State lawmakers racing to pass legislation to stop transgender participation in female sports risk being lapped by the Equality Act as it sprints to the Senate with a boost from the Biden administration.
At least 25 states have introduced legislation to prevent transgender athletes from competing in girls’ and women’s sports. Five of those bills have cleared one chamber, and the Tennessee legislation is expected to reach the state House and Senate next week for floor votes.
Those state bills would be left in the dust, legally speaking, if the Senate passes and President Biden signs the Equality Act, which would bar discrimination based on sex, sexual orientation and gender identity, requiring schools that receive federal funds to allow transgender athletes in girls’ and women’s sports.
“If the Equality Act passes and courts judge these state bills to be inconsistent with federal law, the state bills will be void,” said Emilie Kao, director of the Heritage Foundation’s DeVos Center for Religion and Civil Society.
For advocates on both sides of the issue, that means running a dual-track race on an issue now hitting its stride in Congress and state legislatures.
The Equality Act’s passage last week in the House was “an initial blow,” said Beth Stelzer, an amateur powerlifter and president of Save Women’s Sports, but she said the state bills are helping her cause by bringing the issue to the forefront.
“We have such a lack of knowledge about it. People just don’t understand the threat that this is,” said Ms. Stelzer, who has testified in favor of multiple state bills. “By hopefully getting some of these state laws through, we can awaken people to what’s happening to women.”
Four Republican-controlled state legislatures — in Mississippi, Montana, North Dakota and South Dakota — have passed bills with titles such as the Save Women’s Sports Act in one chamber, all by double-digit votes.
All four states also have Republican governors, although it was Utah’s Republican governor who helped sink the state bill. A Senate committee killed the measure — it passed the House by a vote of 50-23 — after Gov. Spencer Cox indicated he would not sign it.
“If you have not spent time with transgender youth, then I would encourage you to pause on this issue,” Mr. Cox said in an emotional Feb. 18 statement. “These kids, they’re just trying to stay alive.”
The only state to have enacted a bill barring transgender male-to-female athletes from participating in girls’ and women’s sports is Idaho, which did so last year. The state’s Fairness in Women’s Sports Act was promptly blocked in court pending a legal challenge.
The sponsor, Republican state Rep. Barbara Ehardt, a former Division I basketball player and coach, has advocated this year for bills in other states.
“In pursuing this dream, I know firsthand of the things of which I speak. There is an absolute difference between men and women,” Ms. Ehardt said in testimony before the Montana House Judiciary Committee.
She predicted that college women’s teams would be coerced to recruit biological men to stay competitive if one team in their conference has a transgender player.
“If you don’t pass legislation such as this, it will come to a day when there will be no room, no place for girls and women to compete,” Ms. Ehardt said.
At a Feb. 24 hearing in the Tennessee Senate Education Committee, Democratic state Sen. Raumesh Akbari asked the bill’s sponsor, Republican state Sen. Joey Hensley, whether any transgender athletes had sought to compete against girls or women in the state. He said no, but that it was “only a matter of time.”
The committee approved the measure 8-1, with Ms. Akbari as the only dissenting vote.
“I feel like this is legislation that is seeking a problem,” said Ms. Akbari. “To me, this is codifying hatred against a certain group of people and addressing a problem that does not yet exist.”
Opponents also warn that the measures could trigger economic boycotts such as the one waged against North Carolina after it approved a “bathroom bill” in 2016. The state legislature rescinded the measure a year later after the Republican governor was ousted.
Before Utah legislators killed the bill, the American Civil Liberties Union predicted that “H.B. 302 will become Utah’s ‘bathroom bill’ and cause major sports events, associations and sponsors to boycott the state faster than you can say ‘North Carolina.’”
The difference is that multiple states are advancing the women’s sports bills, making it tougher to single out one state for a boycott, said Jon Schweppe, director of policy and government affairs for the American Principles Project.
“We are up to something like 25 states with legislation introduced at this point,” Mr. Schweppe said in an email. “Way easier to step out on a ledge if you see other states doing it safely.”
He noted that passage of the Equality Act is not certain. Only three House Republicans voted for the bill this year, down from eight in 2019. Sen. Susan M. Collins, Maine Republican, pulled her name as a co-sponsor after saying the bill’s authors failed to take into account her concerns.
Democrats would need 60 votes to shut down a filibuster in the 50-50 Senate to pass the Equality Act. Even if the measure passes and Mr. Biden signs it, the provision declaring the law exempt from the Religious Freedom Restoration Act sets up a likely legal challenge.
“Strategically, we think it makes a lot of sense for states to continue to pass these bills,” Mr. Schweppe said. “States are the laboratories of democracy. The more states we have prioritizing these issues in their legislatures, the more pressure we’ll be able to put on Congress to prevent something like the Equality Act from becoming law federally.”
In addition, he said, “states need these laws to help provide a bulwark against actions from the Biden administration that might try to impose provisions of the Equality Act via executive fiat.”
Ms. Stelzer has two more hearings on her schedule. She is slated to testify Wednesday on the South Dakota bill and next week on a bill in Arkansas.
A fight is already brewing in Arkansas over the Gender Integrity Reinforcement Legislation for Sports, or GIRLS, Act, sponsored by Arkansas Attorney General Leslie Rutledge.
She said Mr. Biden’s Jan. 20 order prohibiting gender identity discrimination “signaled that it intends to require schools to allow biological boys who self-identify as girls onto girls’ sports teams.”
“This proposed legislation would make sure that young women in Arkansas can compete on a level playing field — no matter what sport they choose,” Ms. Rutledge said in a Feb. 22 press release.
Catie Hartling, president of PFLAG of Northwest Arkansas, countered that the bill promoted discrimination.
“It’s saying that trans women and trans girls aren’t girls or women, and that’s untrue,” Ms. Hartling told NewsChannel8. “All Arkansans who are women, including cisgender and transwomen and intersex folks who identify as women, they’re all women and they deserve to be protected.”
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