scars on his neck, where White said Seneca took the tip of a knife and repeatedly twisted into his throat, have already started to fade.

He’s regained most of the use of his right hand, but his left hand is still numb and doesn’t have full grip strength. His left hand was damaged more severely — the artery and several tendons were severed — and may require more surgery.

He’s also suffered some short-term memory problems.

Seneca was arrested at the scene and charged with attempted second-degree murder, and remains jailed on $250,000 bond.

Police initially declined to include hate crime charges, claiming they believed the attack stemmed from an argument between the two men.

“There were several indicators that point us to the direction that it was not a hate crime,” Sgt. Wayne Griffin of the Lafayette Police Department told The Acadiana Advocate shortly after the initial charges were filed. “Just because of the sensitivity of the case, we cannot go into any more about it.”

Griffin declined to comment further this week and referred NBC News to the FBI.

Alicia Irmscher, public affairs officer with the FBI in New Orleans, said the agency is aware of the incident but would not address whether it was conducting an investigation.

White, however, said he was talking to FBI agents and the Lafayette Parish District Attorney’s Office about the case.

The hate crime charges, which carry an extra five-year prison sentence, were added by the district attorney on Jan. 20.

Despite the police’s initial misgivings, White is adamant he was targeted because he is a gay man.

“He chose to go on the app Grindr,” he told local news station KATC-TV. “He went on an app designated for gay people. He chose to choose someone who is gay and very proud of his sexuality. He said this in prison. He said he chose me because I have a smaller stature and it would be easier to kill me. He knew what he was doing.”

But he’s still frustrated by the police department’s handling of the case and by how long it took the attack to be classified as a hate crime.

“For them to shut it down as a lovers’ quarrel is just unbelievable,” he said. “Let’s say we did get into an argument, which we didn’t, who would go to that point over a dumb argument? To bash someone in the back of the skull with a hammer? To try and slice their hands off?”

He recalled being questioned by officers in his hospital room the day after he emerged from his coma. “They asked me the most brutal questions while I was still sedated,” he said. “They just bombarded me. When I think about it, it’s just sad.”

He also said he doesn’t understand why police failed to provide hospital staff with a rape kit to determine if he had been sexually assaulted. “It scares me that I don’t know and that I may never know,” he said.

He believes his sexuality may be a factor in how the department addressed the case.

“We always have homophobia in southern Louisiana, so if that was a part of it, I wouldn’t be surprised,” he said. “I don’t want to think it, but I can’t help it. When we go to court, I’ll still thank the police for arresting that man, but that’s all I can thank them for.”

Should the case go to trial, White knows he’ll likely have to relive the worst episode of his life. But he says he’s ready for it.

“It’s not a question of me having to think about it again. I have cross shaped scars on my wrist — I’m never not thinking about it,” he said, adding that he’s eager to give his victim’s impact statement.

“I know some people cry, or get upset. I won’t. I’ll talk to him in a proper manner and tell him how I feel. I want him to know he doesn’t scare me. Once it’s done, then I’ll be ready to move past this,” he said.

Seneca’s attorney, J. Clay LeJeune, said the additional hate crime charge came “as a complete surprise.”

“I have received no information from the State supporting this position,” he told NBC News in an email. “We will be entering a not guilty plea to the original and amended charge.”

Seneca’s next pretrial hearing is scheduled for March 2.

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Attacks based on sexual orientation represented 16.8 percent of all hate crimes in 2019, the last year statistics were available from the FBI’s Uniform Crime Report. That represents the third largest category after race and religion.

But reporting of bias incidents is not mandatory, and Lafayette is one of hundreds of cities that reported zero hate crimes for the year.

White said he’s been moved by the outpouring of support he has received, including a GoFundMe campaign for his recovery that garnered more than $100,000.“I didn’t expect to hear from people all over the world — I’ve had people from Australia text me,” he shared. “At the same time, my story was kind of swept under the rug at first. People in my home state are saying they’re just hearing about it now.”

There have also been cruel comments on social media and message threads. White said he’ll sometimes jump into a news article and respond. “They need to hear the full story. What if someone reads that comment and thinks, ‘Oh, maybe that’s the truth?’”

He urges other victims of hate crimes to advocate for themselves and not just rely on the system for justice.

“Never give up — if you stop trying, or you stop talking about your case, it can be swept away and just disappear.”

New York City now recognizes LGBTQ-owned companies as minority-owned businesses, making them eligible for billions in city contracts, as well as access to consulting, mentorship, educational programs and other resources.

The new designation, announced Tuesday by New York City’s Department of Small Business Services in partnership with the National LGBT Chamber of Commerce, will fast-track LGBTQ-owned businesses into city certification programs, including the Minority and Women-owned Business Enterprise, or MWBE, Program.

“New York City has a legacy of leadership in promoting inclusivity at every level of public life,” Justin Nelson, the chamber’s president, said in a statement. “LGBT entrepreneurs in New York City will now have the opportunity to create jobs and develop innovations that benefit all who live there.”

New York is the largest city to incorporate LGBTQ businesses in minority contracting and procurement opportunities, but it follows similar efforts by numerous other cities — including Chicago; Baltimore; Los Angeles; Nashville, Tennessee; and Philadelphia — and several states, including California, Massachusetts and Pennsylvania.

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The estimated 1.4 million LGBTQ-run companies in the United States generate $1.7 trillion a year in revenue, according to the chamber, larger than the economy of many European countries. The National LGBT Chamber of Commerce, commonly referred to as NGLCC, said its members alone contributed more than $1.15 billion to the economy in 2015.

“These small-business owners drive economic development, create jobs, and build stronger communities, all despite the latent, and often outright hostile discrimination they continue to endure on account of their sexual orientation or gender identity,” according to a statement on the NGLCC website.

In 2015, New York City Mayor Bill de Blasio set a 10-year goal to award $25 billion in city contracts to minority-owned businesses by 2025. LGBTQ-run businesses now have access to those opportunities, but NGLCC Senior Vice President Jonathan Lovitz told NBC News, “This is as much about equality as it is about contracts.”

“Getting certified is about telling our story to America — we have everything from mom-and-mom and pop-and-pop businesses all the way up to multinational corporations,” he said.

In 2019, then-City Councilmember Ritchie Torres introduced a billrequiring the city’s Small Business Services agency to certify queer-owned businesses.

“The LGBT business community is a stimulus to the American economy,” Torres, now a U.S. senator, told reporters at the time. “But even though New York City is reputed to be a bastion of diversity and equality, LGBT businesses are invisible to our government.”

Opponents feared the bill would undermine existing programs aimed at minority- and women-owned business enterprises, available to female, Black, Hispanic, Indian, Asian Pacific and Native American entrepreneurs. Openly gay City Council Speaker Corey Johnson raised concerns that, under New York state law, the city didn’t have the authority to give preferential treatment to LGBTQ contractors.

Torres’ measure failed to advance, but the chamber moved forward in its discussions with the city’s Small Business Services agency leading to the policy change.

Openly gay Councilmember Daniel Dromm said the agreement will “impact the lives of thousands of New Yorkers in a meaningful and lasting way.”

“When it comes to establishing and growing businesses, LGBTQ entrepreneurs face many significant and manifold challenges,” Dromm said in a statement Tuesday. “I am pleased that these business owners who were once excluded from sorely needed contracting and procurement opportunities will be able to participate.”

Lovitz said New York City will have a snowball effect, with other cities and states following suit. The chamber worked with the Obama administration on achieving federal recognition for LGBTQ-owned businesses, he said, but “time ran out” before an executive order could be issued.

“We’re excited about working with the Biden administration to make it happen,” he added. “If we want a seat at the table, we have to have our names printed on the place cards.” The policy announcement comes as New York City is still reeling from the economic devastation wrought by the pandemic, including a $9 billion revenue shortfall and an unemployment rate that reached twice the national level in the summer.

LGBTQ Americans are more likely to face job loss as a result of the pandemic, according to a May 2020 poll by the national LGBTQ advocacy group Human Rights Campaign and PSB Research.

“We work in industries, like the service industry, that are more likely to be impacted,” HRC spokesperson Elizabeth Bibi said previously.

Within the queer community, people of color were disproportionately affected, with 22 percent of LGBTQ people of color losing their jobs because of the pandemic, compared to 14 percent of white LGBTQ workers and 13 percent of the general population.

A Republican lawmaker in Montana has introduced a pair of bills targeting transgender youth.

House Bill 112, authored by state Rep. John Fuller, requires athletic teams at all public educational institutions — from elementary schools to colleges — to be designated based on “biological sex.” The measure, also known as the Save Women’s Sports Act, would prohibit transgender students from joining teams that match their gender identity, no matter how long ago they transitioned.

“Athletic teams or sports designated for females, women, or girls may not be open to students of the male sex,” it reads in part.

Fuller told Montana Public Radio that, as a former women’s soccer coach, he believes allowing transgender girls to play on women’s teams is unfair. His bill would allow students to sue if they feel they’ve been deprived or harmed in some way by a trans athlete participating in school sports.

“I want to protect and defend women’s sports,” he told the Helena Independent Record. “I believe this continued practice of allowing males to compete as females … is egregious and wrong.”

Another bill, also penned by Fuller, would bar health care professionals from providing transgender minors certain transition-related care.

Under House Bill 113, also known as An Act Providing for Youth Health Protection, physicians and other medical professionals are prohibited from treating gender dysphoria in minors by prescribing, providing or administering puberty-suppressing drugs or cross-sex hormones (including estrogen and testosterone); performing gender-reassignment surgery; or removing “any otherwise healthy or nondiseased body part or tissue.” Penalties for providers who violate the law would include fines of up to $50,000.

Fuller said it was “deeply wrong” for young people to undergo such procedures, according to Montana Public Radio. “We don’t let children do all kinds of things,” he told the Helena Independent Record. “Why should we allow this to happen? The state has a vested interest to protect children from such barbaric behavior.”

Fuller did not respond to a request for comment from NBC News.

Chase Strangio, deputy director for transgender justice at the American Civil Liberties Union, said that after the fallout from North Carolina’s House Bill 2, conservatives pivoted away from so-called “bathroom bills” toward legislation targeting trans youth.

“After the marriage decision, there was an immediate backlash on trans people using the bathroom — you saw dozens of these bills,” Strangio told NBC News. “Then you see the extremely affirming response — from companies, from the NCAA — and between 2017 and 2019 they lose the bathroom fight. There’s no more laws, they lose their court fights and they lose ballot initiatives.”

In 2018, Montana’s own bathroom bill garnered less than half of the 25,000 signatures needed to qualify for a state referendum.

Then, in 2019, Juniper Eastwood, a student at the University of Montana, became the first transgender runner to compete at the Division I level. That, according to Strangio, is “when conservatives start shifting to sports.”

“They start forming this narrative about trans student athletes that appears on Fox News, Breitbart, the Daily Caller. It attracts some cis women groups who were worried about female athletes,” he said, using a shortened term for the word cisgender, which means nontransgender.

That same year, Strangio said, a highly publicized custody battleinvolving a 7-year-old transgender girl in Texas became “another right-wing media moment.”

“By summer 2020, you have the Alliance Defending Freedom and the Heritage Foundation drafting these model trans-youth bills,” he added. “They’re not constituent-led. They’re put together by well-funded right- wing groups and shipped out to state legislatures. And they play on people’s fears and misconceptions.”

In 2020, the Michigan-based American Principles Project spent $4 million on political ads denouncing transgender athletes and access to gender-affirming health care for people under 18.

In addition to Montana, at least six other states — including Alabama, Indiana, New Hampshire, Mississippi, Missouri and Utah — are currently considering bills levying criminal or civil penalties for offering transition care to minors, according to the ACLU.

Lawmakers have sponsored legislation restricting transgender students from sports participation in at least 12 states, including Alabama, Georgia, Idaho, Indiana, Kentucky, Missouri, Montana, New Hampshire, North Dakota, Oklahoma, Tennessee and Washington. Only Idaho’s bill has passed so far.

Idaho’s House Bill 500, the Fairness in Women’s Sports Act, was signed by Republican Gov. Brad Little last March. A month later, Lindsay Hecox, a transgender student athlete at Boise State University, filed a lawsuit challenging the law. After a lower court issued an injunction against enforcement, HB 500 is now before the 9th U.S. Circuit Court of Appeals.

In a friend-of-the-court brief, nearly 200 elite female athletes — including Billie Jean King, Megan Rapinoe and Candace Parker — argued HB 500 “flies in the face of bedrock principles of equality and diversity in sports.”

“The global athletic community grows stronger when we welcome and champion all athletes — including LGBTQI+ athletes.” King said in a statement.

Strangio said Montana’s HB 112 is practically “a carbon copy” of Idaho’s law.

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Readings for both Montana bills were rescheduled from Wednesday to Jan. 20 to allow for public comment. Republicans, who currently control both chambers of the Montana state Legislature, will have until April to pass the measure this legislative session.

The ACLU of Montana has promised to sue if that happens.

On Thursday, more than 150 state nonprofits, businesses and professional groups joined the organization in opposing Fuller.

“Make no mistake: these bills target and attack trans youth and will cause them serious and lasting harm,” ACLU of Montana Executive Director Caitlin Borgmann said in a statement. “We cannot let fear mongering and lies about what it means to be transgender result in laws that would stigmatize trans youth, harm families and communities, and drive businesses away from Montana.”

Bozeman restaurateur Pete Strom pointed to the economic toll HB 112 and 113 could take by recalling the fallout from North Carolina’s HB2 “bathroom bill.” In 2016, North Carolina lost an estimated $630 million in economic activity related to HB2, according to Forbes.

“Montana doesn’t need that,” he said in a statement. “It’s simply common sense to oppose these out-of-touch and harmful anti-trans bills.”

With little more than a week left to the Trump administration, the Department of Health and Human Services has finalized a rule permitting social-service providers that receive government funds to discriminate based on sexual orientation and gender identity.

Critics claim the new guidance could have wide-ranging implications for agencies that address adoption and foster-parenting, as well as homelessness, HIV prevention, elder care and other public services.

“Even as Trump administration officials abandon ship, HHS has announced yet another dangerous rule that invites discrimination against the very people federal grant programs are meant to help,” Sasha Buchert, senior attorney for the LGBTQ civil rights group Lambda Legal, said.

According to the 77-page release, published Tuesday in the Federal Register, Obama-era requirements that agencies refrain from discrimination on the basis of sex, religion, sexual orientation and gender identity and recognize same-sex marriages as legally valid violate the Religious Freedom Restoration Act.

“Given the careful balancing of rights, obligations, and goals in the public-private partnerships in federal grant programs, the Department believes it appropriate to impose only those nondiscrimination requirements required by the Constitution and federal statutes,” the rule states.

Slated to take effect on Feb. 11, the rule change is targeted at child welfare organizations, according to Julie Kruse, director of federal policy for LGBTQ advocacy group Family Equality. Whether private adoption agencies receiving taxpayer money can deny services to same-sex potential parents is at the heart of Fulton v. City of Philadelphia, now before the Supreme Court.

Kruse said both President Donald Trump and Vice President Mike Pence have made allowing discrimination in adoption and foster care a priority over the last four years.

At the National Prayer Breakfast in February 2019, Trump bemoaned that St. Vincent Catholic Charities in Michigan was facing legal action“for living by the values of its Catholic faith” and turning away same-sex prospective parents. The president vowed that his administration was “working to ensure that faith-based adoption agencies are able to help vulnerable children find their forever families, while following their deeply held beliefs.”

That same year, HHS issued a  waiver  allowing a Protestant foster care agency to turn away Jewish foster parents and stopped data collection on LGBTQ youth in adoption and foster care.

In November 2019, HHS Secretary Alex Azar announced the agency would stop enforcing anti-discrimination protections against federal grantees, prompting a lawsuit by Lambda Legal and Democracy Forward on behalf of the LGBTQ social services groups Family Equality, True Colors United and SAGE. HHS has also ordered recipients of federal funding to accept employees’ religiously based refusals to perform job duties, including denying contraception to women and medical treatment to transgender patients.

According to Kruse, Tuesday’s final rule could also allow a homeless shelter to turn away a queer teen and a senior center to refuse to drive an elderly gay man to his doctor’s appointment. She’s confident it will be overturned by the incoming Biden administration, calling it a “nasty parting shot that won’t stand.” But she admits “it does clog up the works; it does delay protections.”

HHS was among nine federal agencies tasked by the Trump administration to draft guidelines safeguarding “religious freedom,” along with the Departments of Justice, Education, Labor, Agriculture, Housing and Urban Development, Veterans Affairs and Homeland Security and the U.S. Agency for International Development.

Those orders spun out of a White House faith and opportunity initiative launched in 2018 “to remove barriers which have unfairly prevented faith-based organizations from working with or receiving funding from the federal government.”

The Department of Education issued its final rule last September, determining religious universities and student groups were exempt from sex-discrimination statutes in Title iX of the Education Amendments of 1972. Then-Secretary of Education Betsy DeVos stated the change would “protect First Amendment freedoms on campus and the religious liberty of faith-based institutions.”

Dena Sher, associate vice president of public policy at Americans United for Separation of Church and State, called the DoE guidance “discrimination underwritten by tax dollars and tuition fees,” Inside Higher Ed reported.

HHS’s regulation change was announced the same day the Department of Labor’s own final rule took effect, expanding exemptions to Title VII of the Civil Rights Act of 1964 to any contractors — for-profit or nonprofit — who “hold themselves out to the public as carrying out a religious purpose.”

“Religious organizations should not have to fear that acceptance of a federal contract or subcontract will require them to abandon their religious character or identity,” Secretary of Labor Eugene Scalia said in a statement on Dec. 7.

President-elect Joe Biden’s transition team declined to comment on whether it would overturn the new HHS rule. But, in a statement, Sen. Ron Wyden, D-Ore., vowed to work with the incoming administration “to restore humanity to HHS.”

“From Day One, the Trump administration has been determined to roll back essential protections for LGBTQ+ Americans, religious minorities and other vulnerable communities,” Wyden, a member of the Senate Finance Committee, stated.

“It’s no surprise that in its last days the Trump administration has delivered a devastating blow to try and permanently greenlight taxpayer-funded discrimination and put the health and well being of children and families across the nation at grave risk,” he added.

The Trump administration has spent the past four years stacking the courts with anti-gay judges, according to a new report from LGBTQ civil rights group Lambda Legal.

Nearly 40 percent of President Donald Trump’s confirmed federal appellate judges have demonstrated anti-LGBTQ bias, the organization claimed, from opposing same-sex marriage and protecting businesses’ rights to reject gay customers to helping implement the military’s transgender ban.

Lambda Legal CEO Kevin Jennings said the report is a “call to action” for President-elect Joe Biden.

“While Donald Trump’s presidency may be coming to end, his devastating impact on our federal courts will take decades to reverse,” Jennings said in a statement. “When the basic human rights of LGBTQ+ Americans are so often challenged in court, we cannot accept a judiciary stacked with judges who would disenfranchise these vulnerable groups.”

The report, Courts, Confirmations & Consequences, also claims that the outgoing administration has seated judges faster than any other in recent history: 54 of Trump’s circuit court nominees were confirmed in four years, while President Barack Obama had only 55 confirmed in his eight years in office.

Of Trump’s 57 nominees for federal appellate judgeships, Lambda Legal opposed 22 because of their anti-LGBTQ records, including three who received lifetime appointments in 2020.

Among them is Andrew Brasher, who was confirmed in February to the 11th U.S. Circuit Court of Appeals. Previously, Brasher worked with the Alliance Defending Freedom on an amicus brief that argued that same-sex marriage was “harmful to children.”

In another amicus filing, Brasher claimed that a New Mexico wedding photographer had the right to turn down a gay couple because her involvement would suggest “approval, validation and celebration of the ceremony.”

Lambda Legal senior attorney Sasha Buchert called Brasher’s appointment an “affront to civil rights.”

“Judge Brasher’s record to undermine the rights of LGBTQ people and years of advocacy to suppress voting rights should not have been rewarded with the lifetime promotion that he just received from Republicans in the U.S. Senate,” Buchert said in a statement at the time.

Cory Wilson, who was appointed to the 5th Circuit court in June, called same-sex marriage “a pander to liberal interest groups” in a 2012 op-ed for the Press-Register of Mobile, Alabama. In another piece the same year, he defended Chick-fil-A CEO Dan Cathy’s donations to anti-LGBTQ causes, complaining that private citizens were being “bashed, banned, and bankrupted, simply for expressing their views.”

As a state legislator, Wilson backed Mississippi’s HB 1523, a controversial religious freedom law that allows businesses, state employees and even health care providers to refuse service to LGBTQ people based on “deeply held religious beliefs or moral objections.”

A month before Justin Walker was appointed to the D.C. Circuit court in September, he ruled in favor of a Christian photographer who ran afoul of the Fairness Ordinance in Louisville, Kentucky, when she advertised that she shoots only heterosexual weddings.

“America is wide enough for those who applaud same-sex marriage and those who refuse to,” Walker, then a district judge for western Kentucky, wrote in a 27-page opinion. “The Constitution does not require a choice between gay rights and freedom of speech. It demands both.”

Other confirmed Trump nominees whom Lambda Legal has opposed are D.C. Circuit appeals Judge Gregory Katsas — who, as deputy White House counsel, provided legal advice for the administration’s ban on transgender service members — and 5th Circuit appeals Judge Kyle Duncan, who represented the Virginia school district that tried to ban transgender student Gavin Grimmfrom using the bathroom aligning with his gender identity.

Lambda Legal did not oppose the nomination of Patrick Bumatay, now the first openly gay judge on the 9th Circuit appeals court. In February, Bumatay issued a dissent saying the Idaho Corrections Department was under no obligation to approve a prisoner’s request for gender-affirming surgery.

The country’s 13 federal appellate courts (12 circuit courts representing different regions across the U.S. and the Federal Circuit Court in Washington, D.C.) sit just one level below the Supreme Court. They are the final arbiters in tens of thousands of cases annually, because the Supreme Court traditionally takes up only a hundred or so.

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“Circuit court judges exert tremendous influence in shaping our nation’s laws and have a profound impact on the everyday lives of Americans,” the report reads.

Trump appointees account for nearly a third of the 179 circuit judges. In nine of the 13 circuits, his picks are a quarter of the active-duty (i.e., non-senior status) judges. He also appointed 174 of the 644 judges on federal district courts.

White House deputy press secretary Judd Deere praised Trump’s “unmatched record” of appointing judges who believe in applying the Constitution “as written, not legislating from the bench.”

“The President has always been transparent with the American people about the qualifications he considers paramount and who he would consider for a seat on the High Court in order to ensure this exceptional nation built on the rule of law continues for generations to come,” Deere said in an email.

Before he leaves office on Jan. 20, Trump will also have appointed three Supreme Court justices: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

While Lambda opposed all three, Gorsuch issued the majority opinion last year in Bostock v. Clayton County, Georgia, a landmark decision that determined that the Civil Rights Acts of 1964 barred workplace discrimination based on sexual orientation and gender identity.

“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result,” Gorsuch wrote in the ruling in June. “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”

Sharon McGowan, Lambda Legal’s chief strategy officer and legal director, warned that there are many other areas in which Gorsuch has “been much more skeptical about the rights of LGBT people.”

She pointed to his joining Justice Clarence Thomas’ concurring opinion in the 2018 Masterpiece Cakeshop case, in which Thomas argued that the Colorado Civil Rights Commission violated baker Jack Phillips’ right “to freely exercise his religion” by requiring him to sell a wedding cake to a gay couple.

And in a dissenting opinion in Pavan v. Smith, Gorsuch argued in 2017 that the court’s landmark 2015 Obergefell v. Hodges ruling, which made gay marriage legal nationwide, didn’t guarantee the right of same-sex parents to have both their names appear on their children’s birth certificates.

“While some arguments can reach him … he’s certainly not a reliable vote,” McGowan said.