Republicans say they care about the privacy of girls and women. Their sports bans say otherwise.
Republican lawmakers in state legislatures and in the U.S. House of Representatives have introduced 44 bills that would limit transgender young people's participation in sports. Many of the legislators claim to be working to protect cisgender girls, their privacy, and their ability to compete in sports from transgender girls, whom they frequently refer to as "biological males."
When introducing these bills, legislators say they are concerned about fairness in women's sports and that transgender women have an athletic advantage that will decrease cisgender women's opportunities for success. But the vast majority of lawmakers sponsoring them have failed to find even one example of problems caused by transgender athletes competing against cisgender athletes.
What the lawmakers often fail to acknowledge about their bills is that the process of determining who is a cisgender girl and thus qualified to compete in girls sports under their legislation is murky at best and fraught with privacy problems at worst.
Some have shown that they don't even know how their own policies would work in practice.
Many of the bills were pushed by anti-LGBTQ groups and not are not homegrown legislation, experts on bills related to LGBTQ policy matters say.
The legislation is often worded vaguely enough to concern physicians, legal experts, and transgender students, who say they are worried about how people will interpret the bills and whether it's possible they could lead to school officials examining students' genitals. Some legislation has explicitly called for this.
At the federal level, Republican Rep. Greg Steube of Florida on Jan. 21 introduced H.R. 426, a bill that states that "sex shall be recognized based solely on a person's reproductive biology and genetics at birth." It does not include language on how this information would be confirmed.
A bill introduced in the Georgia House of Representatives last month would require that, in order to obtain a waiver in accordance with a regulation about who can play on which sports teams, a student submit "information regarding the student's gender based on the student's reproductive organs, genetic makeup, and other medically relevant factors" to a panel of physicians for review.
Many bills simply don't explain how the "sex" of an athlete would be determined.
In Tennessee, proposed legislation limiting transgender people's sports participation says a student's sex would have to be established by their birth certificate or, if that is not available, the student "must provide other evidence" to show their sex, and the student's parent or guardian would assume the cost of providing it.
According to a South Carolina bill introduced in the Legislature in January, public and private middle school teams would "be designated based on biological sex." During a state House Judiciary Committee Special Laws Subcommittee hearing on the legislation on Feb. 23, Democratic state Rep. Elizabeth Wetmore questioned the sponsor of the bill, Republican state Rep. Ashley Trantham, on how the bill would work. She asked who would be responsible for "verifying the anatomy" and asked if the school would be responsible for this.
Trantham said, "Actually all students in South Carolina, before participating in sports if they go to a public or private school, has to have a physical. So this wouldn't be any different than what the students are expected to do to begin with. It's not invasive ... But there is a form that a doctor fills out and they have to check whether it is a female or a male."
Dr. Elizabeth Mack, a pediatric critical care physician in South Carolina, testified against the bill at the hearing and has contested Trantham's claims.
"How would we support this? Would we require all children to undergo a detailed examination of their genitals? Order their chromosomes? These are not part of the standard pre-participation sports physical," she said.
Mack added that the American Academy of Pediatrics' pre-participation form asks for sex assigned at birth as well as gender identity.
Mack told the American Independent Foundation that the bill also fails to acknowledge the existence of intersex children and what it would mean for their ability to compete in sports. She said the bill does not seem "well thought-out."
"I can already imagine the sexual abuse allegations and all that would come with that, and violation of privacy rights," she said.
Carl Charles, a staff attorney at Lambda Legal's New York office, said many of these bills "leave much to the interpreter of the law."
"We find that people substitute their biases for those gaps," he said.
In the case of some legislation that relies on birth certificates to prove sex, Charles said officials could say, "What happens if we don't believe their birth certificates? Well, then, we'll submit this child for genetic testing and or have some doctors sign off on their anatomy."
He added that he is concerned that these kinds of laws would harm Black cisgender and transgender girls: Black girls are already disproportionately punished in schools.
"A law like this, which enables sort of surveilling people's gender, is always going to land disproportionately on the shoulders of Black girls," Charles said.
Some transgender youth say that lawmakers don't seem to understand the population they're legislating against. Eli Bundy, a transgender and nonbinary high school student in South Carolina, told the American Independent Foundation they had a virtual meeting with Trantham along with other transgender and nonbinary young people during which Trantham misgendered one of the moderators several times.
"She was like, 'Well, you know, I just don't really understand a lot about the whole transgender thing and pronouns stuff.' Why are you, like, writing this legislation? You cannot have both sides of that," they said. "You can't say, I don't know anything about transgender people and therefore I'm misgendering people, and it's fine, but also think you should be sponsoring this bill."
Published with permission of The American Independent Foundation.