The Florida House passed a bill on Wednesday banning transgender girls from participating in school sports and requiring girls whose sex is “disputed” to undergo inspections of their genitalia.
H.B. 1457 passed with a 77-40 vote largely along party lines; only one Democrat voted for it and no Republicans opposed it. The bill is drawing attention at a time when dozens of states are attacking transgender and LGBTQ rights because of how it requires schools to determine a student-athlete’s sex.
Related: Biden issues executive order against gender discrimination in education including LGBTQ people
“We gave everything we had to give,” said state Rep. Omari Hardy (D) on Twitter. “We reasoned, we shouted, we pleaded, we cried, we broke down & left the House Floor.”
But that wasn’t enough to stop H.B. 1457 from passing because Republicans control the chamber.
Like most state-level bills attacking transgender student-athletes, this bill only bans transgender girls from school sports, not transgender boys. It also affects all levels of education, including the college-level, using language parroted by Republicans across the country about how cisgender girls are being denied scholarships and may be crowded out of sports altogether by transgender students, something that has never happened in any state or in any sport.
But unlike many states, where these bills have either been vague about how sex will be determined or point to birth certificates, the Florida bill says that a female student-athlete’s sex can be disputed. A dispute would require a “health examination and consent form or another statement from the student’s health care provider to verify the student’s biological sex.”
“The health care provider may verify the student’s biological sex as part of a routine sports physical examination by relying only on one or more of the following: 1. The student’s reproductive anatomy; 2. The student’s genetic makeup; or 3. The student’s normal endogenously produced testosterone levels,” the text of the five-page bill reads,” the bill states.
Schools that don’t force a student-athlete to undergo an examination of her genitalia, DNA, and hormones could face lawsuits if the bill passes.
The bill is modeled on last year’s bill in Idaho, which a federal judge has already issued an injunction against. Democrats in that state said that the law could allow competitors with a grudge against a girl on an opposing team to challenge her gender and that the threat of such a challenge – and the ensuing invasive testing – could make even cisgender teen girls afraid to compete in school sports.
“It would damage and hurt her reputation and dignity for life,” said Idaho Sen. Michelle Stennett (D) when the bill was being debated in the legislature.
Moreover, the bill doesn’t say exactly how genitalia, DNA, or hormones should be used to determine a student’s sex, especially considering the possibility of contradictory results to various tests.
“This bill asks doctors to perform procedures way outside of the standards of care,” pediatrician Jessica Duvall told Forbes. “Moreover, even if the tests were performed against medical society norms, more often than not they do not yield clear, easily interpreted results.”
Brandon J. Wolf of Equality Florida called the bill “cruel and grotesque.” He also pointed to a bill in the Florida Senate – S.B. 2012 – which wouldn’t ban transgender girls from competing sports but specifies that their testosterone must be below a certain level, a requirement that could be difficult to meet considering how inaccessible gender-affirming health care can be, especially for minors.
“A 12-year-old trans female youth would be forced to adhere to Olympic standards for testosterone levels,” Wolf said.
“Transgender students, like all young people, deserve the opportunity to participate in physical education and extracurricular sports that enrich their school experience and teach them about health, teamwork, and sportsmanship,” said Melanie Willingham-Jaggers of GLSEN. “However, Florida legislators seem bound and determined to harm these young people, as well as diminish the education provided to all students by restricting the curriculum and putting up truly perverse barriers to participation in sports.”
“The invasive physical exams required by these bills and similar ones in other states are deeply harmful and inappropriate.”
If the bill passes and is signed into law, it would face an uphill battle in the courts. President Joe Biden has already issued an executive order saying that discrimination on the basis of gender identity is illegal in education, and that includes school sports.
His executive order is consistent with the Supreme Court’s decision last year in Bostock v. Clayton Co., which said that it’s impossible to discriminate against LGBTQ people without taking sex into account, therefore federal law that bans discrimination “because of sex” also bans anti-LGBTQ discrimination.
In fact, bills such as this one are a perfect example of how anti-LGBTQ discrimination is discrimination “because of sex,” even if one defines sex as sex assigned at birth. Here, girls who want to compete in school sports are being examined to determine their sex assigned at birth and denied opportunities on that basis alone.
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