News Every Day | 30 July 2021, 16:49

Contradictions between transgender legislation and DOE guidance

National Intramural Recreational Sports Association Soccer

It’s been a couple months since we’ve had an update regarding transgender women in sport. Overall, there has been minimal movement on the legislation; although a couple bills have been passed into law, others have died in committee or been vetoed by a governor. Regardless of your opinion on the matter, it’s important to know what’s happening in your state in order to make necessary adjustments to policies and procedures for your program. Many, although not all, bills do affect sport clubs and intramural sports.

To help provide a sense of scope, the following list notes active bills in each state; those specifying intramural and sport club participation are indicated with **.

Alabama
- HB 391 Signed by Governor
Arkansas**
- SJR 16 Read for 2^nd time and referred to committee 2/10/21
- SB 354 Signed by Governor 3/29/21
- SB 450 Signed by Governor 4/29/21
Arizona**
- SJR 16 Read for second time with amendment and re-referred to committee 2/23/21
- SB354 Read for 2^nd time and referred to committee 2/23/21
Connecticut:
- SB 324 Referred to committee 1/25/21
- HB 6128 Referred to committee 1/29/21
Florida**
- HB 935 Died in subcommittee 4/30/21
- HB 1475 Died in committee 4/30/21
- SB 2012 Died in committee 4/30/21
Georgia: **
- HB 276 Read for 2^nd time 2/8/21
- HB 372 Read for 2^nd time 2/11/21
- SB 266 Read for 2^nd time 3/5/21
Hawaii
- HB 1204 Referred to committee 2/1/21
Idaho
- Passed and Enacted; Overturned on appeal
Iowa**
- HF 184 Introduced and referred to committee 1/22/21
Kansas**
- SB 208 Passed as amended in Senate 3/17/21; Introduced and referred to committee in House 3/19/21 – Postponed until 2022
Kentucky**
- SB 106 Died in committee 4/2/21
- HB 471 Died in committee 4/2/21
Louisiana
- HB 542 Referred to committee 4/12/21
- SB 156 Vetoed by Governor 6/21/21
Maine**
- HP 682 Referred to House and Senate committee 3/10/21
Michigan
- SB 218 Referred to committee 3/10/21
Minnesota:
- HF 350 Referred to committee 3/10/21
- HF 352 Referred to committee 1/28/21
- HF 1657 Referred to committee 2/25/21
Missouri: **
- HB 1077 Referred to committee 2/18/21
- HJR 56 Referred to committee 2/18/21
- SB 503 Read for the 2^nd time and referred to committee 3/4/21
- SB 9 Read for the 2^nd time and referred to committee 6/26/21
Mississippi **
- SB 2536 Passed and signed by Governor 3/11/21
Montana**
- HB 112 Passed and signed by Governor 5/7/21
New Hampshire**
- HB 198 Committee hearing scheduled 3/9/21
New Jersey
- S 3540 Introduced and referred to committee 3/11/21
North Dakota
- HB 1298 Vetoed by Governor; Veto overridden in House 4/22/21; Veto sustained in Senate 4/22/21
New Mexico**
- HB 304 Referred to committee 2/4/21
Ohio**
- HB 61 Referred to committee 2/4/21
- SB 132 Referred to committee 3/17/21
- SB 187 Passed with amendments 6/24/21
Oklahoma**
- SB 331 Read for 2^nd time and referred to committee 2/2/21
- SB 2 Passed in Senate 3/1/21; Passed in House 4/20/21
Pennsylvania
- HB 972 Referred to committee 4/5/21
South Dakota – ** Passed House/Senate; Vetoed by Governor 3/29/21, executive orders provided for parts of the bill
South Carolina
- SB 531 Referred to committee 2/9/21
Tennessee
- HB 3 Passed and signed by Governor 3/26/21
- SB 228 Passed and signed by Governor 3/26/21
Texas: **
- SB 29 Passed in Senate 4/15/21; Read for 2^nd time in House 5/25/21
- SB 373 Read for first time and referred to committee 3/9/21
- HB 1458 Read for first time and referred to committee 3/5/21
- HB 3455 Read for first time and referred to committee 3/22/21
- HB 4042 Left pending in committee 4/20/21
- HB 4043 Read for first time and referred to committee 3/29/21
- HB 90 Filed 1^st Special Session 7/7/21
Utah
- HB 302 Died in committee 3/5/21
West Virginia: **
- HB 2141 Referred to committee 2/10/21
- HB 2676 Referred to committee 2/23/21
- HB 2734 Referred to committee 2/24/21
- HB 3292 Signed by Governor 4/28/21
- SB 341Referred to committee 2/18/21
Wisconsin
- AB 195 Read for 3^rd time and passed in Assembly 6/16/21; Read for 1^st time referred to committee in Senate 6/21/21
- AB 196 Read for 3^rd time and passed in Assembly 6/16/21; Read for 1^st time referred to committee in Senate 6/21/21
- SB 322 Public hearing held 5/26/21
- SB 323 Public hearing held 5/26/21

While we’re tracking the status of these bills on a state level, we’ve also been keeping an eye on this legislation from a federal level—US SB S.251 was read twice and referred to the Committee on Health, Education, Labor, and Pensions on 2/4/21. There hasn’t been a great deal of movement, but that could change as priorities change at the state and federal levels.

DOE guidance

In June, the Department of Education (DOE) came out with a statement that contradicts the bills that have passed and those that are in the pipeline by clarifying that transgender students were protected under Title IX:

“Today, the Department makes clear that all students—including LGBTQ+ students—deserve the opportunity to learn and thrive in schools that are free from discrimination,” education secretary Miguel Cardona said in a statement, as reported by USA Today. “The Supreme Court has upheld the right for LGBTQ+ people to live and work without fear of harassment, exclusion, and discrimination—and our LGBTQ+ students have the same rights and deserve the same protections.”

This statement, along with the guidance connected to it, could essentially override the legislation that has been passed and block any legislation in the future. (For more on the upcoming changes to Title IX, see: What’s Next for Title IX? and DOE: Transgender Athletes Protected Under Title IX). As we know, there is nothing that goes into law that doesn’t come with a fight from one side or the other. We’ll have to wait and see how this plays out in the courts as different groups combat the legislation as well as the DOE guidance.

Based on membership feedback from the survey included in the last article in this series, transwomen’s participation in sport doesn’t seem to be a problem for recreation departments on campuses just yet. This may or may not change; as with COVID, we just don’t know what tomorrow will bring. That being said, the Government Affairs Committee will continue to monitor this issue and provide updates periodically to ensure you have all the information needed to manage changes on your campus.