Legislation that would restrict transgender girls in K-12 sports is set to land on the desk of Gov. Doug Burgum, who hasn't indicated whether he'll sign it into law.
North Dakota's Senate on Thursday passed House Bill 1298, brought by Rep. Ben Koppelman, R-West Fargo, on a 27-20 vote. The House on Wednesday had passed the bill 69-25.
The bill would prohibit public elementary and secondary schools from "knowingly" allowing a student to participate on a school-sponsored athletic team exclusively for their opposite sex. The bill does allow girls to play on boys sports teams.
The bill also includes an optional 2021-22 interim study of the impact of the bill on student athletic events. Any findings and recommendations would go to the 2023 Legislature.
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Supporters say the bill ensures fairness in girls sports. Opponents say it discriminates against transgender youth and risks inviting litigation and repelling sports tourism.
The bill is not as broad as the more sweeping version the House first passed, which extended to publicly funded entities, facilities and events. Opponents said that version would have affected colleges and club sports.
Sen. Mike Dwyer, R-Bismarck, called the bill a difficult issue.
"On the one side, you have girls and their parents who want to compete in competitive sports against other girls. They believe a transgender girl who was identified as a boy at birth has an advantage, no matter what kind of hormone therapy they received. They would like us to pass this bill," Dwyer said. "On the other side, you have transgender girls and their parents who would like to have their child compete on girls teams as they now identify, and as such they would like us to vote against this bill."
Dwyer voted in favor of the bill.
Sen. Dick Dever, R-Bismarck, spoke of a 36-year-old transgender man whom he first met as a 4-year-old girl, and described the man's behavioral health struggles over the years. Dever said his acquaintance recently thanked him "for always treating me with kindness."
"I don't know the purpose of this bill, but when I was first elected I told myself that on matters of conscience, I will vote my conscience, and that's what I'm about to do," said Dever, who voted against the bill.
Sen. Erin Oban, D-Bismarck, spoke of "the process of finding comfort in myself" growing up and how different the experience is for others.
"As huge of an honor as it is to sit in this seat in this chamber, I don't care one bit if I am ever elected again if it means that I have to discriminate against specific children in law, because that's what this bill does," said Oban, who voted against the legislation. "I understand that in some people's minds this is about something else, but that's what it will do in law."
Sen. Janne Myrdal, R-Edinburg, said the bill is all about preserving Title IX, a 1972 federal law that protects people from sex-based discrimination in school programs and activities that receive federal money.
"Nobody's banning anything here. Nobody's taking any person's rights away. We're actually protecting rights," she said. She voted yes on the bill.
Sen. David Clemens, R-West Fargo, said "God's love does not condone disobedience to His word."
"We are all born male or female, and that's a creation of God that we live in, and so for us to begin to even consider things like this, to me, is beyond comprehension," said Clemens, who favored the bill. "What we are becoming is God ourselves, and now we are going to create who we feel is male and female."
Burgum, a second-term Republican governor, has three legislative days to act on the bill upon receiving it.
Should he veto the bill, the House and Senate would need two-thirds majority votes to override the veto. The House passed the bill with a veto-proof majority; the Senate did not.
Burgum declined to comment on the bill to the Tribune before the Senate's floor session, saying the bill had yet to reach his desk.
The American Civil Liberties Union of North Dakota said the bill "attempts to solve a problem that does not exist while slamming the door shut for transgender student athletes to fully participate in their school communities," and makes the state prone to costly litigation.
The North Dakota High School Activities Association told the Tribune it opposes the bill. The association has a transgender student board regulation that states:
- Any transgender student who is not taking hormone treatment related to gender transition may participate in a sex-separated interscholastic contest in accordance with the sex assigned to him or her at birth.
- A trans male (female to male) student who has undergone treatment with testosterone for gender transition may compete in a contest for boys but is no longer eligible to compete in a contest for girls.
- A trans female (male to female) student being treated with testosterone suppression medication for gender transition may continue to compete in a contest for boys but may not compete in a contest for girls until completing one calendar year of documented testosterone-suppression treatment.
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