In late March of 2020, Idaho Governor Brad Little signed into law “The Fairness In Women’s Sports Act,” effectively banning transgender girls and women from competing in female public school and university sports leagues. This law, which takes effect on July 1, 2020, is the first of its kind. Students whose eligibility is questioned are required to provide a physician’s note that verifies her “biological sex” on the basis of three criteria: “internal and external reproductive anatomy,” “the student’s endogenously produced levels of testosterone,” and “an analysis of the student’s genetic makeup.”
As the name suggests, the law seeks to create a level playing field for female athletes, citing that the physiological differences between transgender women born male would put cisgender women and girls at a disadvantage. The Idaho High School Activities Association previously had established restrictive guidelines for transgender girls to participate in sports. With rules similar to those set forth by the International Olympic Committee (IOC) and the National Collegiate Athletic Association (NCAA), it allows transgender girls to compete on women’s teams if they had completed one year of hormone therapy. The IOC policy requires athletes to demonstrate specific testosterone levels for one year.
Unfortunately, sex and gender are not so clearly defined, even by the criteria set by the bill. Kristine Newhall, assistant professor of kinesiology at SUNY Cortland said, “We’ve gone through all these [measures] of sex: genitalia, secondary sex characteristics, chromosomes, and then it’s hormones,” referring to the recent fixation on testosterone. Even within biological sex, there are a number of variations in both physical characteristics and chromosomal expressions that exist.
Newhall added that there is no one bodily reason that an athlete would perform better than their competitors. She notes that, for example, ice skaters with larger lungs might be better equipped for the sport. Even then, women and girls face other determinants that have nothing to do with physiology. According to Sarah Axelson, director of advocacy at the Women’s Sports Foundation, an organization dedicated to gender equality in sports, the real disadvantage deals with the institutions that regulate sports.
Already, the legislation is being challenged by groups like the American Civil Liberties Union of Idaho, who responded, “The ACLU will see the governor in court.” Other critics of the bill include social equality and lesbian, gay, bisexual, transgender, and queer groups who call the legislation discriminatory and harmful.