FL Bill Makes Transphobia Accusations Defamation, $35k Penalty
Every day, a new bill is released that targets the transgender community in new and cruel ways. HB991 in Florida is the newest example, which could charge people $35k for transphobia accusations.
It seems like every day, policymakers in red states draw up new and cruel ways to target the transgender community. Florida has been no exception to this, where Ron DeSantis has weaponized the local Florida Board of Medicine to ban gender affirming care for trans youth. Now, a representative in Florida has found a new way to target trans people not just in Florida, but nationally as well. Representative Alex Andrade has introduced a new bill, HB991, which could chill freedom of speech nationally. The bill rolls back defamation protections in many ways, but most relevant is a section that states if you accuse somebody of transphobic discrimination, they can sue you for $35,000. Furthermore, the bill prohibits the use of "constitutionally protected" beliefs as evidence to establish the truth of the allegation.
The bill is specifically targeted towards a large range of defamation protections and seeks to roll them back. One part of the bill seeks to protect people who go viral for doing something racist or transphobic - it states that a person is not a public figure for defamation purposes if their fame or notoriety stems from “a video uploaded to the internet that reaches a large audience.” The fact that they are being racist, homophobic, or transphobic in the video may not be a defense in most circumstances according to this law. It also protects people who give interviews or who are “defending themselves” against claims of racism, homophobia, or transphobia.
The worst part of the bill comes within what counts as defamation and what can be used as defenses. See here:
This section of the bill states that you cannot accuse someone of racist, sexist, homophobic, or transphobic discrimination. It states that if a person has religious beliefs or “scientific beliefs” around gender identity, they cannot be accused of transphobia. You cannot use these beliefs to build the case that your statements against them are truthful if this bill passes. Furthermore, if you accuse someone of transphobic discrimination, you are liable for $35,000 in damages in addition to attorney fees and court costs.
This could chill speech nationally. Florida’s bill, if passed, may allow for venue shopping. If a tweet or story about transphobic discrimination gets disseminated in Florida, one may be able to put forward a case there and sue someone. There is no exception for online speech and social media platforms in this bill. Fordham Law Professor Matthew Schafer points out in a tweet a warning from Justice Alito (notably, not a big ally to transgender people): “when, as is often the case, allegedly defamatory speech is disseminated nationally, a plaintiff may be able to bring suit in whichever jurisdiction seems likely to have the highest percentage of jurors who are sympathetic to the plaintiff ’s point of view."
We have seen what happens in other countries where defamation law can be weaponized against transgender people. JK Rowling infamously has targeted numerous transgender people with defamation. She has successfully threatened with legal action numerous websites that call her transphobic, causing them to retract their accusations. This bill goes beyond even UK law: you would not be able to use a person’s “religious or scientific beliefs” to establish transphobic discrimination occurred.
The outwardly national target of this bill is another important feature to note. Florida has, for all intents and purposes, gotten through some of the worst anti-trans legislation and policies within its own borders. Gender affirming care is banned for transgender youth. Don’t Say Gay or Trans is the law of the land there. An 11th Circuit decision allows schools there to discriminate against transgender youth in bathrooms. Now, legislators are turning to conduct outside of its borders. Recently, for example, Governor Ron DeSantis used state pressure of The College Board to get them to remove queer references from AP classes. Florida is not the only state to do this - just yesterday, Tennessee heard a bill that would bar TennCare contracts with any insurance company that covers gender affirming care anywhere in the United States. We are seeing the first attempts of states to attack transgender people nationally, and it is a troubling trend.
Interestingly enough, Representative Andrade has claimed to be a stalwart of free speech. He has tweeted numerous times against “suppression of free speech by big tech” and indicated his support for free speech absolutism. Just look at a few examples:
This reeks of outright hypocrisy. Rep. Andrade has filed a bill to stifle the free speech of people who accuse others of transphobic discrimination. This bill would squelch free speech on social media platforms while allowing the discrimination itself to proceed unchecked. We are left with only one conclusion to draw: Rep. Andrade only believes in free speech when you are saying what he wants you to say.
Alex Andrade is a bigot piece of trash and I will loudly proclaim that to anyone who will listen. Come at me bro.
I don't see how this can be constitutional. We do have a 1st Amendment. Even so, this is all very discouraging and disturbing. Hang in there everyone!