Laws at odds
LGBTQ rights are in crossfire
Arkansas this year became the first state to ban health care for trans youth, the second state to ban transgender athletes in sports, and one of only a handful of states to allow the refusal of healthcare services on religious or moral grounds.
Nationally, President Joe Biden’s election expressed support for LGBTQ rights on multiple occasions. Exemplified in the appointments of the first openly gay Department of Transportation secretary, Pete Buttigieg, and the first trans-woman Department of Health and Human Service assistant secretary, Dr. Rachel Levine.
Executive order 13988, “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” was the Biden administration’s fourth executive order. The order extended non-discrimination on the basis of sex, sexual orientation, and gender identity to all federal laws.
This is not without conflict. The Tenth Amendment states that “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” In March, the state Legislature passed House Resolution 1018, expressing discontent with equal rights for LGBTQ Americans.
However, this separation of powers question requires a highest court to resolve. In this case, President Biden cites the landmark Supreme Court decision of Bostock v. Clayton County (2020) in defense of his executive order. Through this understanding, President Biden’s interpretation of the executive power is justified. Trump-appointed Justice Neil Gorsuch led the opinion, and wrote concerning the 14th Amendment that “only the written word is the law, and all persons are entitled to its benefit.” White House Press Secretary Jen Psaki defended the executive order, stating, “Trans rights are human rights.”
Article II, Section I of the Constitution vested “executive power” in the president, identifying executive orders as a recognizable and legitimate presidential power. For example, despite President Biden’s broad executive orders, by four-year term, President Trump issued more than any other president since Jimmy Carter. Every president, aside from William Henry Harrison, has used them. Under Article II, Section 3, the president “shall take care that the laws be faithfully executed,” executive orders were a recognizable feature for presidents to properly carry out the laws.
This executive order is an essential protection for LGBTQ folk as the U.S. Senate is stalled on voting on the Equality Act. Unsurprisingly, our elected state politicians have worked to undermine these aforementioned protections.
Biden’s executive order reverses Arkansas Act 137, or the “Intrastate Commerce Improvement Act” of 2015. It reads, “[a] county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.”
This was challenged by the City of Fayetteville, which was affected alongside Eureka Springs and Little Rock. On a vote of 7-0, the Arkansas Supreme Court ruled that “sexual orientation and gender identity” was not a protected classification in Protect Fayetteville v. City of Fayetteville (2017).
Meanwhile, on March 25, Gov. Asa Hutchinson signed into law Senate Bill 354, or Act 461, the “Fairness in Women’s Sports Act.” This act prohibits trans-girls from competing with their female counterparts. This is also an economic issue, as the NCAA has a clear trans-affirming policy toward their sports competition, something they argued when deciding to pull events from North Carolina in wake of its “bathroom bills.”
The next day, SB289, or Act 462, the “Medical Ethics and Diversity Act,” was signed. This bill grants medical practitioners, health-care institutions, and healthcare payers the right to conscientiously object to any health-care service based on religious, moral, or ethical grounds.
House Bill 1570 was vetoed by Hutchinson, but the Legislature overrode the veto on the “Arkansas Save Adolescents From Experiments (SAFE) Act.” This legislation prevents trans-affirming care. Restrictions have been scientifically shown to increase rates of youth suicide and depression. The governor argued that it was “government overreach” and that the law was “extreme.” Meanwhile, another proposed law, HB1749, is meant to require public school employees to address public school students only by the name and sex designated on their birth certificate, regardless of personal preferences.
This political power play isn’t simply partisan. LGBTQ Arkansans live unprotected, threatened by egregious violations of human rights. The Constitution grants state powers if the federal government has not acted, something challenged by Article II, the 14th Amendment, and Supreme Court judicial review power derived from Marbury v. Madison (1803).
The president’s executive orders, when constitutional, meaning not in conflict with other federal branches, must be upheld. The restrictive laws of the state of Arkansas challenge the constitutional rights of both the president and Arkansas residents.