While podcast hosts may express opinions about policies impacting children and families, they are not taking any positions on specific legislation or candidates. More broadly, no statements made by hosts or interviewees should be understood as representing a university position on any particular candidate for political office, legislation or ballot initiative.

Please note: This transcript was automatically generated. We have reviewed it to ensure it reflects the original conversation, but we may not have caught every transcription error.

Bethy  0:17 

Equitable schools start with an informed voting public, but education policy, both locally and nationally, can get confusing quickly. Welcome to the NEPC Talks Education Podcast, where we bring people into policy and invite you into the conversation. On this show, we focus directly on policies impacting minoritized communities and how we are all implicated in both the deepening and the healing of historical and current inequities. I'm your host Bethy Leonardi, and I'm joined by Zander Nowell. As a disclaimer, hosts and guests may express opinions about policies impacting children, families, and educators. These are ours, and they don't represent a university or organizational position. Also, no statements made by hosts or interviewees represent a university or organizational position on any particular candidate for political office, legislation, or ballot initiative. Today, we are grounding our conversation in two ballot initiatives in Colorado that are part of a larger context of legislation targeting trans youth and adults across the country. We will hear directly from the parent of a young trans person, who shares her experiences and insights into how these kinds of policies impact their family. Then we'll be joined by Scott Skinner Thompson, who will help us better understand the context and implications of policies like these. First, though, Zander will shed light on what these two propositions actually are, and what implications they have if passed.

Zander  1:44 

Thank you, Bethy. On today's episode, we are zooming in on two Colorado ballot initiatives that target the rights of trans youth: Propositions 134 and 135. Both are citizen-initiated state statutes advocated for by a political advocacy group called Protect Kids Colorado. If it's passed, Prop 134 would add an article to the Colorado state statutes that defines male and female based on biological reproductive system, and would require schools and athletic associations to expressly designate teams as male, female, or mixed. Female designated teams would not be open to a participant that the policy defines as a male participant, while participants defined by the policy as female would not be able to play on a male designated team unless there's no female team available. The policy further delineates that every school must adopt a policy implementing this change, and the commissioner of education would enforce it. Prop 135 would prohibit healthcare professionals from performing surgeries as a form of gender-affirming treatment for minors, including the use of state, federal, Medicaid, or insurance funds to pay for such procedures. In 2025, Colorado passed a law called the Protect Access to Gender-Affirming Healthcare Act, which requires that health plans cannot deny or limit gender-affirming healthcare that is medically necessary, as determined by the physical or behavioral healthcare provider, and prescribed in accordance with generally accepted standards of care for the profession. These Colorado examples are part of a larger story of policies targeting trans rights. A total of 29 states have rules that regulate participation around gender-based sports, and 27 states have passed laws prohibiting surgeries for trans minors. All of these laws have been passed through Republican-led state legislatures since 2020, which shows how recently this issue has been introduced into public discourse. This is the first year these kinds of laws have been undertaken through ballot measures. Washington, Arizona, and Nebraska all have measures related to gender and sports. Missouri also has a ballot measure related to prohibiting gender-affirming care for minors.

Bethy  3:53 

Thank you, Zander. And so our podcast is designed to listen to and raise up voices of people most impacted by policy, and we want to mention that you know, in preparing for this episode, it was difficult to find those people because of fear of attacks and backlash, and this is not new. Throughout history, people who've been the most persecuted have been afraid to speak out for fear of retaliation and violence. This most impacts communities that experienced state-sanctioned oppression and the cost is high. You know, not only do stories get silenced, which leaves an uninformed public, but communities hold in their bones the traumas that they endure and continue to endure. It's probably a whole other episode, so I'll stop there and, with gratitude, introduce a parent who did agree to talk with us. This is a parent of a trans kiddo here in Colorado who agreed to speak with us on both the impacts of 134 and 135 on their family. Here we go. Welcome. Thank you, and thank you for agreeing to spend a little time with us.

Parent  5:08 

Of course.

Bethy  5:11 

So the first question that we have, as a parent of a brilliant, lovely trans kiddo, with all the shifts with regard to healthcare for trans youth. How have you navigated care for your kiddo?

Parent  5:26 

Well, my daughter's 12, and she transitioned when she was just turned six. So we've been in a healthcare journey for about six years, and through a lot of that, we had what I would describe as a relatively normal, and what I think should be everyone's right to access to care with specialists that were available in her insurance. And with the administration changes a couple years ago, I was really afraid that we might lose access, and what I was afraid of happening did happen. The care she was receiving, the clinic shut down, opened up a little bit again for a moment, and then shut down again. Another clinic that we had moved to closed, so we're now down to like one provider who is basically set up an entirely new clinic that doesn't take a certain kind of federal money. So they can still practice because fortunately I've been so grateful to be in the state of Colorado that protects my kids' right to access to healthcare. But federal money is being leveraged in a way to close anybody who's taking certain kinds of federal money. So it's been a really sad and challenging process, and I'm aware of how much extra effort I've had to put in as a parent to find, track, communicate these changes to my kiddo in a way that gives her the information she needs, but doesn't feel as destructive or as bullying as it could be for her.

Bethy  6:57 

A lot of what we talk about with regard to policies and legislation is not just that these policies might exist or legislation might go into effect, but the discourse and the narratives around transness in general. Can you talk a little bit about how the discourse has impacted you and your family, and even your kiddo, if that's something that’s happened?

Parent  7:24 

Yeah. And I think what I'd say is that I've the approach I've taken through the last several years is to be really thoughtful about how I talk to my child about transphobia. I tend to position it in the context of phobias in general and help her understand social justice and marginalization in a really wide lens, so that what she experiences that could be experienced very personally and experienced as deeply impactful. I mean, as a child growing up, to feel a community or cultural different. for some real, true part of you, I think, is is really damaging. And so, I have wanted to make sure that she gets to understand like her identity through a wide power and privilege lens, and not just have to take the full heat of transphobia herself, but having it get closer and closer to home has been a really emotional process of the amount of information I give her. I just actually had a conversation with her last night about the proposition that's up around kids and sports, and I could just feel the personal the way that that it coming this close feels really different to her than the the general concept of transphobia out in the world. Yeah.

Bethy  8:58 

Yeah, yeah. So, what do you think, or what would you like for the school's role to be in not just raising awareness, but teaching about gender diversity? Is that are there things that work in the school that your kid is in that you want to share with the broader community?

Parent  9:19 

Yeah, the school district allows children to have pronouns that they've chosen to be listed on school records. They are allowed to use their chosen name in school records. So there's a baseline support that I am really grateful that the school district I'm in has chosen to take. In terms of the specific school, I you know sometimes as question is hard to answer because it feels so obvious to me that like kids should just get to be a kid and safe and who they are in their school community. So I'd say that the school that I'm in has an affirming stance on pronouns. Also has an affirming stance. Space for non-binary kids teaches about they/them pronouns in their curriculum because it's actually not that complicated, and also I'd say probably more fundamentally, my kids go to a school that just allows gender expression to be along a wide continuum and and is not just consistently trying to form a duality, so like kids can be their full express selves, which I think is important for cisgender kids too. Like I think freedom of being, freedom to just simply be yourself as a kid and one on whatever a spectrum of gender expression you're on. That actually feels like probably the most important thing to me that any school or any educators can do is to understand your bias around expectations around gender expression, and that's like how kids present, how they talk, what kind of energy they bring, how they play, who they play with, that they actually just get freedom to be it and do it without being without expectations or pigeonholing happening based on your their gender identity or your assumptions about their gender identity. I think that's probably the thing that feels most important to me.

Bethy  11:09 

Yeah, thanks for that. I'm going to switch back to the Prop 135 about surgeries on minors. Now there's like discourse around transness that wasn't here a few years ago. I mean, 10 years ago, we never heard about trans stuff. Now it's everywhere, because at least to some degree, it's on ballots, and so people are talking about it, and people have very ill-informed ideas about what happens and what all this means, and conversations, and so kids aren't making these decisions on their own. You know, already it's like parents, doctors, mental health professionals-they're already involved and for a long period of time. So, can you maybe talk a little bit about like even like what goes in to making a decision together as a team to actually do a certain thing with a child or with a young person?

Parent  12:11 

Yeah, yeah, I do appreciate that, and it's also been one of the things along the way that I felt most baffled by. Is like my experience inside this space is so different than it's than the presentation in the media. You know, my experience is getting to work with really like small clinics with practitioners who are often very tender and kind-hearted people who have made the choice to be supporting kids because they feel like it's the right thing for them to have access to healthcare, but that actually have a very measured approach to supporting trans kids' medical healthcare. Like these are not inconsequential decisions for parents or kids; they are significant. The multiple decisions you can make needs to be have really thoughtful medical information options, weighing pros and cons, and that's what I see happening. That's certainly the path I've taken as a parent. Is really thoughtful conversations over many years, many years. That's part of why the clinics I've worked with start working with kids younger is to actually just allow them to build a relationship with medical personnel, so that they have an understanding of of trust of the possibilities available to them. Information is always presented age appropriately, and and like real information about pros and cons of all the options. So my experience has been that it just feels like a very gentle, very, very measured, very reasonable space with really good doctors who have no no other intention other than being the best doctors they can be. Which, like any other doctor practicing any other kind of specialty, is providing information and care and letting families make really big decisions. My experience has been that the people that actually have real lived experience in this space, their actual experience and stories are so far. I mean, really, as you described at the opening, is that the fear and the discomfort, especially in the face of the amount of rhetoric and hate around trans identities, like the the access to people's stories in that space is really is much more limited than the amount of stories about like completely baseless, made up concepts and fears from people who really don't know a single trans child, have never talked to or worked with a doctor working with trans kids. Like it's it's it's, it's wild how much feelings and righteousness people can have about this particular issue, having truly no experience in it.

Bethy  14:54 

Awesome. You know, there's another bill, or there's another ballot measure, which is banning trans students in sports. Do you want to talk a little bit about that?

Parent  15:07 

Yeah, I mean this one hits a little closer to home because it's very directly relevant to my daughter who loves to play sports, and I think what I'd say as a parent is one like there's already a tremendous amount of caution around sending my trans daughter into into any sports team locally, even though I live in a generally politically supportive district, the fear of of other kids support and welcoming of her, of parents supporting and welcoming her is already a concern, and so the idea of like adding this layer of just sort of severed access feels really hard and really sad. In the conversation I had with my daughter last night about this proposition, I talked to her about how it would feel if she wasn't allowed to play on a girls' team, and she said, "Well, I probably wouldn't play them. Like it's kind of that simple and so sad. Yeah, just feels that one's also a bit hard to put into words, like the emotional like tenderness of it of having your kid denied access to something that they love so much, and you know, notably, this really is intended to limit trans girls specifically, so yeah, that really you know could significantly affect like not only her joy and growth and pleasure of getting to play on teams, which is like the primary importance of sports growing up, but also like limits her potential of developing her skills in different sports as she gets older and what her life could look like. So it's very, very real, very real consequences for my family.

Bethy  16:51 

Thank you for hanging with us and sharing your experience. And hopefully, together we will keep plugging away to make this a world that honors and loves all of our kids,

Parent  17:04 

Hear hear.

Bethy  17:13 

So to help us make sense of policies like these, including anti-trans policies more generally, we're joined today by Professor Scott Skinner Thompson. Scott is a professor at the University of Colorado Law School, where his research and teaching focuses on constitutional law, civil rights, and privacy law, with particular emphasis on LGBTQ and HIV issues. Welcome, Scott, and thank you so much for being here.

Scott  17:39 

Thanks so much for having me, Bethy.

Bethy  17:42 

So, to begin, will you help orient us in the landscape and history of anti-trans policies? What are the important policies or dynamics to know, and how do these ballot initiatives sort of fit within those?

Scott  17:56 

Yeah, well, you know, policing of of trans people isn't necessarily new, you know. Many sort of generally applicable laws have been used to subordinate them. Whether it's like you know bans on or dress codes and things like that, bans on cross dressing, of course, had a negative impact on on trans people. But the wave of anti-trans legislation sweeping the nation is is really alarming. I mean, if you if you think back a decade ago, right, North Carolina passed the first so-called bathroom bill, HB two, and that that was met with widespread public backlash, and ultimately led to the, you know, many people believe it contributed significantly to the the defeat of the Republican governor in the the subsequent election. Fast forward a decade, admire how things have have changed, and now you know you have about half of the states enacting you know more than a dozen different kinds of categories of anti-trans legislation, and I think it's really important to think about. You know, a lot of these laws get challenged in isolation. You know, oh, a bathroom bill will be challenged. A restrictive identification document law will be challenged. A ban on gender affirming care will be a challenge, but really they work together and are operating to you know push trans people from public life altogether. And I think you know without creating a false equivalency, they in many ways operate you know, in similar ways to Jim Crow's laws, right? They're trying to push trans people from the public sphere and public space, and I and I think, you know, it's equally important to realize, right? We're going to talk about some ballot initiatives that are on the. In Colorado, but so so trans lives are literally being debated. They're they're on the ballot, right? And yet, trans people are being disenfranchised from even expressing views about their lives. All right, if you can't get an accurate identification document, if you live in a state with a strict voter ID, you may have barriers to voting, so you can't even participate in the democratic process about your own identities.

Bethy  20:30 

Yeah, I mean, I'm thinking about that too, in particular with youth who are implicated in in these policies, and they can't vote at all, even if the policy context, or in in the voting context, is is in their favor if if it's safe for them to to go to the to the ballot.

Scott  20:48 

It’s it’s an excellent point.

Bethy  20:52 

So the community member that we talked to shared a little bit about how these policies might impact their family. What does research, including your own ad about how the implications of these policies land on actual people.

Scott  21:06 

Well, there's important research suggesting that law, right, and we know this from many many contexts, right? That law has what's referred to as a positive effect, and I don't mean that in like a normative way, like a good effect, but that law communicates values to people and and to society and influences how people think about things, right? And so an example of this is, you know, after the Supreme Court legalized same-sex marriage in Obergefell, right? Public opinion responded to that right, and upped up public opinion regarding same-sex marriage ticked ticked up in a positive direction. Similarly, when laws communicate that people don't belong, that there's something wrong with them, that impacts how people think about that issue, including the people who are being stigmatized, right? So the law, these laws communicate a message of unbelonging or judgment regarding trans people, and and and that is incredibly sad and can have negative health impacts on trans people. But make no mistake, trans people, despite you know what certain Supreme Court justices may suggest, trans people are are real. They are beautiful, and they deserve to be celebrated at at every turn.

Bethy  22:32 

Right. I mean, because what counts as normal. I mean, to your point earlier, you know, it's like when we when we talk about even if a a gay or a trans person is mentioned; it's political, right? Well, the fact that it's not mentioned is political, right? But they don't see it like that. That's just what what counts as normal.

Speaker 6  22:51 

That's right.

Bethy  22:52 

Anytime something bucks what counts as normal, it's somehow somebody's agenda or it's political. When the reverse is also true. Do you want to like? How would you? What do you want the public to know? I mean, this podcast is like we're trying to bring policy to the people. We want people to know that these policies actually impact not just trans and queer families, but everybody. You know, like our our community member said, you know, this this impacts cisgender people too, and so are there things that you would want to say about each or both of those?

Scott  23:28 

On 134, the Colorado proposition that would ban trans athletic participation. I mean, I I think it's really important for everyone to appreciate that the the way the statute defines male and female is with regard to how the person's biological reproductive system is organized around the production of either the ova or or the sperm, right? But then it doesn't really tell you like how we figure that out. So so so if I sus if someone suspects that someone is not complying with the proposition, what happens, right? Do you know? And and so let's say it basically is going to open up policing of all kids potentially gender presentation, right? Because if somebody doesn't look the part, they're going to come under increased scrutiny under the law, and I don't think we want to be policing our kids' gender expression, regardless of whether they're transgender or not. Not, and then on 135, which would bar trans youth from having surgery to help them live consistent with their their gender identity. I mean, I think a couple things are really critical to appreciate. First, this is a massive invasion of people's individual medical authority, right? Like in the. Same way that a law banning abortion infringes on females' medical autonomy, a law banning trans people's ability to get healthcare infringes on their medical autonomy, and so you know the response is, oh, but these are youth. Well, youth, in conjunction with their parents and their doctors, are also entitled to to healthcare, and the law is written in such a way that you know it prohibits people from from doing anything that impacts biological sex characteristics, and so that could have an impact on cisgender youth as well. For example, it's not uncommon for young cis males to have large amount of breast tissue and want to reduce that. This law, depending on how it's interpreted, could prevent that. More broadly, right? Like this is a this is a solution in search of a problem because the the governing standards of of care for the treatment of trans of gender dysphoria in youth, you know, it is a very rare case that trans youth are even having surgical interventions. When when they do, it's it's needed, right? It's needed, and it's not to say it shouldn't happen. But what I'm saying is, this is there's not some. The proponents of this say that there's all this mutilation of children going on. No, this this rarely happens, and when it happens, it's not mutilation. It's helping the child live consistent with their gender identity, as as only they can know it. And we really the bill is in many respects, the state coming in and telling a kid, "We know better than you who you are. We know who you are. You do not know who you are. And I, I, I think that people of all stripes and all political persuasions can probably recognize that really the state has no business telling us who we are.

Bethy  27:00 

Amen. Amen to that. You know, isn't it interesting that we believe all the cis kids that they're cis, and we question the trans kids who know they're trans?

Scott  27:09 

Yes.

Bethy  27:11 

I mean, in the same way that you know, I when people you know you have parents of like you know seven year olds, and they have a boy and a little boy and a little girl, and they're like, "Oh, are you two? Look, you might be boyfriend and girlfriend one day. Like they, they are old enough to know that they might like each other. But if a little kid says, "I actually also like girls, we are like, "Ah, how could you possibly know?

Scott  27:34 

Right. Right.

Bethy  27:35 

It's it's a double standard for like, what do kids know? They know when they fit into the norm. Right. They know when they fit in the norm, they don't, right? And like how how brave of them when like everything around them is saying be normal,

Scott  27:48 

Right.

Bethy  27:49 

And they're saying that doesn't make sense to me, and then we question them,

Scott  27:54 

Right.

Bethy  27:54 

How insulting,

Scott  27:56 

Right? Yeah, yeah.

Bethy  27:58 

Yeah. I want to broaden the scope a little bit because I feel like it fits with what we're talking about right now. I'm thinking about ballot measures that essentially allow the majority to vote on the civil rights of the minority. In this case, trans people, and again, trans youth who actually can't vote, but also like immigrant communities, women, and I just want to maybe hear your thinking around you know, who protects the rights of the minority? What efforts like these, so citizen-initiated bills that take away life chances, what does that do to democracy?

Scott  28:32 

Well, it's it's a critical question. I mean, we we believe in democracy in this country, right? But we also have a judicial system that is, in many respects, designed to be countermajoritarian and to put the put the brakes on or provide some checks against majoritarian impulses, because majoritarian impulses are sometimes dangerous, right? And you know, you don't need to be a sort of expert historian to to find many examples of that, right? Like the the institutions of of slavery were horrific examples of majority oppression of minority groups, and part of our constitutional structure is for the judicial system to check democratic impulses, right? The the judicial system is not wholly democratic, right? And it is designed to intentionally so check those potentially tyrannical majority laws. And a good example of that is out of Colorado, right? You know, it was 34 years ago in 1992 that the the majority of Colorado citizens passed Amendment Two, which prohibited the state or any locality from enacting a law to protect lesbian, gay, or bisexual people. The Supreme Court struck that down right under the Equal Protection Clause and set. We recognize that Colorado, you're doing. You're this was democratic, right? People voted a plebiscite, arguably the most direct form of democracy. It wasn't even the representatives; it was the people themselves. But the court said no, that even when you're acting with a full-throated democratic action, if that action is designed to target or stigmatize a minority group, and here not not necessarily a group that was entitled to heightened constitutional review, right? That a law motivated by pure animus or pure desire to harm is unconstitutional under the equal protection law, and I and I think that that decision holds important lessons for the you know our society today. That as we're thinking about laws that specifically target a group, a small group, and say, no, you don't have access to this health care. No, you can't participate in this sport, and we look at how these laws are not just happening in a single context, but in many, many, many, many contexts. All those contexts add together to suggest that these laws are motivated by a desire to exclude rather than any legitimate government purpose.

Bethy  31:21 

Well, thank you so much for being here and sharing your important insights and work. 

Scott  31:29

Thank you, Bethy, for having me. 

Bethy  31:33 

All right, so we'll end each episode with some reflective questions for you to ask yourselves and those around you. Here are the ones for this week. What do you see as your responsibility to protect the rights of groups that are in the minority that you might not be a part of? What stories and lived experiences do you need to seek out to better understand how to advocate for or against policies? How might you advocate for gender equity in your local and school communities? And how might you engage your school boards in conversations about topics important to the positive experiences of LGBTQ+ students in schools? Thanks so much for listening and learning with us. Until next time.