Kentucky is likely to pass a bill that will bar public school employees from state licensure if they are trans, and it also creates a new template for broader anti-trans laws.
The Republican bill started as a minor tweak to licensing rules, but the GOP sneakily introduced an amendment that will ban trans teachers in the state, which will be adopted by default unless opposed by Tuesday March 28. The amended SB 351:
* classifies trans people as mentally ill
* bars teachers, coaches, school counselors, and school librarians from licensure that allows them to work in public schools.
* requires the state to investigate if anyone reports a teacher having “easily identifiable signs” of a gender disorder (such as appearance or use of pronouns). This includes compelled medical examinations where the educator must turn over the results to the state board.
* requires physicians statewide to use the outdated DSM-III diagnostic criteria (published 1980) rather than the modern DSM-5 (2013) definitions around gender dysphoria
As of today (March 28) the bill has passed the House 96-0 and is coming up on a final vote in the Senate. This bill is on the consent calendar for this Tuesday (March 31). Being on the consent calendar means the bill is expected to pass with little or no floor debate. If it passes on Tuesday, it will go back to the House for approval of the Senate’s changes before going to the Governor’s desk.
The amendment targets trans people without mentioning gender or trans issues at all, which is why it hasn’t received media attention or public opposition yet. The amendment bars the education licensing board from issuing/renewing licenses for people diagnosed with any disorder that was excluded from the ADA’s Helms Amendment.
Some history: when the ADA was being debated in 1989-1990, it was intended to be a broad, sweeping civil rights law for all people with disabilities. However, conservative lawmakers claimed that the law’s broad definition of “disability” would grant federal protection to individuals they deemed “immoral” and “socially deviant”. Thus they added the Helms Amendment which contained a list of exceptions, explicitly carved out to not be protected under the ADA:
> The term ‘disability’ shall not include— (1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; (2) compulsive gambling, kleptomania, or pyromania; or (3) psychoactive substance use disorders resulting from current illegal use of drugs.
The Helms Amendment was intended to ensure transgender status would not qualify as a disability that would require “reasonable accommodation” from employers.
In 2022, Williams v. Kincaid (fourth circuit ruling) held that Gender Dysphoria is a protected disability under the ADA because it is a modern medical condition distinct from 1980s era Gender Identity Disorder, so the exclusion in the Helms amendment doesn’t apply. By requiring Kentucky medical boards to use the DSM-III criteria, legislators are effectively trying to bypass modern federal court rulings by forcing the state to use the exact terminology that the ADA forbids.
That’s going to tee up a fight between state licensing power and federal civil rights laws, and a major part of that battle will be whether a state legislature has the authority to legally mandate the use of a 40-year-old medical manual that has been superseded by modern medicine.
We also need to be on alert for future bills using this as a template for broader exclusionary laws. If Kentucky successfully argues that it can ban diagnosed individuals from teaching, this logic could easily be extended to other state-licensed professionals, like doctors, nurses, lawyers, social workers, hair dressers, etc.
SB 351 also requires all licensees, at risk of felony perjury, to sign a declaration that they have never been diagnosed or treated for a gender disorder (based on DSM-III criteria). Requiring that sort of declaration creates a model for excluding trans people from any state-regulated benefit or position.
!ping LGBT&LAW
Approximation_Doctor on
Friendly reminder that you don’t hate Republicans enough, and should really try to increase how much you hate them.
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Kentucky is likely to pass a bill that will bar public school employees from state licensure if they are trans, and it also creates a new template for broader anti-trans laws.
The Republican bill started as a minor tweak to licensing rules, but the GOP sneakily introduced an amendment that will ban trans teachers in the state, which will be adopted by default unless opposed by Tuesday March 28. The amended SB 351:
* classifies trans people as mentally ill
* bars teachers, coaches, school counselors, and school librarians from licensure that allows them to work in public schools.
* requires the state to investigate if anyone reports a teacher having “easily identifiable signs” of a gender disorder (such as appearance or use of pronouns). This includes compelled medical examinations where the educator must turn over the results to the state board.
* requires physicians statewide to use the outdated DSM-III diagnostic criteria (published 1980) rather than the modern DSM-5 (2013) definitions around gender dysphoria
As of today (March 28) the bill has passed the House 96-0 and is coming up on a final vote in the Senate. This bill is on the consent calendar for this Tuesday (March 31). Being on the consent calendar means the bill is expected to pass with little or no floor debate. If it passes on Tuesday, it will go back to the House for approval of the Senate’s changes before going to the Governor’s desk.
The amendment targets trans people without mentioning gender or trans issues at all, which is why it hasn’t received media attention or public opposition yet. The amendment bars the education licensing board from issuing/renewing licenses for people diagnosed with any disorder that was excluded from the ADA’s Helms Amendment.
Some history: when the ADA was being debated in 1989-1990, it was intended to be a broad, sweeping civil rights law for all people with disabilities. However, conservative lawmakers claimed that the law’s broad definition of “disability” would grant federal protection to individuals they deemed “immoral” and “socially deviant”. Thus they added the Helms Amendment which contained a list of exceptions, explicitly carved out to not be protected under the ADA:
> The term ‘disability’ shall not include— (1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; (2) compulsive gambling, kleptomania, or pyromania; or (3) psychoactive substance use disorders resulting from current illegal use of drugs.
The Helms Amendment was intended to ensure transgender status would not qualify as a disability that would require “reasonable accommodation” from employers.
In 2022, Williams v. Kincaid (fourth circuit ruling) held that Gender Dysphoria is a protected disability under the ADA because it is a modern medical condition distinct from 1980s era Gender Identity Disorder, so the exclusion in the Helms amendment doesn’t apply. By requiring Kentucky medical boards to use the DSM-III criteria, legislators are effectively trying to bypass modern federal court rulings by forcing the state to use the exact terminology that the ADA forbids.
That’s going to tee up a fight between state licensing power and federal civil rights laws, and a major part of that battle will be whether a state legislature has the authority to legally mandate the use of a 40-year-old medical manual that has been superseded by modern medicine.
We also need to be on alert for future bills using this as a template for broader exclusionary laws. If Kentucky successfully argues that it can ban diagnosed individuals from teaching, this logic could easily be extended to other state-licensed professionals, like doctors, nurses, lawyers, social workers, hair dressers, etc.
SB 351 also requires all licensees, at risk of felony perjury, to sign a declaration that they have never been diagnosed or treated for a gender disorder (based on DSM-III criteria). Requiring that sort of declaration creates a model for excluding trans people from any state-regulated benefit or position.
!ping LGBT&LAW
Friendly reminder that you don’t hate Republicans enough, and should really try to increase how much you hate them.