WV latest state to advance ban on transgender students in sports | News

CHARLESTON — Transgender middle- and high-school students wouldn’t be allowed to play on sports teams matching their gender identity under a bill the West Virginia House of Delegates’ Education Committee introduced and advanced Tuesday.

This ban would apply only to sports under the supervision of the West Virginia Secondary School Activities Commission, which includes public schools broadly and some major private schools, such as Charleston Catholic. Co-ed sports would not be affected.

West Virginia is the latest in a string of states pushing bills like this.

The so-far-nameless and unnumbered bill might be illegal, because of federal-level decisions on transgender rights, said Eli Baumwell, policy director for the American Civil Liberties Union of West Virginia.

There’s a 2020 ruling from the U.S. 4th Circuit Court of Appeals, which covers West Virginia, that upholds transgender students’ rights to use bathrooms matching their gender identity. It could mean transgender students have sports access rights as well.

That decision is being appealed to the U.S. Supreme Court. But it was based on the “Bostock” Supreme Court ruling from earlier in 2020, which found that firing someone for being gay or transgender violated part of the federal law called Title VII.

Baumwell told delegates during Tuesday’s committee meeting that they risk violating another section — Title IX, which bans sex discrimination in sports — based on these court rulings. He said that could jeopardize federal funding.

Furthermore, President Joe Biden has issued an executive order supporting transgender rights.

The committee voted 15-6 on Tuesday to advance the bill to the floor of the full House of Delegates, which has a Republican supermajority. Because no delegate pushed for a roll-call vote, the committee voted by raising hands, and because the House doesn’t provide video of its committee meetings, it was unclear on the audio who voted how.

Bernie Dolan, executive director of the Secondary School Activities Commission, said that, now, eligibility to play on single-sex teams is based on how a school categorizes a student in the West Virginia Education Information System (WVEIS).

“If they put them in WVEIS as a female, then that’s who they compete for,” Dolan said. “If they put them in as a male, they compete on the male side.”

He said this was the policy before transgender students even became a discussion. He said he believes there’s a current policy allowing for an appeal in cases where a transgender student is so much more powerful than another student in games and practices that the transgender student could harm other students on the court or field, but he didn’t provide a copy of the policy Tuesday.

Dolan didn’t answer questions in the committee Tuesday, because he was in another committee. Del. Cody Thompson, D-Randolph, tried to postpone voting on the bill until Dolan could get there, but the postponement was voted down.

The bill would add to state law a method of tracking students’ birth sex, but based on their genitals, not their chromosomes.

To an existing piece of law saying a state-certified birth certificate showing identity and age is required to enroll in schools, the legislation would add a line saying the certificate has to show the child’s “sex at time of birth.”

In existing law, someone may enroll a child without a birth certificate if they submit an affidavit saying why they can’t provide one. To this exemption, the bill would add a mandate that the affidavit be accompanied by “a signed physician’s statement indicating the pupil’s sex based solely on the pupil’s unaltered internal and external reproductive anatomy.”

“What do we do with children that are born with both sex organs?” asked Del. Danielle Walker, D-Monongalia.

“We’re going to subject a child to go to a doctor and essentially show them their genitalia?” asked Thompson.

Del. John Doyle, D-Jefferson, said he opposes the bill because of the possible legal issues and because of what it suggests about girls’ strength.

He said he had a platoon member in Vietnam who weighed barely 100 pounds, with no upper body strength and couldn’t carry his heavy machine gun and 200 rounds of ammunition, as required.

“I’m a big-time women’s college basketball fan, and I’m telling you, every time I see a game, there are people out there playing that could have easily carried that,” Doyle said.

Like with other bills this legislative session, Republicans’ defenses of the bill — which their Republican committee chairman, Joe Ellington, R-Mercer, chose to run — were limited. One delegate suggested testosterone could be considered a performance-enhancing drug.