A controversial trans rights bill is expected to come before the full state Senate Monday, after sponsors agreed to changes to allay concerns from prominent LGBTQ groups.
A coalition of national LGBTQ legal groups worried the original bill was vulnerable to legal challenges.
Last Thursday the Senate Judiciary Committee removed a controversial part of House Bill 1312 dealing with child custody issues. That section would have required a family court to consider a parent’s refusal to recognize their child’s transgender identity when making custody determinations. It was a flashpoint for opponents who said the policy would infringe on parents’ rights, especially their personal values and religious beliefs.
LGBTQ groups also encouraged sponsors to remove that section.
“It’s just not necessary. It’s duplicative of powers that judges already have, and it would just create a target,” said Shannon Minter, the Legal Director of the National Center for Lesbian Rights. Linter said that section would have put a red flag on the bill without meaningfully protecting trans children .
He said LGBTQ advocates need to be smart and make any laws they pass as legally bulletproof as possible, so they “can’t be easily attacked or picked on or undone” by conservative courts.
Minter signed onto a letter along with other leaders from national LGBTQ groups urging changes to the bill in late April. As a trans man, he has worked as a lawyer in the area of transgender rights for more than three decades. He said the ways these issues play out with family law, anti-discrimination laws, and school policies mean the details really matter.
“There’s some very tricky legal technicalities, and it’s very easy to just accidentally kind of put a foot wrong that will then make the bill vulnerable to attack, which of course nobody wants.”
Other organizations also said the bill’s recent changes are positive.
“As advocates, we need to deliver real solutions, thoughtfully crafted to weather the storms,” said Andrew Ortiz, Senior Policy Attorney at Transgender Law Center in a statement to CPR News.
Ortiz said Transgender Law Center and other partners including Minter’s group, National Center for Lesbian Rights, and Advocates for Trans Equality are heartened by the amendments made to the bill.
“Transgender young people and their parents, loved ones, and allies are fighting for their freedom to be themselves and be in control of their own futures,” he said. “We look forward to the strongest possible version of this bill crossing the finish line.”
The bill still has strong opposition and cleared its last committee only after a ten-hour hearing. Some of the people testifying against it said they would leave the state if the government tries to impose its will on how they should raise their children.
Republican Sen. Lisa Frizell of Castle Rock, who voted against House Bill 1312, said parts of it strike fear into many Coloradans. Frizell said she understood backers are trying to create an environment for everyone in the state of Colorado where they feel safe, but, “you can’t at the same time create an environment where the vast majority of the people who live here and have children live in fear of what we are going to do in this building.”
Other changes to the bill
Democratic Sen. Faith Winter, the bill’s main Senate sponsor, also removed language that would have made it unlawful to publish materials that deadname or misgender a transgender person by using their name and gender prior to transitioning.
She said the change makes it clear that it’s still okay “to use someone’s government name or legal sex for legitimate public purposes or when required to by law,” said Winter.
The bill would still define deadnaming and misgendering in the state’s anti-discrimination laws. But Winter clarified that the bill isn’t trying to go after people who make an honest mistake.
“This isn’t if someone shows up at your workplace and you call them the wrong name or misgender them. There has to be intentionality to cause harm. And so this is about the action to the individual and not just the speech,” she explained.
Minter said focusing on the action, and not the speech, is important.
“This is about a pattern of singling someone out and treating them differently in the same way that if you call someone names or use language that’s racist or sexist, when you’re referring to an individual person, that can constitute discriminatory conduct.”
The bill also includes less legally tricky sections on things like making it easier to change gender markers on state IDs, and giving students more flexibility and options for adhering to any part of a school dress code, regardless of gender.
Winter continues to work with legal groups and the Governor’s office to fine tune a portion of the bill that seeks to protect out-of-state parents or guardians who assisted their child in receiving gender-affirming care in Colorado.
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