The bad faith behind Kansas’ ‘Fairness in Women’s Sports’ legislation

November 3, 2022 3:33 am

Sen. Renee Erickson, shown at this year's state fair, defended legislation banning transgender girls and women from sports by saying it was necessary to ensure competitive fairness. (Sherman Smith/Kansas Reflector)

The Kansas Reflector welcomes opinion pieces from writers who share our goal of widening the conversation about how public policies affect the day-to-day lives of people throughout our state. C. Malcolm Ellsworth’s writing has appeared in The New Yorker, The Christian Science Monitor and numerous literary journals.

After the International Olympic Committee asked the governing bodies of specific sports to draft regulations about transgender athletes, FINA, the organization responsible for administering aquatic competitions, drafted the most stringent rules to date regarding the participation of male-to-female transgender athletes.

Under the new policy, any transgender person competing in a women’s category must have suppressed and maintained testosterone levels below 2.5 nmol/L continuously since the onset of puberty. FINA based this policy on the input of three distinct research groups composed of retired athletes, coaches, experts in physiology, endocrinology and human performance, as well as legal and human rights professionals. It was approved in June by 71% of the 152 federation members with voting rights.

That same week, the International Cycling Union announced changes to its regulations, lowering permissible testosterone levels to 2.5 nmol/L and extending the required transition period from 12 months to 24 months.

Meanwhile here in Kansas, many politicians have been preoccupied with transgender athletes for several years. The problem is — rather than dealing with adults competing in elite sports (largely beyond their purview) — they’ve primarily focused on transgender children.

The Fairness in Women’s Sports Act was introduced in 2021 as SB 208 (with the same text as the initial versions of Arkansas SB 354, Montana HB 112 and West Virginia HB 2917, among others). The contents were later dropped into the shell of a defunct bill (a procedure known as “gut and go”) and it was passed as SB 55. Initially, the bill, like “fairness” bills in at least seven other states, listed the examination of children’s genitals as a means of resolving disputes. Fortunately, this was later struck from the Kansas bill’s language. However, the language applying the ban to elementary school children has remained throughout numerous iterations. In 2022, a strategically edited bill was introduced as SB 484, but once again, it was hidden under an unused bill’s number and eventually passed as SB 160. (C. Malcolm Ellsworth)

Bills dubbed “The Fairness in Women’s Sports Act” were passed by the Legislature in 2021 and 2022 but were subsequently vetoed by the governor. This legislation would have banned transgender children as young as 5 from participating in virtually any sports. Sen. Renee Erickson, who introduced the bills (but refused to reveal their source), has stated that their objective was “to protect female athletes, K through collegiate.”

In reality, a state prohibition against transgender athletes in collegiate competitions is likely untenable. Chances are it would only result in the NCAA bypassing Kansas as a venue for lucrative sporting events, as indicated in the mandatory fiscal impact statement that accompanied the 2021 “fairness” bill.

High school sports would be a more reasonable context for regulations regarding the participation of transgender girls, and, in fact, the Kansas State High School Activities Association has had such a policy in place for a number of years.

This organization — with more than 70 board members from across the state, procedures for privacy, an established appeals process, and oversight by the Kansas Board of Education — is well-suited to continue with the administration of student athletes, even transgender ones. Although, at this point in time, there is only one male-to-female transgender child in their records.

Regulating the athletic activities of younger children is, to say the least, problematic.

Anyone who’s watched a 7th grade basketball game knows there’s a wide range of physiques and athletic abilities in middle school. Attempting to level the playing field, with such variations in development, would be nearly impossible. Middle school is also the point at which some children with gender dysphoria may opt to start taking puberty blockers. The effects of these drugs (used since the 1970s in the treatment of precocious puberty) are not permanent, but in natal males will suspend the anatomical changes associated with higher testosterone levels such as taller stature and increased muscle mass.

This composite was compiled from www.cdc.gov/growthcharts. The original charts were developed by the National Center for Health Statistics in collaboration with the National Center for Chronic Disease Prevention and Health Promotion. (CDC Growth Charts: United States)

The inclusion of grade school children is particularly troubling. To be clear, boys and girls are similar in weight, height, and testosterone levels until puberty. During committee hearings at the Statehouse, numerous attempts were made to remove elementary school students from the bills’ language, yet the suggested amendments were rejected.

Set aside the fact that there are few transgender athletes in Kansas or the fact that Kansas taxpayers will foot the bill for the inevitable lawsuits. Ultimately, it is the insistence on including 5- to 10-year-olds that begins to reveal the ill will and willful ignorance of these legislative efforts.

It’s cold comfort to discover that the Fairness in Women’s Sports Act did not actually originate in Kansas. We are one of at least 20 states that have been drawn into a prodigious and well-financed national campaign orchestrated by The Alliance Defending Freedom. This group has infiltrated state governments with boilerplate “fairness” bills containing the same twisted citations and invidious language. They have submitted skewed testimony to legislative committees and riled up public outrage with maudlin anecdotal evidence about transgender women.

These kinds of political machinations have no place in Kansas. Laws, especially those affecting young people, must be created in good faith: unadulterated, level-headed, and yes, fair. If we allow our Legislature to be dominated by the histrionics of outside forces, we risk losing sight of our own values. The KSHSAA handbook states that activities such as sports “show a person how to win and how to lose” and through them “students learn tolerance and understanding.”

Why wouldn’t we want that for all our children?

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C. Malcolm Ellsworth
C. Malcolm Ellsworth

C. Malcolm Ellsworth was a corporate freelancer in printing and advertising for more than 20 years before returning to writing full-time. Her work has appeared in The New Yorker, The Christian Science Monitor and numerous literary journals; her book of poetry, “Artesian Well,” was inspired by her childhood in rural Iowa. She is currently working on a novel set in the Flint Hills.