June 22, 2023

How the Dobbs decision helped lead New Mexico to become a safety state for LGBTQ individuals

Hannah Grover

Elycia Herrera talks to Matt Dodson while protesting the U.S. Supreme Court overturning Roe v. Wade.

The U.S. Supreme Court’s Dobbs decision unleashed “some real darkness” for the LGBTQ community nationally, but New Mexico responded with a landmark legislative year for LGBTQ rights.

The Human Rights Campaign declared a national state of emergency earlier this month for LGBTQ Americans because more than 75 anti-LGBTQ bills have been signed into law in 2023 in states across the country. The Human Rights Campaign, a national LGBTQ organization, calls the number of anti-LGBTQ bills “unprecedented.”

Marshall Martinez, executive director for Equality New Mexico, said this is “arguably the most politically dangerous time in American history for queer and trans folks.”

“We can’t deny that when this Supreme Court was seated, when they issued the Dobbs decision, they signaled very clearly to the state and local governments across the country, you can do what you want to attack bodily autonomy and we’re not going to stop you,” Martinez told NM Political Report.

In the Dobbs decision, Supreme Court Justice Clarence Thomas wrote a concurring opinion that the court needed to revisit other cases that rest on the 14th amendment, including Obergefell v. Hodges, which codified same-sex marriage, and Lawrence v. Texas, which codified same-sex relationships.

Adrien Lawyer, director of education and co-founder of Transgender Resource Center of New Mexico, said he doesn’t see how reproductive rights and LGBTQ rights are separate politically. Lawyer said the Dobbs decision made cisgender women and LGBTQ individuals second class citizens.

“People think of reproductive healthcare as a woman’s issue. We see it differently. It includes people who can get pregnant. You can have a uterus if you’re gender nonbinary or a transgender man. It’s about all those who face stigma, including trans and nonbinary folks. It’s a move to relegate people so they are not able to make their own choices,” Lawyer said.

Lawyer said the Dobbs decision is a “symptom of the darkness already unleashed.”

“It’s one of the milestones in this vitriolic political climate since 2016…the politics of 2016 unleashed all of this and now we’ve seen it come to its natural conclusions,” Lawyer said.

New Mexico

The 2023 legislature passed a record number of bills this year that protect the LGBTQ community in New Mexico. Martinez said the fact that two reproductive healthcare bills included gender-affirming care is not exactly a result of the Dobbs decision but that it played a role. He said it’s a little more nuanced.

“We can’t deny this political moment for those bills to be successful. But we can’t deny success because of decades of work,” Martinez said.

The two bills, one that shields providers from out-of-state forces trying to criminalize or penalize abortion or gender-affirming care, and one that prohibits discrimination against that care, passed the legislature in March and were signed by Governor Michelle Lujan Grisham. SB 13, Reproductive Health Provider Protections Act, and HB 7, Reproductive and Gender-Affirming Healthcare Act, respectively, went into effect last week.

Related: Two reproductive healthcare laws go into effect today

State Sen. Linda Lopez, D-Albuquerque, who sponsored the shield law, said that the two bills work “in tandem to make sure we provide the best protection in New Mexico.” 

State Rep. Linda Serrato, D-Santa Fe, said she is “really proud of the gender-affirming care aspect” of the anti-discrimination bill.

Serrato said that while talking to members of the community after Dobbs, she heard individuals anticipating the court’s ruling would leave gender-affirming care open to attack.

“We should be in front of that,” Serrato said.

Lawyer said TGRC and similar organizations in New Mexico are receiving calls from out-of-state individuals who are trying to navigate the legal implications of traveling to the state for gender-affirming care when they live in states that criminalize it. He said the phone calls are so overwhelming TGRC and some sister organizations are seeking funding to hire a part-time staff person to field the phone calls.

“We’re also getting calls from doctors in New Mexico,” Lawyer said. “New Mexico doctors call us to say ‘we’re getting out-of-state calls’ and they call us about liability.”

Despite the protections the new laws provide for gender-affirming care, there is a shortage of gender-affirming care providers in New Mexico. Lawyer said that is especially true for children who need gender-affirming care. Martinez said the gender-affirming healthcare shortage is no different from all other medical provider shortages in the state.

But, he hopes that the attention New Mexico receives for passing two gender-affirming healthcare bills will encourage healthcare providers to move from states where abortion and gender-affirming care are criminalized to come to New Mexico where that care is protected.

Ellie Rushforth, a reproductive rights attorney with American Civil Liberties Union of New Mexico, said that with the passage of the LGBTQ legislation in the legislature earlier this year, the state has built on a strong foundation to protect the LGBTQ community.

“I’m very proud of that but it takes more; it takes showing up in community conversations when someone is saying something harmful. It takes showing up at city council meetings when folks are stigmatized,” Rushforth said.

Another important piece of legislation that Martinez said makes New Mexico the most protective LGBTQ state in the nation is HB 207, which expands the scope of the state’s Human Rights Act to prohibit public bodies and contractors who work for public bodies from discriminating against LGBTQ individuals. It also includes very expansive definitions of gender, gender identity and sexual orientation.

Martinez credits the definitions as coming from “a table of queer and trans people who know how they feel and how people treat them,” instead of lawyers.

“We believe our shield law, SB 13, is the strongest shield law in the country and it’s the only one that also includes gender-affirming healthcare. We can say we’re the most legally protected state. We have broad definitions that encompass the entire queer and trans community and it’s from our experience, not what someone thinks is legally sound,” Martinez said.

HB 207, sponsored by state Rep. Kristina Ortez, D-Taos, also became law on Friday. 

Another bill, HB 31, which removed the requirement of announcing a legal name change in a local newspaper through a legal advertisement, also became law on Friday. State Rep. Christine Chandler, D-Los Alamos, sponsored that law.

Lawyer said this combination of bills protecting LGBTQ individuals are “huge for folks.” He noted that during the last 60-day legislative session, in 2021, the LGBTQ community rallied to kill an anti-trans sports bill that failed to pass its first committee hearing. But, during the next 60-day session, in 2023, the LGBTQ community worked to codify protections. He attributes the change to the Dobbs decision.

“Let’s not just wait to see what bad shit they throw at us and defeat it, let’s make New Mexico a safety state,” Lawyer said of the response.

Lawyer said the current climate reminds him, somewhat, of the 1980s when AIDS created a galvanizing moment for the LGBTQ community. He said the vitriol around LGBTQ individuals, particularly trans and gender nonbinary individuals, is part of a historical cycle.

“People had to come out [in the 1980s because of the AIDS crisis]. Personalizations are one of the main things that shifts culture. People have to know someone. Visibility isn’t the win, it’s the tool. People have to come out of the closet. Public education, all that stuff matters, but the fundamental factor that changed things, you can’t keep going with persecution when people are real people to you,” Lawyer said.

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