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States

Two More States Pass Restrictions on Transgender Students. Will Others Follow?

By Evie Blad — March 26, 2021 4 min read
Advocates for transgender people march from the South Dakota governor's mansion to the Capitol in Pierre, S.D., on March 11, 2021, to protest a proposed ban on transgender girls and women from female sports leagues.

Momentum continues in state legislatures around the country considering dozens of bills that would restrict the rights of transgender students, making the issue one of the dominant trends in spring sessions.

States are weighing measures that would do everything from restricting the names and pronouns teachers use to refer to transgender students to banning health care targeted at the needs of transgender children.

Most commonly, 28 states have considered or passed bills that would prohibit transgender girls from playing on girls sports teams, according to a tracker maintained by the ACLU.

The latest actions:

  • Arkansas Gov. Asa Hutchinson, a Republican, on Thursday became the second state leader to sign a bill into law with restrictions in the area of athletics, following Mississippi Gov. Tate Reeves, who signed a similar measure earlier this month. They join Idaho, which passed the first state-level restrictions on transgender athletes last year, a measure that was later blocked by a federal court.
  • Tennessee Gov. Bill Lee, a Republican, has signaled plans to sign a bill passed by his state’s legislature that would require students to prove their sex at birth to play interscholastic sports.
  • Several other states, including North Carolina and Alabama, are actively considering bills.

The sponsors of those measures say transgender girls may have an unfair competitive advantage.

Transgender rights groups and medical organizations, like state chapters of the American Academy of Pediatrics, have argued that’s not the case. Enactment of such measures could put states at odds with federal civil rights laws, leading to costly legal battles and logistical concerns for schools, they’ve argued.

Transgender rights organizations hope some of those concerns will give governors pause as bills make their way to their desks.

That was the case for South Dakota Gov. Kristi Noem, a Republican, who used a “style-and-form” veto to return a “Fairness in Women’s Sports” bill to the state legislature for further consideration. The measure’s “vague and overly broad language could have significant unintended consequences,” Noem said, drawing criticism from national conservatives.

Among her concerns: requirements to test students for steroids, liability concerns for individual schools, and ramifications for college teams participating in the NCAA.

“This backtrack, by even an extreme governor with national political aspirations, exposes the economic, legal, and reputational threats these bills pose to states considering anti-transgender legislation,” said a statement from the Human Rights Campaign, an LGBTQ rights organization.

Other states have forged ahead.

“I signed the law as a fan of women’s sports from basketball to soccer and including many others in which women compete successfully,” Arkansas Gov. Hutchinson said in a statement. “This law simply says that female athletes should not have to compete in a sport against a student of the male sex when the sport is designed for women’s competition.”

His actions drew swift rebuke from advocacy groups, including the Human Rights Campaign, which planned to run an ad in opposition to the measure during the University of Arkansas March 27 Sweet 16 basketball game. The group says the bills are “in search of a problem that does not exist.”

The restrictive bills represent a growing legislative trend

Many of the state bills have similar or identical language, and they’ve won support from national groups like the Alliance Defending Freedom, a conservative organization that has represented students and schools in lawsuits against transgender-inclusive policies.

Such policies infringe on the privacy rights of cisgender girls, they have said.

Children’s health organizations have said acknowledging and respecting children’s gender identity can be important for their health and development.

And LGBTQ advocacy groups say states like California, which already have inclusive sports policies, haven’t seen issues with unfair competitive advantage for transgender girls.

An analysis by the Associated Press found most state lawmakers considering new restrictions for transgender students couldn’t “cite a single instance in their own state or region where such participation has caused problems.”

But, around the country, a handful of female athletes have complained. They include high school track athletes who are plaintiffs in a federal lawsuit over Connecticut’s inclusive policy.

While the rights of transgender people have emerged as a new political front, similar to past battles over same-sex marriage and other social issues, new state laws may not be the final word.

Education law experts point to a growing body of court decisions that suggest existing federal civil rights laws may protect the rights of transgender students.

In an inauguration day executive order, President Joe Biden cited the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, Ga., which held that a prohibition of sex discrimination in Title VII, the federal employment law, prohibits unequal treatment on the basis of sexual orientation or gender identity.

Biden directed federal agencies to apply a similar interpretation to other federal laws prohibiting sex discrimination, including Title IX, which covers education and school athletics.

In February, the U.S. House of Representatives passed the Equality Act, a bill that would explicitly codify protections related to sexual orientation and gender identity into federal civil rights laws.

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