Indiana's slate of anti-LGBTQ+ bills part of national fight over 2020 Supreme Court decision

Indiana lawmakers filed nearly two dozen anti-LGBTQ+ bills during this year’s legislative session, up from a peak of seven over previous years. The explosion in bills targeting LGBTQ+ Hoosiers is part of a national trend, in which state legislatures across the country proposed more than 500 bills in 2023.

Policy analysts say out-of-state groups are taking a fight over a 2020 Supreme Court decision to the Indiana Statehouse.

Emma Vosicky is the executive director of GenderNexus, which provides social supports for transgender and gender-diverse Hoosiers of all ages, and their families.

She testified several times during the legislative session against anti-LGBTQ+ measures as an expert, alongside social workers and medical professionals.

“None of that mattered,” Vosicky said. “It was–it was like talking to people who had already made up their mind.”

Vosicky said parents she works with told her they're looking at "safe states" to move, because they cannot stay in Indiana.

“They don’t know how much longer they can protect their child in Indiana,” she said. “And what they’re really saying is, we don’t know how much longer we can protect our child from the state.”

In reality, the fight that played out at the Indiana Statehouse has very little to do with Hoosiers or their families. Instead, it’s a larger fight against a 2020 U.S. Supreme Court decision: Bostock v. Clayton County, Georgia. The court ruled that transgender and gay Americans were protected from employment discrimination “on the basis of sex.”

That decision accelerated conservative opposition to LGBTQ+ rights, said Jason Pierceson. He’s a political science professor at the University of Illinois Springfield.

“They've really been working in the legal arena to try to limit its application, but also in these legislative fights, mostly in the state–at the state level, where Republicans control all levers of government,” Pierceson said. “They've really been using that as a path to try to resist the mandates of Bostock, or the potential mandates of Bostock.”

Pierceson said groups like the Alliance Defending Freedom and the American Legislative Exchange Council, more commonly known as ALEC, are leading that charge. The Alliance Defending Freedom supported nearly all of Indiana's anti-LGBTQ+ measures this session.

And the organization told State Affairs Indiana earlier this year that it was asked to consult on those measures by lawmakers.

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The goal, Pierceson said, is to attract legal challenges and eventually get them to the Supreme Court to whittle down Bostock.

“That's why you've seen such a proliferation of these policies in the last couple of years,” Pierceson said. “It isn’t because there's a groundswell of demand from the public. It's because there's a groundswell of supply from groups like ADF.”

Pierceson said he’s skeptical that this strategy will work, given how recently Bostock was decided.

“Jurisprudentially, with the Constitution, with Bostock, with other statutes and discussion of sex discrimination – it's hard to imagine the courts not having a pretty strong foundation for protecting transgender rights,” he said. “And if they don't, it will probably be for purely ideological reasons that those judges are movement conservatives who, like the conservative movement, don't think trans people exist and want to try to eliminate protections in the law.”

Indiana’s transgender girls sports ban from last year – which was also supported by the Alliance Defending Freedom – was nearly identical to bans in Idaho and Montana. This year’s gender-affirming care ban for trans youth shares parallel language with Arkansas’s ban. And the law that limits classroom discussion on “human sexuality” repeats similar language to Florida’s “Don’t Say Gay” law.

Allison Chapman is an independent legislative researcher and transgender activist who tracks anti-LGBTQ+ legislation across the country. She said these measures are an organized effort.

“And you can see it in the bills, right? You read a bill – I've read the same bill 10 times in 10 different states. Language changes ever so slightly, but it's the same bill,” Chapman said. “They might be tweaked for each state depending on, you know, what state it is, but they are essentially the same bill.”

Andrew Downs, director emeritus for the Mike Downs Center for Indiana Politics, cautions that this kind of exchange is not new. But what may have taken groups days or weeks to share language, now takes a quick email or Google search.

“When you think about, on what issues would Indiana be likely to be targeted? Well, they're certainly going to be conservative issues,” Downs said. “And Indiana is–is going to be, you know, fertile ground for somebody who's pushing conservative issues.”

That process has a real human effect, said Emma Vosicky, GenderNexus executive director. She said this slate of laws has dire consequences for gender-diverse and other LGBTQ+ Hoosiers.

“Whether conscious or not, part of the purpose of the bills that are being presented is to say that you should be scared. And I think people are picking up on that,” Vosicky said. “It’s OK not to see somebody as another human being, because our legislature told us that it’s OK to do that.”

Lauren is our digital editor. Contact her at lchapman@wfyi.org or follow her on Twitter at @laurenechapman_.

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