March 22, 2023

2023 legislative session a landmark one for the LGBTQ bills

The New Mexico State Capitol, or Roundhouse Wikicommons.

The 2023 Legislature was a landmark session for LGBTQ bills, according to advocates.

Marshall Martinez, executive director of Equality New Mexico, said three bills passed in the 2023 Legislature that make this past session a watershed moment for the LGBTQ community: A bill to add discrimination protections to LGBTQ residents, a bill to protect those practicing and seeking gender-affirming care and a bill to end the requirement to publicize a name change in the newspaper.

Martinez said the two bills that are especially unique are the Reproductive and Gender-Affirming Healthcare Act and the Expansion of New Mexico Act.

The Reproductive and Gender-Affirming Healthcare Act, sponsored by state Rep. Linda Serrato, D-Santa Fe, prohibits public bodies from discriminating against individuals seeking reproductive or gender-affirming healthcare. Hobbs and Clovis and Roosevelt and Lincoln counties have passed ordinances that both make it harder for reproductive health clinics that provide abortions  to apply for a business license and prohibit medication abortion prescriptions through the mail despite federal approval. The new piece of legislation carries consequences of a $5,000 fine, plus attorney’s fees, if violated. No county or municipality has passed an anti-gender-affirming care ordinance in New Mexico, Martinez said.

But, “there was definitely fear,” that it would happen and that’s why the bill’s passage was especially important to the LGBTQ community, he said. Gov. Michelle Lujan Grisham signed the bill Thursday.

Martinez said once the U.S. Supreme Court overturned Roe v. Wade last year, opponents to LGBTQ individuals felt “emboldened” and that the same people who attack reproductive rights are often the same people who attack access to gender-affirming care because both are about bodily autonomy. He said the attacks often start by groups stoking fear at the school board level to encourage school boards to pass policies based on rigid binary concepts of gender.

Martinez said what makes HB 7 unique is that, while other states have passed or considered legislation to protect access to abortion care in the wake of the fall of Roe v. Wade, New Mexico is “the first to add gender-affirming healthcare to those protections.”

“This is huge for us because we said we’re going to protect gender-affirming healthcare for trans and nonbinary folks proactively at the same time we’re protecting abortion care access. That made it unique and different,” Martinez said.

He said gender-affirming care can be “medical care, it can be surgical care but it can also be behavioral healthcare. It can also be social transitioning.” 

“We’re saying local governments and school districts can’t criminalize people for accessing very basic needs, like seeing a therapist or counselor or getting a haircut that affirms someone’s gender,” he said.

Martinez said he believes the passage of this bill into law helps to create a supportive environment for the LGBTQ community and could be especially helpful to transgender and nonbinary children who suffer high rates of suicide, suicide ideation and suicide attempts.

“Every trans person who says ‘I want this haircut and style of clothes,’ no one in the local community can criminalize or discriminate against them or their parents for that,” Martinez said.

He said the legislation is also especially important because in some neighboring states gender-affirming healthcare is under attack.

“Texas is now criminalizing parents who support the transition of their kids,” Martinez said.

Martinez said the Expand Human Rights Scope, which passed the Legislature and is now sitting on Lujan Grisham’s desk, is also a first.

“This is the first bill we know of in the nation with these very expansive definitions of gender, gender identity and sexual orientation. We believe, if it is signed, that it will be the most protective nondiscriminatory law in the country,” he said.

Sponsored by state Rep. Kristina Ortez, D-Taos, Expand Human Rights Scope updates the language in the New Mexico Human Rights Act by replacing the word “handicap” with “disability,” and also defines sexual orientation, gender and gender identity. It also ensures that public bodies and contractors who contract with public bodies cannot discriminate against LGBTQ individuals. A grievance would go to the state Human Rights Commission.

Martinez said the definitions of gender and gender identity are defined “expansively.”

“The definition is nuanced but it refers to expression or perception of masculinity and femininity. It puts into law that gender is a very fluid spectrum and we all land in different places on it. No other state has said or done that,” Martinez said.

He said the bill is also important because it closes a loophole that inadvertently allowed discrimination against LGBTQ individuals by public bodies. He said another reason the legislation is important is because the bill added that contractors who contract with governmental entities also cannot discriminate.

“It adds contractors to the language. If you get taxpayer dollars, whether you’re an official government entity or you contract for one, you can’t discriminate. That’s a pretty big deal,” Martinez said.

Martinez said including a recognition of gender fluidity into state statute is important because it does two things.

“It is important especially to this youngest generation of folks who have an understanding of gender that is beyond what I’m used to. These young people have taught me things about gender that is mind blowing. By putting it into law, we’re saying affirmatively that we recognize that gender isn’t binary. What young people grow up knowing and feeling and teaching us, we’re affirming that into state law. That is one of the first true steps to culture change,” Martinez said.

Martinez said the legislation is also important because it defines sex into law and the word has never been defined in state statute before.

“Intersex has never been mentioned in the law before. Sex is male, female and intersex,” Martinez said.

He said the word gender is defined in the legislation as the way the world sees an individual while gender identity is defined as the way a person sees themselves.

What that means, Martinez said, is that an individual’s self-perception is more important than how the world sees that person.

Martinez said this creates “three layers of protection.”

“It doesn’t matter what I look like if I’m telling you this is my identity,” Martinez said.

The No Publication of a Name Change eliminates a more-than-century-old requirement  that if a person wants to change their name or their child’s name in New Mexico, the individual must take a legal advertisement out in the local newspaper. Sponsored by state Rep. Christine Chandler, D-Los Alamos, it helps both transgender individuals as well as survivors of domestic violence and sexual assault who want to change their names for safety purposes.

That bill also passed the legislature and is waiting for Lujan Grisham’s signature.

The legislation allows, if a person undergoing a name change is under the age of 14, that the child would need only one parental signature, not two, for safety reasons if the other parent is abusive. A judge would determine if the child is in danger.

“This process will be safer for everyone,” Martinez said.

Martinez said the passage of this legislation also lessens the financial burden. For some newspapers, a legal notice can be expensive, Martinez said. He called it “an equity issue.”

“Especially for trans folks and for survivors of violence. Trans folks still struggle for gainful, stable employment in many communities and when a person is escaping a violent home situation, they are often starting over completely in terms of resources. The second most common reason survivors of domestic violence don’t leave their abuser is because they can’t afford to,” Martinez said.

Part of what makes this a watershed year, Martinez said, is that with the passage of the Reproductive and Gender-Affirming Healthcare Act and the Expand Human Rights Scope Act, “this is the first time in 20 years that we have proactively talked about the experience of trans people in the legislature.”

“We’ve really centered trans people,” he said.