Law marks turning point for LGBTQ rights in Wyoming. How did we get here?

As a wave of legislation restricting transgender rights swept through statehouses across the country this year, Wyoming broke with what some say is a decades-long tradition of blocking anti-LGBTQ bills. 

Activists deployed a strategy, they say, that worked for decades: aligning LGBTQ rights with the core Republican principle that government should sparingly intervene in citizens’ private decisions.   

In 1977 state lawmakers defined marriage as a civil contract between a male and a female, a blow to LGBTQ rights. But since then, “every single bill that would limit the civil rights of LGBTQ people in Wyoming has been defeated,” said Sara Burlingame, a former legislator and executive director of Wyoming Equality, an advocacy group. “This was the year that changed,” she said. 

Burlingame was referencing a new law that will prohibit transgender girls from competing in middle- and high-school girls sports events. Asserting it is about fairness and not restriction, lawmakers voted overwhelmingly for Senate File 133 – Student eligibility in interscholastic sports during the 2023 general session. And while Gov. Mark Gordon called it “overly draconian,” he let the bill become law without his signature. It is set to go into effect in July.

“It is difficult for me to sign legislation into law that knowingly will cost the state and taxpayers money to litigate and may be challenged under Title IX and the Equal Protection Clause,” Gordon wrote in his letter to lawmakers. Wyoming Equality is in fact planning a legal challenge, and the U.S. Department of Education announced earlier this month a proposed change to Title IX that would make it illegal for schools to “categorically ban transgender students from participating on sports teams consistent with their gender identity just because of who they are.”

If a court challenge pauses Wyoming’s ban, the legislation would then require the governor to appoint a five-member commission to determine the eligibility of a student in interscholastic sports. 

There were also victories for LGBTQ advocates in the 2023 session, including the defeat of two bills to limit gender-affirming care for minors and one that closely mirrored Florida’s restrictions on what can be discussed in public schools. But advocates like Burlingame expect those bills to return to the statehouse, and there’s concern that the sports ban’s passage marks a turning point for LGBTQ rights in Wyoming and the strategy used to protect them. 

Background

The same year the Legislature defined marriage between a male and a female, lawmakers also repealed Wyoming’s anti-sodomy law.

“All of that happens in 1977,” Burlingame said. “So it’s this really banner year where the Wyoming Legislature … looks at gay rights and opens the door in one direction and sets a boundary in another direction.” 

In 1982, Wyoming dropped common law crimes from its statutes, which legalized all sexual activity between consenting adults. But an impasse largely characterized the decades that followed, in which both protections for and restrictions of LGBTQ rights failed to get adequate support to become law. 

For same-sex marriage, it was the courts, not the Legislature, that ultimately budged the needle. A federal district court ruling in 2014 made same-sex marriage legal in Wyoming the year before the United States Supreme Court made it constitutionally guaranteed nationwide. 

After the high court settled the law, another stalemate came back into focus — a hate-crime law. Since the murder of Matthew Shepard in 1999, hate-crime legislation has failed repeatedly to get enough votes from lawmakers. Most recently, the Joint Judiciary Committee voted down legislation in 2021 that would have updated statutory language to create a de facto hate crime law. However, whether Wyoming already has bias-motivated statutes on the books depends on who you ask, with the American Civil Liberties Union of Wyoming and the U.S. Justice Department holding different views on a little-known state law, according to the Casper Star-Tribune. 

In 2017, lawmakers introduced legislation to criminalize people using public restrooms that do not correspond with the gender assigned to them at birth. The bill was dead on arrival, failing to meet an initial deadline, but was the first legislation of its kind in Wyoming. At the time, former Republican Gov. Matt Mead said bills dealing with public restrooms would undermine the state’s nickname of “the Equality State.” A task force convened by Mead to devise a plan to diversify the state’s economy identified a statewide non-discrimination law as a key recommendation in its 2018 report. 

“Recruiting, hiring, and retaining high-quality talent is essential to growing successful businesses in a global economy,” according the report. “It is important that Wyoming residents and visitors are treated with equality.”

While the state has yet to take such action, several local governments have addressed the issue, adopting non-discrimination ordinances. 

Changing tides 

The Legislature has steadily moved farther to the right in recent years. In 2022, Republicans picked up four seats previously held by other parties. But that swelling conservative supermajority hasn’t necessarily brought a deeper commitment to a small-government mindset that has helped LGBTQ advocates in the past, Burlingame said. With the rise of the Wyoming Freedom Caucus, which has grown its membership and its position in the statehouse, Burlingame said the body’s adherence to core Republican principles like limited government, equality and liberty has waned, making way for bills that previously wouldn’t have passed. 

“We want people to truly recognize the full dignity and worth of LGBTQ Wyomingites,” Burlingame said. “But in the past, we’ve won not because people have strong feelings for the LGBTQ [community] but [because] they had strong feelings about the role of government.”

That’s become a less reliable strategy; Republican lawmakers butted heads over the proper scope of government during the 2023 session with several Freedom Caucus members arguing for a top-down approach in some cases. 

“Local government is merely political subdivisions of this state,” Freedom Caucus member Rep. Rachel Rodriguez-Williams (R-Cody) said on the House floor in response to colleagues’ criticisms that one of her bills eroded local control in favor of state power.  

Several other factors facilitated the sports ban’s passage, Rep. Dan Zwonitzer (R-Cheyenne) said. 

“I just think it was an emerging issue in the constituency and it dealt with kids,” he said, which differentiates it in his view from an adult issue. Zwonitzer is now the only openly gay member of the Wyoming Legislature, because Cathy Connolly — the first openly gay legislator in state history — did not seek re-election after 13 years in the House, and Burlingame and Chad Banks of Rock Springs lost their respective races in 2022.  

Connolly was candid during her keynote address at The Democracy Lab Symposium hosted at the Albany County Public Library on Saturday. She told attendees that when Rep. Wendy Schuler (R-Evanston) first brought legislation to limit trans girls’ participation in school sports, in 2022, the two had agreed the “bill was a sledgehammer that codified discrimination to appease an angry mob.”

“I have the greatest respect for [Connolly], but I don’t remember saying that at all,” Schuler told WyoFile. Schuler also rejected the idea put forth by Connolly that the bill was about scoring “Republican street cred” to counter some of her more moderate views. Schuler is not part of the Freedom Caucus, and was challenged by one of its former members, Bob Wharff, in the 2022 election. 

“I don’t go digging around to see what’s happening at the national level that might interest me,” Schuler said, adding that she relies on what she hears from constituents to draft legislation. 

As to whether the ban is at odds with Wyoming’s proclivity for small government, Schuler said “there’s some truth to that,” adding that government intervention should be decided on a case-by-case basis. 

“Sometimes, we as Republicans, we really don’t want the government in our business,” she said. “But then if we think we’ve got to right a wrong, then we do want them in our business.”

An analysis by The Washington Post found that more bills targeting LGBTQ rights — particularly transgender rights — have been introduced and become law in 2023 than at any other time in U.S. history. Disruptive opposition to that surge in other states has led to arrests and the barring of one transgender lawmaker from her own chamber.   

Zwonitzer said he believes Wyoming’s sports ban is a more “reasonable approach, especially compared to a lot of other states [that] have gone a bit overboard when it comes to these issues.” Zwonitzer, who was one of six Republicans to break with party lines and vote against the ban, pointed to an amendment to exclude training or practicing with a team from the ban as a reasonable piece of it. Zwonitzer also puts stock in the intentions of the bill’s main sponsor, Schuler. 

“I don’t think it was brought as a bill to attack the LGBT community, like a lot of the other bills in the past,” Zwonitzer said. “This is truly about fairness in women’s sports. So I think that’s why it passed.”

Strategy

A longtime athlete and coach, Schuler got her start in sports in the early days of Title IX. Enacted in 1972, the federal civil rights law prohibits sex discrimination at education institutions that receive federal funding in primary, secondary and higher education — effectively ensuring that everyone would have the same opportunities in school sports, regardless of their sex. 

“I’ve been an advocate for girls and their sports opportunities ever since, because I was on the other end and saw how unfortunate it was that so many of us had to sit on the sidelines,” Schuler said. She first brought a bill to sideline transgender athletes in the 2022 budget session after she’d been approached by some constituents. 

“Their kids had gone over and competed in Utah, and they’d [encountered] a couple of transgender athletes over there who just overwhelmed these gals,” Schuler said. She went back to the drawing board after the 2022 version of the bill died. Those efforts included working with Burlingame, who Schuler said has been a friend since they both started in the Legislature in 2019. 

“I visited with her, talked with other people. Of course, she wanted me to just take away the ban completely, and I just said, ‘No, I can’t do that,’” Schuler said. 

Instead, Schuler removed collegiate athletics from the bill and added language to create the commission, which largely resembles the one in Utah. Utah’s commission was activated last year after a judge reversed the state’s ban on the basis that it violated equal rights and due process under the state’s constitution. And similar to Utah’s commission, Wyoming’s law prescribes that the committee consist of certain persons — including a mental health professional and a parent of a current student — and that the committee’s work not be subject to public records law. 

“She obviously thinks I’m very wrongheaded in my support for all transgender athletes, and I believe that her bill has potentially fatal consequences for children,” Burlingame said. One social worker told lawmakers during the 2023 session that Wyoming families with transgender children were in crisis on account of the bill, with most of those children being on suicide watch. 

With such high stakes, Burlingame said some of her organization’s national partners have at times encouraged her to take a less compromising approach and to break relationships with lawmakers who don’t fully support LGBTQ rights. 

“And we have to say, that doesn’t work and we don’t believe it,” Burlingame said. Still, Burlingame said she wants people to understand that the next chapter will require effort and it’s not just LGBTQ rights on the line.

“Government doesn’t exist to limit anyone’s civil rights and the Freedom Caucus is just destroying that concept,” Burlingame said. “Like they’re just taking an ax to it, and it will change the whole character of Wyoming.”

People, she continued, “will have to do something that costs them something, they’ll have to do something that puts them in a place of moral courage.”

WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.