Social and Cultural Issues in the 2023 State Legislative Sessions

This article is part of our latest series: Major Issue Trends in 2023: State Legislative Recap. In this series, our experts examine the high-level legislative trends they saw in the 2023 state sessions. In addition to discussing the most prevalent issues considered by state policymakers, they explore some of the more surprising emerging trends we noticed, plus what to expect in 2024 for many of these policy areas. The series will be released during November and December, with new articles each week. Explore the full series here, and be sure to sign up for our email list so you don’t miss out on any articles (check the “Blog Posts” box).

Every legislative session inevitably includes a focus on some set of social and cultural issues, and 2023 was no exception. Topics such as LGBTQ+ rights, reproductive health, parental involvement in education, and other fronts in the “culture war” dominated the attention of state legislatures across the country. Some of the problems and solutions were familiar, while others were entirely novel. All of these topics reflect a recent American trend of increasing political polarization that will likely continue as the presidential election approaches in 2024. 

Legislation Addressing Transgender Individuals

The rights of lesbian, gay, bisexual, transgender, and queer people have been a major point of contention in American politics for decades. Since the landmark U.S. Supreme Court decision finding a constitutional right to marriage in Obergefell v. Hodges, the focus on LGBTQ rights has shifted to other aspects of day-to-day life, in particular as they apply to transgender people, i.e. those individuals who identify as a gender other than that associated with their sex assigned at birth.

An emergent issue in this space this year was gender-affirming care, referring to any treatment intended to change a person’s body to be more in alignment with their gender identity. Actions on this issue were highly politically polarized. Lawmakers in Republican trifectas generally focused on protecting minors from undergoing treatments they might regret later in life, as reflected in the enactment of restrictions on treatment for minors in Georgia (SB 140), Nebraska (LB 574), and Texas (SB 14), among others. Some Democratic lawmakers shared this concern too, and Maine, a Democratic trifecta, enacted LD 535, establishing consent requirements for provisions of gender-affirming hormone therapy to a minor.

Other enacted legislation in Democratic trifectas sought to preserve and even expand access to gender-affirming care. For example, Nevada enacted SB 163, requiring health insurance providers to provide coverage for gender-affirming treatment in certain circumstances. This was an active issue this year, with a high volume of legislation that progressed through the legislatures but did not make it into law and is sure to be a major legislative focus in 2024.

Bathroom Bills

More familiar topics in the transgender rights space were also the subject of legislation in 2023. States continue to enact “bathroom bills” such as Florida’s HB 1521, signed into law by Governor Ron DeSantis (R) in May, which prohibits a person from willfully entering a restroom or changing facility designated for the opposite sex. Lawmakers in North Dakota enacted HB 1473, which requires certain public restrooms and locker rooms to be designated according to biological sex and prohibits a person from using such a facility designated for the opposite sex. 

Student Sports and Other Education Policy

State lawmakers also considered a number of bills focused on transgender students’ participation in school sports. Transgender people often prefer to compete on teams designated for the gender with which they identify, but opponents argue that this can create an unfair advantage, particularly when athletes assigned male at birth wish to compete on teams designated for women or girls. This has led to the rise of an unlikely cadre of women’s sports advocates, whose supporters in state legislatures have introduced a raft of legislation prohibiting athletes from participating in events designated for the opposite biological sex. Historically, these bills have been focused on sports in K-12 public schools, such as Missouri’s SB 39, which was enacted into law in June. However, 2023 also saw an expanded focus on intercollegiate athletics, reflected in the enactment of legislation such as Texas’ SB 15 and Alabama’s HB 261. Similar bills were introduced in Ohio (HB 68) and Maine (LD 930).

Education continues to be a major battleground when it comes to social policy, as has already been suggested in our discussion of bathroom bills and transgender athletes. Following the 2022 enactment of Florida’s Parental Rights in Education law, known to opponents as the “Don’t Say Gay” law, legislative clashes over discussion of gender and sexuality in schools became far more widespread in 2023, with 36 states introducing legislation on the topic. Many of these bills took a similar form to North Carolina’s SB 49, which would have prohibited instruction on gender identity, sexual activity, or sexuality from being included in the curriculum provided in grades kindergarten through fourth grade. Others took on aspects of the student-teacher relationship, such as Arkansas’ HB 1468, which prohibits any school employee from addressing an unemancipated student with a pronoun or name that is inconsistent with the student's birth certificate without the written permission of the student's parent or guardian. A bill in Arizona, HB 2711, would have taken this a step further, requiring a teacher to inform a student’s parents of any information the teacher learns regarding the student’s gender identity or sexual orientation.

Critical Race Theory

Debates over discussion of race in schools also continued in 2023. Since the protests following the death of George Floyd at the hands of Minneapolis police in 2020, many Republican lawmakers have become staunch critics of Critical Race Theory. Critical Race Theory, sometimes abbreviated as CRT, is an arcane legal critique that considers the ways in which racial hierarchies are consciously and unconsciously reflected in the conduct of public institutions. Proposals put forth have sought to restrict the ways that race may be discussed in public elementary, secondary, and postsecondary schools. The trend continued this year and resulted in the enactment of bills in Florida (SB 266) and Arkansas (SB 294) to restrict certain activities related to race in public schools.