Del. “Fairness In Women’s Sports Act” opened to public comment

DELAWARE – A bill that would require students to compete in sports associated with their biological sex, rather than gender identity, was opened up for public comment Wednesday morning. The bill also makes an exception for female athletes to compete in male sports, if the sport is not open to females.

It’s called the Fairness in Women’s Sports Act, and was heard in the Senate Health & Social Services Committee. Lawmakers and community members spent just over two hours weighing whether or not the bill would protect female athletes from unfair competition, or if it is discriminatory, and potentially harmful, to transgender athletes.

Opening Remarks

The bill’s sponsor, State Senator Bryant Richardson, opened his presentation by emphasizing that he does not believe this bill harms transgender athletes. Instead, Sen. Richardson argued that the bill was really about ensuring girls competing in sports are getting a fair, and safe shot at athletic success. “The inclusion of male bodied athletes in female sports harms female athletes by decreasing the chances of female athletic success, taking away roster spots, playing time and potential scholarships from female athletes,” he said.

Sen. Richardson said that if female athletes are deprived of those opportunities as a result of a transgender athlete competing in their sport, there would be a cause of action for injunctive relief against the respective school district. “The inclusion of male bodied athletes in women sports inevitably means that more females lose out. We have an obligation to defend everyone’s rights. What’s wrong is when the rights of some, put at risk, the rights of others,” he said.

Bill Support

The Senator introduced his two witnesses testifying in support of the bill as Dr. Michelle Parsons, who works with patients experiencing hormone irregularities in Rehoboth Beach, and Wilmington lawyer Thomas Neuberger.

Dr. Parsons spoke on her experiences with the varying levels of hormones between her male and female patients. “Testosterone level in isolation does not distinguish a male athlete from a female athlete. A low testosterone level does not even out the playing field for men to compete with women,” she said. “Even when men are placed on testosterone blocking agents and they lose a percentage of muscle mass and endurance overall as expected, they still far surpass genetic muscle mass size, endurance and oxygen capacity.”

Neuberger followed Dr. Parsons. In his testimony, Neuberger expounded upon the importance of protecting female athletes under the umbrella of Title IX. “In the name of inclusion, females are being asked to step aside to make room for these athletes. This isn’t fair, and it undermines Title IX, the landmark legislation passed by Congress in 1972 to increase opportunities for women and girls,” he said.

Neuberger also acknowledged what he called the importance of supporting equal opportunities for everyone, regardless of their sex or gender identity. However, he claimed that transgender activists were seeking more than equal inclusion.

Neuberger also compared the issue to racial oppression. “The legal argument is simply that it’s like separate water fountains under Jim Crow, like separate schools for ‘Blacks’ and whites, under Jim Crow,” he said. “If we recognize transgender issues as fundamental rights, the transgender movement lead by law professors seeks to eliminate single sex high school sports in Delaware.”

Committee Chair Speaks

After the bill supporters’ remarks, Committee chair State Senator Sarah McBride opened up a line of questioning on Sen. Richardson. She asked about who the Senator spoke with in the community before submitting the bill, and if the bill opened up opportunities for equal funding in women’s sports. Sen. McBride also questioned whether or not Sen. Richardson understood what she called the potential harm to transgender youth who would be impacted by the bill.

“According to the 2018 School Climate Survey, LGBTQ students who faced discrimination and discriminatory policy in school, including in school programs, were three times as likely to miss school in the past month, had lower GPAs, had lower self esteem, and higher levels of depression,” said Sen. McBride. “The American Medical Association has stated that barring transgender girls from participating in school sports consistent with their gender identity can have the effect of increasing negative mental health outcomes, substance use, and suicide for trans kids.”

Sen. McBride then made her own remarks, calling the bill “a cruel solution in search of a problem.” “I didn’t run for this office to talk about transgender identities. I ran because I want to pass policies to expand and uplift,” she said. “But, when legislation comes before me that goes after young people, that goes a step too far.”

The Senator went on to say that transgender kids simply want to be kids, and that includes the ability to participate in school sports. “When you categorically exclude trans students from extracurricular programs consistent with their gender identity, you are categorically excluding an entire group of kids from educational programs that teach teamwork, persistence, and mutual support,” said Sen. McBride.

Bill Opposition

While many called into the hearing to voice their support of the bill, the measure also received a large amount of opposition from public stakeholders. Kaelea Shaner, an educator and transgender woman, was one of them. “This bill as proposed, despite its title, is not in any way about fairness of protecting women’s sports. Its language is verbatim the exact same language in other bills around the country targeting trans youth,” she said. “It deprives them of what it means to be a student, an athlete, and a kid. It is designed to isolate trans kids, thereby attempting to erase their presence from every day society.”

The League of Women Voters of Delaware also officially denounced the bill. Advocacy Chair, Linda Barnett said the bill violates the League’s key principle of supporting equal opportunity for all. “[Sports participation] provides the opportunity to practice teamwork, which is something that we need more of in our state and in our country,” she said. “It would be a terrible disservice to leave transgender females out of this opportunity. Putting a wedge between transgender girls and non-transgender [girls] is ugly.”

Next Steps

Communications Director for the Delaware Senate Majority Caucus Scott Goss tells 47ABC physical copies of the bill are now in Committee members’ hands. A majority of Committee signatures would allow the bill to be released. Thursday, lawmakers could reveal whether or not the bill has been released from Committee. However, bills in the Delaware State Senate do not need the signatures until June 30th.