Passage of laws preempting local action on transgender rights and race and racism in schools accelerates since 2019

The pace of states using preemption to control local authority has quickened and expanded in the United States around issues related to rights of student athletes who are transgender, and the ways race and racism may be taught in US classrooms, according to new data capturing preemption across 15 domains published today by the Temple University Center for Public Health Law Research with the National League of Cities.

At the end of 2022, there were 19 states with laws prohibiting transgender student athletes from playing on single-sex sports teams aligned with their gender—in 2020, only one state (Idaho) had such a law.

These laws almost all target trans girls: 15 of the 19 states with laws in place in November 2022 specifically prohibit trans girls from participating on girls’ sports teams. The remaining four states, which also restrict participation by trans boys, provide exceptions for participation by “biological females” or “any student” on boys’ teams if there are no comparable girls’ teams.

The laws are part of a larger legislative trend targeting transgender individuals, particularly transgender youth, as captured in the data since August 1, 2019.

The data also show a sharp increase in laws governing how race and racism are taught in US classrooms.

As of November 1, 2022, 16 states had passed laws restricting the ability of educators to talk about race and racism in the curriculum. In 2019, only one state had a similar law. All 16 states provide details of the specific concepts that cannot be taught; five states explicitly prohibit teaching Critical Race Theory.

Seven states impose penalties for discussing race and racism in the classroom. Two of those states name specific penalties for teachers (Arizona and New Hampshire) and principals (New Hampshire).

“By tracking these laws, we are better able to understand the misuse and abuse of preemption, especially when it limits the ability of cities to respond to the needs of their residents,” said Julia Bauer, MPA, Preemption Research Specialist, National League of Cities. “Each of these policies impact cities, their residents, and the available tools cities can use to help their communities, whether through housing and zoning options, taxes and budgets, education, and more.”

The data, published on the Center’s interactive website LawAtlas.org, provide a detailed outline of the extent of state efforts to prevent localities from passing laws.

The 15 policy domains captured in the data are ban-the-box, firearms, mandatory inclusionary zoning, municipal broadband, mandatory paid leave, rent control, and six types of tax expenditure limitations that restrict a local government’s ability to set, assess, or levy property taxes. These include full disclosure tax requirements (also called “truth in taxation”), general revenue limits, general expenditure limits, property tax rate limits, tax assessment limits, and tax levy limits. Three new policy domains—race and racism in education, transgender rights, and local control over police budgets—have been added to the data since their original publication in 2019.

“Local governments are often the best equipped to support the needs of their communities. When that ability is taken away, it’s important for us to understand the effects on Americans,” said Amy Cook, JD, a senior law and policy analyst at CPHLR and lead researcher on this project. “In this update, we see a distinct trend toward regulating very specific groups of Americans. Capturing these laws is the first step in knowing just what that means for their lives.”

While the domains of race and racism and transgender rights saw considerable preemption movement since 2019, the data show minimal change in the other 13 domains captured in the data. Some notable findings include:

• Four states preempt local control over police budgets—Florida, Georgia, Missouri, and Texas. Florida was the first state to pass its law in April 2021.
• Three states—Alabama, New Hampshire, and Utah—added new preemptive elements to their laws related to local regulation of firearms. Alabama and New Hampshire added language to their laws explicitly prohibiting political subdivisions from enforcing federal firearm restrictions; Utah added the ability for individuals to bring a civil action against the municipality if they felt a local jurisdiction had violated their rights by violating the state’s firearm preemption law (i.e., passing a local firearms law).
• Ohio passed a new law explicitly prohibiting local governments from passing any laws imposing rent control or rent stabilization on private landlords.

The newly updated data are created using a scientific legal mapping method called policy surveillance developed by CPHLR.