RALEIGH — State Rep. Mark Brody (R-Union) on Tuesday filed House Bill 358, the “Save Women’s Sports Act,” making North Carolina the 30th state this year to consider a bill limiting transgender participation in girls’ sports.
The bill states that “All athletic teams for middle and secondary school students participating in interscholastic or intramural athletic activities conducted by a public school unit shall be expressly designated as one of the following based on biological sex: (1) Males, men, or boys; (2) Females, women, or girls; (3) Coed or mixed.
H.B. 358 also says that “Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex,” and that “Sex shall be recognized based solely on a person’s reproductive biology and genetics at birth.”
The language is also applied to all colleges and universities in the state that participate in intercollegiate sports. H.B. 358 additionally protects institutions from legal action by any transgender athlete who is excluded from participating in sports designated for the opposite sex and creates a cause of action for lawsuits by biological females who have to compete against biological males while in a girls’ sport.
“The bill itself has two main objectives,” Brody told North State Journal. “No. 1, it’s making a policy decision that males cannot compete in female leagues or individual sports. And secondly, in order to decide who is or isn’t a female, we put a bright-line test, that says whatever you were born biologically — were you an XX or an XY — that’s the test. It’s really as simple as that.”
Brody conceded that because of an executive order earlier in the year by President Joe Biden which opened up girls’ sports to transgender males, the fate of bills like this will ultimately be up to the courts.
“Is there a possibility of court cases? There’s a possibility of court cases for everything we do, so this is not an exception to the rule. It’s not a matter of if; it’s a matter of when,” Brody said. “But in the meantime, we’ve got to go through this and set our rules of our sports in North Carolina.”
EqualityNC, a state LGBTQ advocacy group, came out immediately with a statement blasting the bill.
“It’s beyond disheartening to see that the General Assembly has not learned the lessons of five years ago,” Rebby Kern, education policy director at EqualityNC, said, referring to the controversy over H.B. 2, North Carolina’s bill regarding, in part, transgender use of public bathrooms. “Young people all across this state, regardless of gender identity, deserve the opportunity to experience the benefits of being part of a sporting community.”
Beth Stelzer, the founder of Save Women’s Sports, a nonprofit advocacy group spearheading the move by state legislatures to pass the “Save Women’s Sports Act,” told NSJ in a phone interview that “North Carolina makes No. 30 on my list, and we are going to see other states follow suit.”
“I have hope in every state, no matter what political party the governor belongs to,” Stelzer said on the bill’s chance of overcoming a likely veto from Democratic Gov. Roy Cooper. “These states are going to have to stand their ground and protect their females.”
She agreed with Brody that despite bills like H.B. 358, the issue may have to be decided by the Supreme Court because the Biden administration has made clear they will use Civil Rights laws to open up girls sports to biological males.
“They made it loud and clear on Women’s Day, writing an executive order stating that Title IX meant protections on the basis of sex as well as gender identity and claiming that our laws are transphobic,” Stelzer said.
Idaho and Mississippi’s Save Women’s Sports Act have now been signed into law by their respective governors, while Kansas, North Dakota, Alabama and Montana have passed it in one chamber. South Dakota and Arkansas have passed it in both chambers, just leaving a governor’s signature to make it law.
But in a sign that corporate pressure and the legal landscape may be giving some conservative governors second thoughts, South Dakota’s Gov. Kristi Noem appears to have backtracked on signing the bill after initially supporting it. She told Fox News’ Tucker Carlson on March 22, “I’m not interested in picking a fight that we can’t win.” He responded by saying that she “caved to the NCAA,” Amazon and the Chamber of Commerce.
Despite pressure from activists and those in charge of powerful institutions, popular opinion seems largely on the side of the legislation.
A Spry Strategies poll in July 2020 found more than 75% of North Carolina likely voters were against biologically male transgender athletes participating in girls’ sports. A national Politico/Morning Consult poll from March 2021 found 53% supported Mississippi’s legislation, 32% opposed it and 16% were undecided.
The issue is a personal one for Stelzer, who remembers training as an amateur powerlifter in her home state of Minnesota and then having the competition canceled because of protests over biological males not being allowed to compete.
Stelzer said, since then, a small handful of transgender powerlifters have begun dominating the sport in the women’s category, and she doesn’t think it’s fair to the biological women.
“I carved out the time as a mom to attend the women’s state championships, and it took me about two years of training,” Stelzer said. “When you consider that they are an amateur athlete, as I am, they are crushing the competition. If you were to compare some of them with the best women ever, maybe it wouldn’t be so. But we’re looking at the same age, same training, same bodyweight; yes, they’re crushing the competition.”
She said this is not unique to her sport and that it only takes a single male to enter a female category to have a large impact. Stelzer cited Connecticut high school track-and-field, where there were only two transgender participants in the state, Andraya Yearwood and Terry Miller, but the two recieved 15 total medals at the state competition. In the 2008-09 athletic season, for example, Miller took first and Yearwood second in the 55-yard dash. Miller set a state indoor record of 6.95 seconds in the race, and Yearwood got 7.01, coming well ahead of the third-place finisher with 7.23. The year before, the two had also placed first and second in the 100 meters.
“Some people say it’s a solution in search of a problem, but it’s a growing issue worldwide,” Stelzer said. “And we have seen just two males enter into girls’ track in Connecticut and take over 85 opportunities away and take 15 state titles — just two males. So how many opportunities have to be lost before we do something? Do we have to wait until a girl is seriously injured or until all the records are held by males?”
Brody agreed, saying, “This is proactive legislation. I don’t want to wait until a female athlete, a biological female athlete, gets denied something that they worked very hard for because a transgender female athlete took that away from her.”
Stelzer said choosing this battle has resulted in frequent death threats, and she now has to travel with security.
“So you can see why some women aren’t speaking up.” she said. “We get bullied into silence.”
She said Democrats are in the same position as women are, where they are being bullied to stay silent on the issue despite being about evenly split on the issue, as was seen in the Politico/Morning Consult poll showing 40% of Democrats for the Save Women’s Sports Act and 42% against.
“This is not a partisan issue; this is common sense,” Stelzer said.
Brody says he’s “had a lot of good response from my fellow legislators, at least in the Republican caucus.” Since he’s just filed the bill, though, he said hasn’t yet been able to gauge any potential Democratic support.