Chair Baumgardner and Members of the Committee,
Thank you for the opportunity to present testimony today. My name is Aileen Berquist, Community Engagement Manager for the American Civil Liberties Union of Kansas. We are a nonpartisan, non-profit organization that works to preserve and strengthen the constitutional liberties of everyone in our state.
The ACLU of Kansas stands strongly opposed to SB 484. This bill is based on a series of falsehoods leading to erroneous conclusions: in this case, the inclusion of transgender women and girls in sports somehow undermines opportunities for cisgender women and girls. It is important to state outright that there is no evidence to show any dominance by trans athletes at any level of competition. It is also important to state that trans students participate in sports for the same reasons other young people do: to challenge themselves, improve fitness, and be part of a team. Excluding trans students from participation deprives them of real opportunities available to their peers and sends the message they are not worthy of a full life.
ACLU lawyers are currently counsel for Plaintiffs in litigation challenging a similar bill passed by the State of Idaho in 2020, Hecox v. Little, and for Intervenor-Defendants Andraya Yearwood and Terry Miller, in Soule v. CIAC in Connecticut, defending the rights of transgender student-athletes to compete in high school athletics consistent with their gender identity.
By imposing a wholesale ban on girls and young women who are transgender participating in athletics consistent with their gender identity, this bill discriminates based on transgender status and sex in violation of the United States Constitution and Title IX of the Civil Rights Act. SB 484 would impact youth of all ages who wish to participate in sports on any level in Kansas, from elementary school to college. This bill would deprive a subset of students and young people of the opportunities available to their peers and, if passed, would send a message to vulnerable transgender youth that they are not welcome or accepted in their communities.
SB 484 is based on the flawed premise that exclusion of girls and young women who are transgender benefits non-transgender girls and women. In reality, transgender people of all ages have been participating in sports consistent with their gender at all levels for years—including at the Olympics since 2004 and in the NCAA since at least 2011. With years of inclusion, there has been absolutely no categorical dominance by women and girls who are transgender at any level. Despite being eligible, no transgender female athlete has ever qualified for, let alone medaled in, a women’s event at the Olympics. Athletic success is based on many factors that vary from sport to sport. Trans athletes, like other athletes, do not have a single body type; there is absolutely no merit to the claim that women and girls who are transgender automatically have advantages in sport. In fact, particularly when referring to young people, many trans athletes have physiological characteristics that are typical of peers with their gender identity and not their assigned sex. This means that a girl who is transgender may have more physiological characteristics typical of non-transgender girls than non-transgender boys.1 Thus, any data purporting to compare the relative athletic abilities typical of non-transgender girls and non-transgender boys simply do not apply to most transgender youth.
By singling out transgender women and girls and enacting a sweeping ban on participation in athletics, SB 484 violates both the United States Constitution and Title IX of the Civil Rights Act. Where a law singles out people because their gender identity does not match the sex assigned to them at birth, it necessarily discriminates on the basis of sex and trans status, thus triggering heightened equal protection scrutiny under the Constitution. “[I]t is impossible to discriminate against a person for being ... transgender without discriminating against that individual based on sex.”4 As the U.S. Supreme Court has explained, “[a]ll gender-based classifications today warrant heightened scrutiny.”5 There is no exception to heightened scrutiny for gender discrimination based on physiological or biological sex-based characteristics.6 This bill, if passed, would separately trigger heightened scrutiny for discriminating against individuals based on transgender status. In 2020, an Idaho court enjoined a similar ban on transgender women and girls participating in women’s athletics and reached the inescapable conclusion that the Act discriminates on the basis of transgender status” and thus triggered heightened scrutiny.7 The court reasoned, “the Act on its face discriminates between cisgender athletes, who may compete on athletic teams consistent with their gender identity, and transgender women athletes, who may not compete on athletic teams consistent with their gender identity.”8
Parties who seek to defend gender-based and trans-status-based government action must demonstrate an “‘exceedingly persuasive justification’ for that action.” Under this standard, “the burden of justification is demanding, and it rests entirely on the State.”9 The Kansas legislature so far has offered no justification for SB 484 except for hypothetical future problems that have not arisen. But under heightened scrutiny, justifications “must be genuine, not hypothesized or invented post hoc in response to litigation.”10 This demanding standard leaves no room for a state to hypothesize harm and impose a categorical exclusion far exceeding anything utilized even at the most elite levels of competition. Put simply, fear of or animus towards transgender people is not a legitimate justification for this legislation. Applying the heightened scrutiny standard, the Hecox court enjoined Idaho’s ban on women and girls participating in women’s sports solely because they are transgender, finding the state’s proffered justifications wholly insufficient.11 Idaho, like Kansas, already had regulations in place governing the participation of transgender athletes in student athletics and could not justify the additional ban – particularly in the absence of any examples of any transgender athletes even competing in the state.
Likewise, if passed, SB 484 would violate Title IX of the Civil Rights Act of 1964. Title IX protects all students—including students who are transgender—from discrimination based on sex. Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”12 The overwhelming majority of courts to consider the issue have held that discrimination against transgender students in schools is prohibited sex discrimination under Title IX.13 Following the Supreme Court decision in Bostock, the fourth circuit applied the reasoning used in that case in their decision on Grimm v. Gloucester County School Board, that discrimination based on sex includes discrimination based on gender identity under Title IX. The Supreme Court denied cert in June 2021.14
The Biden-Harris administration has made clear that it intends to enforce federal civil rights statutes, including Title IX, consistent with the Supreme Court’s holding in Bostock.15 This means that should Kansas pass SB 484 or bills like it that target transgender students for discrimination, it will not only likely face litigation by private parties but also by the federal government. And such a violation of Title IX will not only cost the state substantially in litigation costs but will also put the state’s federal education funding at risk. For FY 2022, the estimated federal funding for primary and secondary education was over $379 million.16
Such an extreme policy is out-of-step with prevailing international and national norms of athletic competition violates the United States Constitution and federal civil rights law, puts Kansas at risk of losing hundreds of millions of dollars in federal funding, and harms transgender youth, all to solve a problem that plainly does not exist. Transgender students already live and go to school in Kansas, they play sports and enjoy time with their friends, and they deserve the chance to succeed and thrive like any other student. For these reasons, we urge you to vote no. Thank you.
1 See, e.g., Hecox v. Little, No. 1:20-CV-00184-DCN, 2020 WL 4760138, at *31 (D. Idaho Aug. 17, 2020)(finding that “there is a population of transgender girls who, as a result of puberty blockers at the start of puberty and gender-affirming hormone therapy afterward, never go through a typical male puberty at all”).
2 NCAA Office of Inclusion, NCAA Inclusion of Transgender Student-Athletes (August 2011), available at https://13248aea-16f8-fc0a-cf26-a9339dd2a3f0.filesusr.com/ugd/2bc3fc_4a1.... 3 Id.
4 Bostock v. Clayton Cty., Ga., ––– U.S. ––––, 140 S. Ct. 1731, 1741, ––– L.Ed.2d –––– (2020).
5 United States v. Virginia, 518 U.S. 515, 555 (1996).
6 See Tuan Anh Nguyen v. INS, 533 U.S. 53, 70, 73 (2001).
7 Hecox, 2021 WL 4760138 at *27.
9 Virginia, 518 U.S. at 531.
10 Id. at 533.
11 Hecox, 2020 WL 4760138, at *31-*35.
12 20 U.S.C. § 1681(a).
13 See, e.g., Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1051 (7th Cir. 2017); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 288 (W.D. Pa. 2017); M.A.B. v. Bd. of Educ. of Talbot Cty., 286 F. Supp. 3d 704, 719-722(D. Md. 2018).
14 See, e.g., Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020), as amended (Aug. 28, 2020)(applying Bostock and holding that school policy of excluding boy from restroom solely because he was transgender violated Title IX)
15 Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20... order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/.
16 United States Dep’t of Education, Fiscal Years 2010-2022 State Tables for the U.S. Department of Education, https://www2.ed.gov/about/overview/budget/statetables/index.html.