By Faye Seidler
Community Uplift Program Project Coordinator
North Dakota recently introduced and subsequently amended House Bill 1298. This bill is designed to prevent transgender and intersex youth from competting in sports. The premise of this bill is that trans and intersex athletes pose an unfair advanatage over non-trans people and should be barred from competition. This discussion around fairness and inclusion for transgender and intersex athletes in sports has been something we’ve been having for decades, so what have we learned?
The North Dakota American Academy of Pediatrians shared in their testimony against HB1298 that, “In 2017, a systemic review of medical literature found, ‘There is no direct or consistent research suggesting transgender female individuals (or male individuals) have an athletic advantage at any stage of their transition (e.g. cross-sex hormones, gender-confirming surgery).’ Any disingenuous attempts to defend this law by suggesting otherwise is flatly contradicted by research”
During his introduction of this bill, Representative Ben Koppelman shared research suggesting that non-trans men have an athletic advantage over non-trans women. While this research is strongly supported, it does not apply to transgender people or take into account the hormone therapy that transgender individuals take as part of medical transition. While some studies conflict with each other for how much impact this has, medical consensus agrees that it evens the playing field. Dozens of health professionals from around North Dakota who directly treat youth and comprehend the medical and biological aspects of this discussion said there is not an unfair advantage.
When we have these discussions we start to deconstruct every aspect of anatomy, muscle mass, bone density, and so forth. The discussion keeps on being “What about this? Oh, well then, what about this?” We get so focused on these specific details we end up missing the vastly more important big picture. The Olympics determined that trans athletes could compete since 2004 and in those 17 years we have not seen one trans woman or man taking home a gold medal. The National Collegiate Athletic Association (NCAA) has allowed trans individuals to compete since 2011 and we have also not seen trans people dominating these sports. The highest level of world and college athletics has determined this policy was fair and over a decade of implementation and millions of athletes, we don’t see trans people dominating.
During testimony against this bill we heard from Rebecca Quimby, Head Women’s Soccer Coach of Concordia, who said, “I have devoted my life to women’s athletics and have spent the past decade coaching at the Division I and III levels. While I have heard the concern that some may have for transgender participation in athletics, I can assure you that there is no real threat to athletics, specifically women’s athletics. The NCAA has allowed transgender student-athletes to participate in college athletics since before I started coaching college sports without incident. Transgender student-athletes are not “stealing” scholarships, championships or opportunities from female student-athletes. I have never experienced any detriment to my program or women’s athletics due to the NCAA’s inclusive stance on transgender student-athletes. In my opinion, this bill is unnecessary and reckless. This bill would not make our athlete’s safer because there is no impending risk.”
The original version of HB1298 created a blanket exclusion that would impact sports at the K12 and College level. Testimony against this bill from Katie Fitzsimmons, NDUS Director of Student Affairs, spoke about the tremendous amount of bureaucratic and financial consequence that would occur due to this bill, “The bill, if enacted, could require NDUS colleges and universities violate federal Title VII and Title IX federal regulations and guidance, take a position that contradicts athletic conference guidelines, and add to the institutions’ administrative burden by requiring the collection of birth certificates as part of the admission process for our 45,000 students. It may also be impossible to enforce”
While the amended version has carved out colleges as part Fitzsimmon’s request, the concerns she brought up are still relevant. Cathryn Oakley, State Legislative Director and Senior Counsel Human Rights Campaign, warned against the repercussions of this bill by comparing it to very similar legislation passed in Idaho last year: “This bill will suffer the same fate as Idaho’s H.B. 500: immediate challenge in court. The preliminary injunction granted by the District Court is currently on appeal to 9th Circuit. The District Court decisively rejected the arguments by the state - which are emulated in the justifications for this bill - concluding that “the incredibly small percentage of transgender women athletes in general, coupled with the significant dispute regarding whether such athletes actually have physiological advantages over cisgender women when they undergone hormone suppression in particular, suggest the Act’s categorical exclusion of transgender women athletes has no relationship to ensuring equality and opportunities for female athletes in Idaho.””
Finally, we have had a trans inclusive sports policy backed by the North Dakota High School Activity Association since 2015. We have not had an incidence of trans individuals dominating sports in this state. We have 16 states, including D.C., that already have fully-inclusive transgender sports policies that cover 6.8 million students. Interestingly, schools with anti-trans sports policy actually find participation among all girls decreases according to data from the CDC’s yearly risk behavior survey. This legislation truly hurts everyone.
So, what are we solving here with HB1298? Medical experts disagree with it, legal experts denote its unconstitutional, sports policy experts around the world, in the United States, and in our own state disagree with HB1298. We have testimony from a person who has devoted her life to women’s sports saying this is not needed. We had students saying this is not needed. This bill purports to solve a problem that categorically, provably, and empirically does not exist outsides of the feelings and emotions of those who sponsored this bill and those who choose for some reason to ignore 90 minutes of spoken testimony and 50 submitted pieces written testimonies to vote in favor of recommending it passes. It is disappointing to say the least for policy being recommended outside of data and for so many people to spend so much of their time and share so much of themselves to be completely ignored.
What of the people in favor of this, one may ask. Should we not ignore the concerns of those who are fighting for this bill too? This is a valid question, but one must understand that the surface level intent of this bill is about fairness in sports and we have insurmountable proof from policy and medical experts that discriminating against trans people does not increase fairness in sports. This isn’t about acceptance, political correctness, or some conspiracy notion about a trans agenda, this is the data and I can’t stress this enough.
What we do find in nearly half of the testimonies in favor of this bill is the line, “Please do not allow transgenderism ideology to override established biology”. We find Concerned Women for America, which is an extreme anti-LGBTQ+ organization according to Media Bias Fact Check. We find that anti-trans bills like HB1298 have been submitted in several states across our country and largely informed from anti-lgbtq+ organizations with the intention of targeting and discriminating against queer folk.
In this context it is easy to see HB1298 serving as a political dog whistle. It isn’t about fairness in sports or the legislators proposing would have either done research into best outcomes, listened to the plethora of data during testimony, or focused on the issues women care about in sports.
Anne Lieberman, Director of Policy & Programs for Athlete Ally wrote in testimony that, “Leading national women’s organizations including The Women’s Sports Foundation and high profile female professional, Olympic, and Paralympic athletes have consistently expressed opposition to bills like HB 1298 … Female athletes and women’s organizations want lawmakers to focus on the real issues facing women and girls in sports -- like lack of resources for girls’ teams, a dearth of female leadership in sports coaching and administration, and sexual harassment and assault toward girls and women in sports -- having a transgender teammate is not among the well-documented threats facing female athletes.
This bill is about discriminating against the transgender community first and foremost. It plays on the fears, misinformation, and concerns people have and tries to garner support by talking about protecting non-trans women and children.
Kathy Anderson, president of the North Dakota American Academy of Pediatrics said during testimony against this bill that, “Policies like this are no different from policies that excluded groups or treated groups differently based on race - they are rooted in discrimination, have no scientific basis, and will ultimately negatively effect the health, development, and safety of children within our state.”
As a society we are still experiencing growing pains and as a culture we’re still learning about what it means to be transgender. There is a ton of misinformation out there and unfortunately there is also a lot of bias and hostility. There are people who will want this bill to pass simply because it hurts the trans community and the people with trans individuals in their life for whom they care about.
Dave Williams, President of Bismark’s Pflag Chapter spoke against HB1298 by saying, “My teenager began the journey to their truth around age 11, about 4 or 5 years ago. As conservative parents, we felt it was just a phase and naturally opposed the reality that our child was transgender. As time has gone on, we have come to realize that our child’s identity is not “just a phase.” And we have had to change our views, become educated by top researchers, doctors and specialty psychologists, and come to grips as parents with the knowledge that being transgender is not a choice or a lifestyle.”
He goes on to talk about his fears about his trans son participating in sports and finding out to his surprise there wasn’t an issue. That his son’s ability to play sports didn’t create any problems. Rather the team accepted him and through engagement with sports his son, “went from a reclusive outcast to being part of something and allowing our child to be who they are.”
HB1298 seeks to create a blanket ban on all transgender and intersex athletes and by extension prohibit them from enjoying the same opportunities that sports gives everyone else. Learning about and being part of a team, working hard towards a goal, and everything else people fondly remember about their time playing sports in school is just taken away from trans and intersex people. Everyone should see how unfair that is, regardless of how you feel about the trans community. HB1298 does nothing to offer alternatives, it doesn’t seek equitable outcomes, it doesn’t take into account the harm it’ll do, it doesn’t listen to the concerns of women, and it ignores our own state’s policy. Why do a handful of legislators who proposed this bill feel like they know better than everyone else? That they have a better handle on this than the Olympics, NCAA, or medical professionals?
The committee who overheard most of this testimony written about here decided to vote Do PASS on this bill after amendments were made. I started writing this article on February 9th, 2021, after I heard that a decision was made that went against the majority of testimony. I put in the effort and work to make sure people could be fully informed of these decisions before it hits the floor. I am at this time being led to believe the vote will happen in the next day or two. There is no time to digest this incredibly nuanced topic that can have severely negative repercussions. There is almost no time for any further public opinion given an amended change.
There is a good chance you’ll see this article after a vote has already happened. If it does end up passing the house, this information is still pertinent for until it makes it to the Senate or for discussion with friends and family about this topic. I sincerely hope that our North Dakota House puts due diligence and consideration towards the negative impact, potential for lawsuits, and level of state oversight this bill will have.
Please contact your legislator and tell them not to vote in favor of this bill for any reason I’ve listed here or if they already have voted, you can let them know you feelings on that as well:
June 15th 2021
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