BISMARCK — North Dakota lawmakers are considering a bill that would bar high school and college athletes from participating in sports under any sex other than the one on their birth certificate, effectively barring transgender students from competing in most sports under their identifying gender.
House Bill 1298 would prevent publicly funded institutions, like high schools and universities, from allowing any "individual who was assigned the opposite sex at birth to participate on an athletic team" that is designed "exclusively for females or exclusively for males." Additionally, the bill would outlaw any state-owned athletic facility from hosting a competition in which an athlete competes against anyone outside of the gender they were assigned at birth.
But while LGBTQ advocates argued the bill would have far-reaching implications for transgender people in North Dakota, its lead sponsor, Rep. Ben Koppelman, R-West Fargo, said the legislation "has nothing to do with transgender athletes." Instead, Koppelman said he is pursuing changes to the law out of a concern for fairness in sports and to prevent women from being disadvantaged by having to compete against men.
"I kind of dismiss the idea that it should be about trans, because it's not about trans — it's about fair competition," Koppelman said, though he acknowledged the bill's consequences for transgender athletic competition. "What it's based on is science that says, 'Here are the physiological differences between people when they are born.' And these are irreversible things."
While transgender athletes are not explicitly noted in Koppelman's bill, critics argued that it clearly targets the transgender community. House Minority Leader Josh Boschee, D-Fargo, said he couldn't think of "any other reason that this bill would be introduced."
"I don't know the problem that's trying to be solved," he said.
A current North Dakota High School Activities Association statute, adopted in 2015, allows for transgender students taking hormonal supplements to compete in sports under their gender identity in certain cases. Under this policy, a student who has transitioned from female to male may compete in boys sports but is no longer eligible to compete in girls sports. A student who has transitioned from male to female may continue to compete in boys sports and is eligible to compete in girls sports after completing one year of testosterone suppression.
Under Koppelman's bill, neither of these scenarios would be legal. And though the language of the bill seems to leave ambiguity around women hoping to compete in a sport not narrowly designated to men, as in the recently famous instance of a women's soccer player kicking for the Vanderbilt University football team, Koppelman suggested that the intent of his bill would be to bar these kinds of situations as well.
Boschee noted that legislation restricting the competition of transgender athletes had until now never been introduced in North Dakota, even as similar bills had cropped up in conservatives states around the country in recent years. "I was hopeful that North Dakota was better than that," he said.
Libby Skarin, a regional campaign director of the American Civil Liberties Union, called the bill "an attack on transgender North Dakotans" and argued that it would force transgender athletes to choose between two options: "Either don't compete at all, or compete in a sport that doesn't match their gender identity."
The bill could become a headache for Kirsten Baesler, the Republican superintendent of the North Dakota Department of Public Instruction, who was quick to denounce anti-LGBTQ rhetoric in an official GOP policy statement this summer. In a statement, Baesler said she is aware of the proposed bill and "will be following the debate on it."
Sen. Janne Myrdal, R-Edinburg, a co-sponsor on the bill, said she doesn't view the legislation as LGBTQ-focused and added that she signed on to it out of concern for women's rights on the playing field.
"I would never want my daughter to play in sports and have a guy beat her out in track or out in javelin, where she has no chance," she said. The senator noted that she sees it as unfair to the vast majority of women athletes to allow transgender individuals to compete alongside them. "I can't fathom that transgender people won't understand that," she said.
But transgender advocates in North Dakota argued that the language of the bill, in its specificity of the gender assigned at birth, was aimed directly at the transgender community.
"This is a moot point that's being addressed because the state doesn't want to address the needs of small schools and large schools across the state," said Rebel Marie, a Fargo-Moorhead-based counselor and vice president of Tri-State Transgender. Marie said her organization has been content with existing athletics policies in North Dakota and argued that adopting the new legislation would deter teaching talent from coming to North Dakota schools.
Marie, who is transgender, also argued that the ramifications of the bill extend beyond sports alone, noting that mental health consequences for transgender individuals can stem from legislative action restricting their competition. "I know that this will cause young people to feel suicidal because it will remove them from teams they've either (aspired) to be a part of or were already a part of," she said.
Unlike a transgender athlete bill defeated in the South Dakota Legislature in 2019, Koppelman's bill also applies to collegiate athletics, a difference that Skarin said could put North Dakota out of step with national governing bodies like the National Collegiate Athletic Association.
The NCAA has long allowed for transgender athletes to compete with athletes of their identifying gender. Skarin suggested that the new legislation might jeopardize collegiate competition in North Dakota if enacted, potentially resulting in state universities having to forfeit competitions or stop hosting collegiate events.
But even as some sponsors looked to shift the focus away from transgender athletes, Myrdal acknowledged that the bill could stir up controversy.
"People will scream and holler and say, 'Oh, you denied them being in sports,'" she said. "Yeah, maybe we do. So maybe by making that choice to try to change your gender, you lose some opportunities. But you're not going to take all women and girls' opportunities away just because you wish to do that."
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