Mar. 13—When state Sen. Janne Myrdal testified before the North Dakota House Human Services Committee in support of HB 1298, she said she believes the bill has little to do with transgender people.
"For me, it is 100% a Title IX issue," said Myrdal, the bill's co-sponsor.
HB 1298 — which would bar trans athletes from competing on teams that align to the gender with which they identify (and not with their birth gender) — has come with no little controversy during the 2021 session of the North Dakota Legislature, prompting cries of protest from school officials, physicians and LGBT advocate groups throughout North Dakota. Opponents say the bill targets marginalized teens who already are vulnerable to discrimination.
Meanwhile, lawmakers who back the measure say the bill would preserve women's rights under Title IX, which protects against discrimination based on sex.
Myrdal and lead sponsor Rep. Ben Koppelman both have ties to anti-LGBT groups. Koppelman, R-West Fargo, is listed as a policymaker signatory for Promise to America's Children, a national coalition led by several prominent anti-trans organizations, including the Alliance to Defend Freedom, which has been identified as an extremist anti-LGBT hate group by the Southern Poverty Law Center. Prior to becoming a state senator, Myrdal, R-Edinburg, was the director of the North Dakota chapter of Concerned Women for America, a Washington, D.C.-based Christian women's organization that in the past has lobbied against anti-discrimination policies and repeated the widely debunked claim that offering protections to transgender people enables pedophiles and predators.
In a recent interview with the Grand Forks Herald, Myrdal vehemently denied she is anti-LGBT, and Koppelman said he doesn't consider himself to be anti-trans or pro-trans.
"What's a concern to me is when we start defining organizations that have moral points of view, if you want to say it that way, where we start labeling them with things like 'hate group,'" Koppelman said. "As I understand it, every person should be able to make the case for why they stand for certain values."
If passed, HB 1298 essentially would bar trans girls younger than 18 at publicly-funded schools from participating on girls sports teams. An earlier version of the bill also would have barred trans boys from participating in boys sports, but a clarification was added to the bill after some legislators raised concerns that the law would prohibit cisgender girls — girls who were assigned female at birth — from participating in some traditional boys sports, such as football and wrestling.
Advocates of the bill say some transgender girls might have a physical advantage over cisgender girls if they were to go out for high school sports, and the proposed legislation would ensure cisgender girls don't lose out on potential athletic or scholarship opportunities because of that disadvantage. Opponents say the issue is nonexistent in North Dakota and that since the North Dakota High School Activities Association already has regulations addressing the issue, the bill is redundant.
HB 1298 was passed by the North Dakota House of Representatives in a 65-26 vote last month. It is scheduled to be heard in committee in the Senate next week.
Nationwide, this year has seen a record number of bills targeting trans people in more than 20 state legislatures, but Koppelman said he was unaware of the national trend when he authored the bill.
Koppelman said the North Dakota bill is based in large part on the Fairness in Women's Sports Act, the Idaho bill that became the first piece of anti-trans legislation passed in the U.S. in 2020. The bill was later met with legal challenges, and The Idaho Press reported that a federal judge barred the policy from being enforced last August while it makes its way through the courts. Koppelman said he crafted HB 1298 to treat boys and girls sports equally in order to avoid some of the legal challenges encountered by the Idaho legislation.
Many of the bills targeting trans people in 2021 appear to be authored based on model legislation provided by a concentrated number of organizations, including Promise to America's Children and the Alliance to Defend Freedom, according to Faye Seidler, a Moorhead-based trans advocate and policy consultant. Koppelman said that while he did not use model legislation from any one organization, legislators in other states have since reached out to him to express interest in proposing their own legislation.
Mississippi's governor signed one such bill into law on March 11, the first bill targeting trans student-athletes passed in 2021. South Dakota Gov. Kristi Noem is also expected to sign a similar bill in the coming days.
The rights of trans people have been recognized in court with several legal victories — including issues around names, pronouns, bathrooms and locker rooms, public accommodation and housing, and inclusion of employment protections for Title VII, which prohibits discrimination based on race, color, religion, sex or national origin. These legal victories stem from the understanding that "the trans condition is an immutable characteristic determined from birth and falls under sex protections," Seidler said.
"These legislative efforts attempt to define sex in a way that eliminates transgender individuals from protections," she said. "The goal could be to force a lawsuit, appeal it, get it taken to a Supreme Court and get a victory that redefines sex as a conservative political construction rather than be based in the diversity of biology or science. If that were achieved, then all the victories and protections afforded to trans individuals could become moot or otherwise less effective."
Koppelman told the Herald he hadn't thought that far ahead, although he said he sees other potential avenues for future legislation similar to HB 1298, such as protecting scholarship opportunities for women in construction and engineering fields.
But Seidler said these debates about trans people are "alarmingly" similar to discriminatory actions of the past — for instance, excluding Black people from playing sports or using certain bathrooms or locker rooms.
"The reason marriage equality passed was likely because more than 90% of people personally know someone who is gay and saw them as just people living their life," she said. Only about 30% of people personally know someone who is transgender, so 70% of folks are getting all their information from comment sections or news stations."