With the UCI Cyclocross Worlds arriving in Fayetteville, Arkansas on the near horizon—they’re happening January 28-30, 2022—it seems like a moment to discuss the anti-trans legislation that the state enacted in the spring of 2021. At the time, it was national news, and some of the American cycling community was outraged. There was a discussion of doing something. Some wanted to try to take the Worlds, and other upcoming national and international races, away from Fayetteville and Arkansas. Some wanted a boycott. Some wanted greater engagement.
Most of that talk seems to have disappeared. I want to bring it up.
But, before I go down that road, it’s important to know exactly what happened and where things stand. So, herewith I will explain what occurred. If we’re going to criticize the legislation, we ought to know what it is.
There are two bills that comprise the anti-trans legislation.
The first is:
Senate Bill 354— “To Create Fairness in Women’s Sports Act.”
Senate Bill 354, the “To Create Fairness in Women’s Sports Act.” It specifies that sports teams at public and taxpayer-funded schools must limit male teams to people who are considered biologically male and female teams to people who are biologically female. A person who can prove harm is entitled to cash damages. It was introduced by Republican State Senator Missy Ivin, advanced out of committee via party lines, and passed votes in the state senate and state house of representatives largely on party lines. Governor Asa Hutchinson, a Republican, said, “This law simply says that female athletes should not have to compete in a sport against a student of the male sex when the sport is designed for women’s competition. As I have stated previously, I agree with the intention of this law. This will help promote and maintain fairness in women’s sporting events,” after he signed the bill into law on March 25, 2021. It became Act 461.
State Representative Sonia Eubanks Barker, Republican, the primary sponsor of the legislation, claimed, “I could cite you example after example of what this bill addresses, but I’m sure you’ve heard, seen and read where biological males are competing in women’s sports.” When pressed to name a specific example, she could not name any. Nor have any of the legislators who voted for the bill.
Taking advantage of assumptions.
This is both the beauty and the problem with the law. On the one hand, it might seem to make sense that males have more testosterone and thus could be naturally stronger and faster. But that seeming advantage largely disappears in reality. There is no evidence that testosterone alone confers a competitive advantage; when the International Association of Athletics Federations (IAAF) created a testosterone limit for female athletes in 2018, researchers called it “unscientific,” pointing out “direct (causal) associations between testosterone levels and medal winning cannot be determined, and that proving androgen sensitivity in athletes ‘is also problematic since reproducible, valid laboratory tests to detect androgen sensitivity do not exist.’” Testosterone levels in males and females vary greatly, enough that there’s some overlap between the sexes from the start. And that’s just a single biochemical attribute; success in all sports entails many different physical and mental attributes working together.
Any casual observer can notice that body types vary dramatically within the sexes, as much as between. A five-foot tall girl or boy might have a hard time succeeding on a girls’ high school basketball team, for example. And there have been vanishingly few examples of male-to-female trans athletes crushing their competition, and fewer even winning at a high level.
This legislation also ignores the fact that the National Collegiate Athletic Association (NCAA) has long had a policy regarding trans athletes. The NCAA specifies that trans women who want to compete in women’s sports must have undergone at least a year of testosterone-suppression therapy before competing. And their transgender handbook states, “According to medical experts on this issue, the assumption that a transgender woman competing on a women’s team would have a competitive advantage outside the range of performance and competitive advantage or disadvantage that already exists among female athletes is not supported by evidence.” That policy was enacted 11 years ago, in 2010.
Not surprisingly, there have been efforts to determine if there are differences in athletic ability of boys and girls. According to the study “Sex differences in athletic performance emerge coinciding with the onset of male puberty,” published in Clinical Endocrinology in 2017, “gender divergence in athletic performance begins at the age of 12-13 years and reaches adult plateau in the late teenage years.” So, into junior high, at least, there isn’t a difference worth worrying about, let alone legislating against.
There isn’t a national policy or guidance for high school athletics. 16 states and the District of Columbia have a permissive policy, six states have no policy, 16 states have some restrictions, nine states have bans, and three states require surgery.
As the American Civil Liberties Union (ACLU) points out, most of the legislation trying to keep trans athlete out of their assigned identity groups is based on myths.
The second bill is:
House Bill 1570— “To Create The Arkansas Save Adolescents from Experimentation (SAFE) Act.”
House Bill 1570, “To Create The Arkansas Save Adolescents from Experimentation (SAFE) Act.” The legislation is designed to deny any form of medical gender-affirming care for minors. It prevents doctors from advising, discussing, prescribing hormone-suppressing drugs as well as performing surgeries. It also prevents health insurance policies in Arkansas from covering any of the costs of such treatments. It was introduced by Republican Representative Robin Lundstrum, passed through the Public Health, Welfare, and Labor Committee via a party-line vote, and was passed into law via almost completely party-line votes.
Governor Hutchinson vetoed the bill, stating, “It did not protect the youth. It interfered with the government getting into the lives of transgender youth, as well as their parents and the decisions that doctors make.” Lundstrum moved to override the Governor’s veto, which, in Arkansas, just takes a simple majority vote. And the bill passed again, becoming Act 626, making it the first such law in the nation.
Lundstrum claims, “”Now we are protecting children from experimentation, both surgically and chemically. I think that’s a good step forward, and they can make the decision when they are 18.” Opposing the law is the American Medical Association (AMA), the American Psychological Association (APA), the American Academy of Pediatrics (AAP), and the ACLU), as well as many groups, both civic and business, including The Arkansas Chamber of Commerce, the Walton Family Foundation, Northwest Arkansas Council.. The AMA released this statement from board Member Michael Suk, MD, JD, MPH, MBA, “The AMA opposes the dangerous intrusion of government into the practice of medicine and the criminalization of health care decision-making. Gender-affirming care is medically-necessary, evidence-based care that improves the physical and mental health of transgender and gender-diverse people.”
There is no evidence of any such surgical treatments occurring in Arkansas. And there have been no injured parties coming forward in Arkansas to express harm from such treatments.
The culture wars come to Arkansas.
In his opposition to the bill, Hutchinson expressed frustration about culture war skirmishes occurring in his state. He told The New York Times:
“That’s one of the biggest problems in the cultural war that we have — sometimes we’re trying to address the fear of something that does not exist in reality. If you just look at Arkansas itself, there’s not any cases of biological males trying to compete in women’s sports. It’s not a problem that’s being addressed. It’s a concern about a future potential problem and what the legislature sees as trends across the country. And so, yes, that’s part of the challenge of the cultural wars that we’re engaged in. Many times we’re acting out of fear of what could happen, or what our imagination says might happen, versus something that’s real and tangible.” It’s striking that not only did he accurately identify the problem, but he also pointed out the fallacy of the bill he signed into law.
The banning of gender-affirming care is first in Arkansas, but something like 21 states seem to have similar bills that are in various stages of moving through legislatures. And at least three states have already banned trans athletes from sports as well as another 25 are pursuing similar legislation.
These bills have little indication of starting as grassroots efforts. Lundstrum thanked several national groups for support: the Family Research Council, the Heritage Foundation, and the Women’s Liberation Front, in addition to the local Arkansas Family Council. Critics of the bills see them as so-called ‘model legislation,’ which is a successful tactic of the conservative American Legislative Council (ALEC). And there are allegations that a social-policy spinoff of ALEC called the National Association of Christian Lawmakers that may have been surreptitiously involved. The Human Rights Campaign, in a statement on their site, asserted, “These bills come from the same forces that drove previous anti-equality fights by pushing copycat bills across state houses — dangerous, anti-LGBTQ organizations like the Heritage Foundation, Alliance Defending Freedom (designated by Southern Poverty Law Center as a hate group), and Eagle Forum among others.” No evidence has yet to surface proving this is model legislation, though both those for and against see national, not local, forces at work.
Moral Panic
Bills like these seem to be fanning the flames of a moral panic to divide and motivate. It’s not easy to use naked racism as an organizing ploy anymore. It’s gotten much harder to use homophobia as an organizing ploy. In both instances, there are just too many of the demonized groups, or too many people are close with people in those demonized groups, for there not to be fairly severe blowback from large groups of people. But trans youth are a tiny group; the trans youth population in Arkansas is estimated at about 1450 in a population of three million, or about one in every 2,143 Arkansans. Chances are those kids, and their families, are not very open about their identity. Hidden in plain sight, they’re an easy mark to demonize and discriminate against. Creating a hidden enemy can motivate through fear, and this legislation is a dog whistle to some, and is pushed as “common sense” to those who aren’t familiar with the issues. The sports bill is framed by its proponents as stopping discrimination against “real” girls. The medical care bill is framed by its proponents as the stopping the misguided medical industry from maiming confused kids, because they need protection not only from experts but from their own parents.
It feels weird that two non-issues have suddenly become important to legislators in almost half the states in the nation. Especially when there are plenty of concerns that seem far more pressing, Covid and the economy being just two that would seem to draw interest and attention from just about everyone. But that’s the beauty of moral panics. They distract from a more pressing reality. But that doesn’t make them any less destructive.
January 9, 2023
The Arkansas state government meets in odd-numbered years for legislative sessions, and even-numbered years for fiscal sessions, unless a special session is called. For legislative sessions, the legislature opens on the second Monday of January. So, the next time the legislature could amend or repeal these laws is after January 9, 2023. That’s a long time. More so for a kid.
Legislation here is a long game. The Arkansas General Assembly has two houses. There are 100 members in the House of Representatives currently comprised of 76 Republicans and 24 Democrats. The State Senate has 35 members currently comprised of 27 Republicans, seven Democrats, and one Independent. Members of the House serve two-year terms, while members of the Senate serve four-year terms. It’s within the realm of possible to flip the House in 2022, but it’s harder to flip the senate as only 18 seats are up for re-election. The power of incumbency is big, but there are term limits, so change is potentially possible. But possible doesn’t mean likely. The people I spoke with in Arkansas don’t seem to think the composition of the legislature is likely to flip in the next election cycle.
Governor Hutchinson is term-limited, so the governor’s race is open. The first declared candidate is Sarah Huckabee Sanders, Republican, former press secretary to President Donald Trump, who appears to revel in culture war skirmishes.
‘Voting the bums out of office’ in Arkansas, with such a lopsided partisan state government, is a hard way to drive change. It would seem that a ‘hearts and minds’ campaign is more likely to yield change, but it’s still not easy. It would seem to require a concerted effort on many fronts.
The more immediate possible remedy is through the courts.
The ACLU denounced the laws as they were enacted. With Act 626, the denying of care for trans youth, they sued the state for a preliminary injunction on May 25th, 2021, on behalf of four transgender kids and their families, claiming their constitutional rights as enumerated in the 14th and first amendments were being violated. A Federal judge blocked the ban on July 21, a week before the law was to go into effect. This decision is a temporary one, and only holds until the resolution of a court case on the matter. The state appealed 30 days after the decision, and did not seek an expedited review. The ACLU will file a brief with the eighth circuit in January 2022. The trial is expected around the week of July 25, 2022.
While the ACLU opposes both pieces of legislation, they have not sued to block the anti-trans athletes’ law in Arkansas. The reason is that no one in Arkansas has publicly come forward to claim injury. Once someone does, expect the ACLU to sue. They recently sued the state of Tennessee over a similar law, convinced federal court in West Virginia to stop a similar law in that state, as they also did in Idaho.
There is still time to file an amicus brief for the case in Arkansas regarding the banning of gender-affirming care for trans youth. It’s Brandt v. Rutledge.
When asked what people can do, Holly Dickson, executive director of the ACLU of Arkansas, says the first thing is that people make themselves aware of these kinds of threats occurring in their own states, and opposing them. “We should keep on standing up for equality,” she says. In terms of Arkansas, awareness is a start, “Conversations about how trans youth are being treated by politicians, and in opposition to these harmful, bullying bills.” Regarding visiting Arkansas, she says, “if you’re spending money and time in Arkansas, make it known you oppose bills like this.”
I’ve been reaching out to people in Arkansas to ask what are the best ways outsiders can help affect change. What I found you can read about in my next article.
Your writing not only informs but also inspires, thank you.