Arkansas, Mississippi, and Tennessee Enact Laws to Ban Transgender Athletes From Women’s Sports

What’s the story?

• Lawmakers in Arkansas, Mississippi, and Tennessee enacted legislation in March to ban transgender athletes from competing in women’s sports. The new laws set up potential showdowns with courts over their constitutionality and with the National Collegiate Athletic Association (NCAA), which allows transgender athletes to compete in women’s sports.
• A similar law was adopted in Idaho last year before it was temporarily blocked by courts as the case plays out, while the South Dakota legislature also passed a related bill this year that Gov. Kristi Noem (R-SD) declined to sign, citing issues with the legislative text.

What are the arguments over the bills?

• Advocates for laws prohibiting transgender athletes from competing in women’s sports note that biological men have higher levels of testosterone, which aids muscle development and gives men and boys the advantage of “categorically different strength, speed, and endurance” over elite women, according to the Duke Law Center for Sports Law and Policy. 
• They add that the benefits of natural testosterone aren’t diminished by the use of puberty blockers and cross-sex hormones, as a 2019 study in the Journal of Clinical Endocrinology & Metabolism found that even after 12 months of receiving cross-sex hormones a man who identifies as a woman still “had an absolute advantage” over female athletes and “will still likely have performance benefits” over women. 
• Further, proponents of such laws contend that female athletes who are outperformed by transgender athletes in women’s sports would lose opportunities for publicity and exposure that could garner athletic scholarships, thus setting back the Title IX goals of advancing women’s athletics.
• Critics of the laws prohibiting transgender athletes from competing in women’s sports argue that they’re discriminatory. The American Civil Liberties Union (ACLU) stated that these laws “discriminate against trans youth in ways that compromise their health, social and emotional development, and safety, they also raise a host of privacy concerns.” 
• The Human Rights Campaign (HRC) has argued that these laws are a solution in search of a problem given the relatively small number of transgender athletes competing in high school and collegiate athletics. The Associated Press called a number of lawmakers who support the laws but were unable to cite local examples of transgender athletes competing in women’s sports, instead, they say it's a pre-emptive effort in response to President Joe Biden’s executive order barring discrimination based on gender identity in school sports.
• Other opponents of the effort note that states which ban transgender athletes from competing in women’s sports may face backlash from the NCAA, which has in the past relocated its events from states with controversial policies it disagrees with. The NCAA allows male-to-female trans athletes to compete on a “mixed” team until they’ve completed one year of testosterone suppression treatment, at which point they can compete on a women’s team, or they can continue to compete on a men’s team.

What do the laws do?

ARKANSAS

• Gov. Asa Hutchinson (R-AR) on March 25th signed the Fairness in Women’s Sports Act into law, which passed the state legislature on mostly party-line votes of 28-7 in the Senate and 75-18 (seven not voting) in the House.
• The bill applies to public elementary and secondary schools (including open-enrollment public charters) and public two-year or four-year institutions of higher education. It requires athletic teams sponsored by such schools to be expressly designated as “male”, “men’s”, or “boys”; “female”, “women’s”, or “girls”; or “coed” or “mixed”.
• Students who are deprived of an athletic opportunity or suffer direct or indirect harm stemming from violations of this bill or retaliated against for reporting a violation are able to file a civil lawsuit against the offending school.
• State government entities, licensing or accrediting organizations, and athletic associations would be prohibited from accepting or investigating a gender bias complaint against a school that maintains separate teams for female athletes.

MISSISSIPPI

• Gov. Tate Reeves (R-MS) on March 11th signed the Mississippi Fairness Act into law, which passed the state Senate on a party-line vote of 34-9 (with four present, five not voting) and the state House on a mostly party-line vote of 81-28 (with seven present, six not voting).
• Effective July 1, 2021, the bill requires primary and secondary schools along with public higher education institutions (including NCAA, NAIA, or NJCCA programs) to designate athletic teams as being for “males,” “men” or “boys”; “females,” “women” or “girls”; or “coed” or “mixed”.
• It prohibits governmental entities, licensing or accrediting organizations, and athletic associations from investigating or taking adverse actions against educational institutions that maintain separate athletic teams for women.
• Student-athletes who are deprived of athletic opportunities or experience harm from violations of this bill have the right to file civil lawsuits.

TENNESSEE

• Gov. Bill Lee (R-TN) on March 26th signed S.B. 228 into law, which passed the state Senate on a party-line vote of 27-6 and the state House on a mostly party-line vote of 71-16 (with five present or not voting).
• The bill requires student-athletes participating in public middle or high school interscholastic athletics to compete on teams of the sex that an athlete was determined to be at the time of their birth. If a student-athlete’s sex at the time of birth isn’t indicated on their birth certificate they must provide other evidence of their sex at the time of birth.
• The state board of education, local boards of education, and public charter schools' governing bodies are required to adopt and enforce policies to ensure compliance with this bill.  
• It took effect immediately upon enactment and will apply to the 2021-22 school year and thereafter. The bill does not apply to kindergarten through fourth grade athletics.  

— Eric Revell

(Photo Credit: iStock.com / skynesher)