White House calls wave of anti-LGBTQ bills ‘awful.’ But can Biden do anything to stop it?

A day after the Kansas Legislature overrode Democratic Gov. Laura Kelly’s veto to prohibit transgender women from participating in school sports, White House press secretary Karine Jean Pierre walked to the podium in the press briefing room and said it had been one of the worst weeks for anti-LGBT laws in 2023.

That same week, she said, the North Dakota Senate had passed 10 anti-LGBTQ laws in one day. In Idaho, the governor signed a bill banning gender-affirming care for transgender kids, as did the governor of Indiana.

“Look, this is awful news. Let’s be very clear about that,” said Jean Pierre, the first openly LGBTQ person to hold her role. “LGBTQI+ kids are resilient. They are fierce. They fight back. They’re not going anywhere. And we have their back. This administration has their back.”

As a wave of anti-LGBTQ laws have moved through Republican-controlled legislatures across the country — most often targeting transgender youth — the White House has frequently used its bully pulpit to offer support for the LGBTQ community.

In March, Biden marked Transgender Awareness Day by issuing a report from the Department of Health and Human Services about the mental health of transgender youth and issued guidance on gender inclusion at federal agencies.

In April, the administration invited actresses from the remake of the trailblazing lesbian focused television show The L Word to the press briefing during Lesbian Visibility Week and Biden put out a statement marking the 70th anniversary of the Lavender Scare — which followed an executive order by Dwight Eisenhower banning LGBTQ people from working in the federal government.

That same month, the Department of Education unveiled a new rule aimed at preventing blanket bans against transgender athletes like the one passed in Kansas. It will likely go into effect later this year.

But the Biden administration’s rhetoric and attempts to offset the state laws creating a patchwork quilt of restrictions for trans people to navigate across the country are hampered by a lack of support from Congress.

“It’s affirming, it’s encouraging to know that you have support at the highest levels of government but it doesn’t necessarily change your day to day challenges when you live in a place like Missouri or Florida or Georgia or Texas or, we’re looking at like the majority of states in the country right now,” said Cathy Renna, the communications director for the National LGBTQ Task Force.

For years, activists have pushed for Congress to pass a bill called the Equality Act. Its supporters have called it an urgently necessary bill, one that would prevent discrimination against the LGBTQ community and effectively negate some of the state laws that have been aimed at the community by state legislatures.

But that law failed to win passage under the Democratic-controlled Congress in 2021 and 2022, stalling in the Senate after winning passage in the House. The newly empowered Republican majority in the House does not support the bill — last month, it passed a bill banning transgender women from participating in school sports.

Rep. Sharice Davids, a Kansas Democrat and the first LGBTQ person to represent the state in Congress, said she was still attempting to build support for the legislation.

“All Kansans, including LGBTQ+ Kansans, deserve to live their lives safely and securely, and while extremist politicians across the country are trying to strip away our personal freedoms, I’m working in Congress to protect them,” said Davids, a co-chair of the Congressional Equality Caucus. “I continue to urge my colleagues to support the Equality Act and will work to protect all LGBTQ+ Kansans, especially our youth as they face higher rates of suicidal inclinations.”

The lack of legislation from Congress — aside from last year’s Respect for Marriage Act, which was intended to legally shore up same-sex marriage rights guaranteed by the 2015 U.S. Supreme Court decision Obergefell v. Hodges — has left the Biden administration with limited options for how it can intervene to support LGBTQ rights.

“It’s amazing that the administration is so for it,” said Heidi Ellis, a political consultant who focuses on LGBTQ policies. “But without the Equality Act passing on the national level which would protect us on the state level, we are light years away and we’re losing that battle, frankly, with some of the state legislatures across the country.”

Where the administration can step in, it’s often in conflict with legislation passed at the state level.

The administration has promulgated rules through the Department of Housing and Urban Development to protect LGBTQ people from being discriminated against when it comes to federal housing policy, like federally funded homeless shelters and domestic violence shelters. That’s in conflict with the new Kansas law, which would ban transgender people from gender specific public accommodations.

The Department of Health and Human Services has tried to use the Affordable Care Act to prevent discrimination against transgender and gender non-binary people, building on a U.S. Supreme Court decision that said the federal government could not discriminate against LGBTQ people in the workp because of Title VII of the Civil Rights Act, which guarantees non-discrimination protections on the basis of race, color, religion or sex.

But the administration has the strongest legal arguments within the Department of Education, where the federal government has the power to regulate schools that receive its funding because of Title IX.

Last month, the Department of Education unveiled new rules aimed at preventing states from implementing blanket bans to prevent trans athletes from participating in school sports. Instead, it requires that schools take into consideration the sport, its competitiveness and the athletes’ grade levels.

The effort has met some resistance among Republicans in Congress, where several have filed legislation regarding transgender rights. Sen. Josh Hawley, a Missouri Republican, said he doesn’t support the Biden administration’s rule and instead would want to see legislation passed to ban trans athletes.

“Regular people do not support this,” Hawley said. “And when you say like, ‘Well, it’s about compassion.’ You can be compassionate without saying that I as a parent have to have a biological male in my girl’s sports.”

Hawley has proposed legislation of his own that would allow people to sue if they felt they were misled when getting gender-affirming care. A 2023 study in a journal of the American College of Plastic Surgeons found that of 1,989 people who went through gender reassignment surgery, only six patients wanted a reversal.

Sen. Roger Marshall, a Kansas Republican, proposed legislation last Congress that would have forbidden transgender youth from accessing puberty-blockers, which are often used in gender-affirming healthcare. Marshall also sponsored his own bill to ban transgender women from participating in school sports that match their gender identity.

When asked if he felt the federal government should pass legislation regarding transgender rights, Marshall put the blame on the Biden administration.

“Unfortunately, this administration has weaponized the issue,” said Sen. Roger Marshall, a Kansas Republican. “So when they want to withhold federal funding if you don’t have a transgender bathroom, a transgender sports, withhold funding like for school lunches, those types of things, I think it does become a federal issue.”

Along with administrative policies, the Biden administration has begun challenging some of the laws passed by state legislatures. The Department of Justice has already filed a lawsuit in Tennessee, over the state’s law that prevents transgender youth from accessing gender affirming medical care.

But, with a conservative majority on the Supreme Court, some argue that the best legal arguments lie at the state level. In Missouri, after state Attorney General Andrew Bailey, a Republican, attempted to promulgate rules to restrict transgender Missourians from accessing medical care, opponents pushed to keep the lawsuit in state court rather than federal court.

“There’s a real risk that the courts will reject some of their efforts, if not many of their efforts,” said Anthony Michael Kreis, a law professor at Georgia State University. “In which case Congress will really have to shoulder responsibility and pass legislation in the coming couple of years.”

In the meantime, the policies have created a new set of challenges for LGBTQ people in conservative-leaning states, as their legislatures have marched forward in passing increasingly restrictive laws. For many, Renna said, they’re facing a decision on whether to leave their home state.

“They leave their families, their communities, their churches, their schools because they feel like their life is in danger, essentially,” Renna said. “I know people would say ‘you’re being dramatic.’ I’m not. Kids will die. People will be impacted both mentally and physically by these pieces of legislation and policy. They’re not just hurtful, they’re mean. They’re backed up by junk science.”

Brandon Barthel, a Kansas City-based endocrinologist who provides gender-affirming care for adults, said the current approach from Republicans has been to attack transgender care at the state level. He said he doesn’t have much of an opinion on the federal government stepping in.

“I just think health care should continue to follow the best available evidence and government at all levels should stay out of making decisions about care that should be left up to physicians and patients,” Barthel said.

Star reporter Kacen Bayless contributed to this article.