A reader sent me a link to House Bill 114, the “Ban the Trans Athletes” bill. I knew the gist of it, but had not actually looked at the bill language. When I did, I was struck by this particular section:
The sex of a student for the purpose of determining eligibility to participate in an athletic activity or sport or to use an athletic facility designated for the exclusive use of a single sex shall be determined by:
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- A student’s biological sex as indicated on the student’s original, unedited birth certificate issued at the time of birth; or
- If the biological sex on a student’s official birth certificate has been edited since originally issued or the biological sex of the student is subject to an official challenge, a medical examination performed and signed by a physician, physician assistant, or advanced practice registered nurse, if performed within the professional’s scope of practice, establishing a student’s sex based solely upon:
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- The student’s internal and external reproductive anatomy;
- The student’s normal endogenously produced levels of testosterone; and
- An analysis of the student’s genetic makeup.
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“Endogenously produced levels of testosterone”? That’s not a phrase that you would expect to hear in the halls of Kentucky’s state capitol … nor to read in a bill. So, I fired up the Google machine to see if it might have come from somewhere else.
Lo and behold, we’re not the only state with “testosterone on the brain” in our legislature. (I hear those comments.) Not only are there a number of states with “Ban the Trans” bills, some of them have the exact same language.
Arizona (bill)
The Arizona bill isjust about athletic teams, like the Kentucky bill, and has this section that includes that “testosterone” language:
A. An interscholastic or intramural athletic team or sport that is sponsored by an educational institution in this state must be expressly designated as one of the following based on biological sex:
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- Males, men or boys.
- Females, women or girls.
- Coed or mixed sex.
B. Athletic teams or sports designated for females, women or girls may not be open to students of the male sex.
C. If disputed, a student may establish the student’s sex by presenting a signed physician’s statement that indicates the student’s sex based only on all of the following factors:
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- The student’s internal and external reproductive anatomy.
- The student’s normal endogenously produced levels of testosterone.
- An analysis of the student’s genetic makeup.
Mississippi (bill)
Their bill goes into a long dissertation as to why they need this bill. It includes all sorts of anti-trans laws, including the “I can sue if I see one” clause — but the “Athletic Teams” section contains the same language:
Athletic teams or sports designated for “females,” “women,” or “girls” shall not be open to students of the male sex. If disputed, a student may establish his or her sex by presenting a signed physician’s statement which shall indicate the student’s sex based solely upon (a) the student’s internal and external reproductive anatomy, (b) the student’s normal endogenously produced levels of testosterone, and (c) an analysis of the student’s genetic makeup.
New Hampshire (bill)
The New Hampshire bill also has the same language, except for two small changes. See if you can catch them.
Interscholastic or intramural athletic teams or sports that are sponsored by a primary or secondary school or institution of higher education and designated for “females,” “women,” or “girls” shall only be open to students of the female sex. If disputed, a student may prove that she is of the female sex by presenting a signed physician’s statement which shall indicate the student’s sex is based solely upon:
- The student’s internal and external reproductive anatomy;
- The student’s naturally occurring level of testosterone; and
- An analysis of the student’s chromosomes.
Apparently, those New Hampshire bill writers weren’t too sure their leges would understand “endogenously” and “genetic makeup,” so they swapped out those words.
The other bills
I decided to widen my search a bit, to see what other “Ban the Trans Athletes” bills were out there. Here’s what I found – and some of them are even worse than the ones already listed.
Tennessee (bill)
The Tennessee bill doesn’t have the testosterone language, but check this out: Public schools must ensure that athletes participate according to the sex on their original birth certificate. If the school fails to do so, they lose ALL their funding (state and local).
AND – If a school official is guilty of helping or sanctioning such breaking of the rule, they shall be charged in a civil case with a possible fine of $10,000 — and, they cannot work as a school administrator or principal for 5 years.
Got to love the wonderfully incorrect closing of the bill: “This act shall take effect upon becoming a law, the public welfare requiring it.”
Missouri (bill)
Missouri’s bill is the standard “shall be eligible to participate in athletic contests organized for persons of the same biological sex included on the student’s birth certificate.” BUT, they are going for putting this on the ballot to make it an amendment to their state constitution!
Washington (bill)
This one is pretty standard: “must prohibit male students from competing with and against female students in athletic activities with separate classifications for male and female students if the athletic activity is: (a) Intended for female students; and (b) An individual competition sport. For the purposes of this section, “male students” means 2 students whose sex assigned at birth was male.”
Georgia (bill)
Georgia’s bill is also pretty standard: “public and governmental facilities shall not be utilized for athletic competitions in which a person who is not a biological male is allowed to participate in athletic events conducted exclusively for males or a person who is not a biological female is allowed to participate in athletic events conducted exclusively for females.”
Indiana (bill)
Indiana’s bill was also fairly standard as “Ban the Trans Athlete” bills go, but it had one exception that I didn’t see anywhere else.
(a) Except as provided in subsection (b), in the case of an interscholastic athletic event conducted, organized, sanctioned, or sponsored by the association, a person born as a male may not participate in or compete: (1) against an athletic team composed of persons born as females; or (2) in an individual sport against a person born as a female.
(b) Subsection (a) does not apply to a person who is born with a disorder of sexual development (DSD) who provides written documentation from a doctor evidencing that the person had a disorder of sexual development at the time of birth.
Closing thoughts
It seems obvious that there was a concerted push across the country to introduce these bills in 2020. Almost all of them were introduced within a few weeks, or even a few days, of each other. And the common language in some of the bills? It’s most likely because they came from a common playbook. (Which we are going to write about soon, so stay tuned.)
Why this sudden interest in trans athletes? Is it because of a surge of trans athletes winning gold medals at the Olympics, or tilting the playing field in state championship games? No. It’s part of a larger agenda to gradually shift the Overton Window back from where it has gone with regards to LGBTQ rights.
Fortunately, it appears that some of these bills are not going to pass, or even get hearings. Perhaps leges have taken note of what happened to North Carolina when they passed their “bathroom bill.” Or, perhaps more and more leges have actually met some LGBTQ constituents – or family members.
Let’s hope that eventually our legislative leaders and members will realize that bashing LGBTQ folks may win you votes with some people, but in the end, it’s a losing proposition.
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