Transgender sports bill sees big opposition in first Senate hearing

In addition to a letter signed by more than 100 female athletes in Montana, dozens of students showed up in person to testify Wednesday against House Bill 112, which would limit transgender women’s ability to participate in sports.

“I know the joys of women’s sports. Teams that are family, finding confidence, building strength, and feeling beauty and movement, everyone including transgender people should have that,” said Lucy Hochschartner, an elite biathlete from Bozeman, during testimony.

After more than a month in dormancy, HB 112 resurfaced for a hearing in the Senate Judiciary on Wednesday. Akin to its hearing in the House, opponents vastly outweighed supporters.

The bill’s sponsor, Whitefish Republican Rep. John Fuller, said the measure is necessary to protect women’s sports and denied opponents’ claims that it is discriminatory. The bill easily passed in the House.

“[The bill] does not deny or restrict participation. All it asks is that you participate in the sex identified at birth, and that sex is scientifically undeniable,” he said.

But Hochschartner said the bill uses the idea that it saves women’s sports as a scapegoat for discrimination.

“HB 112 is trying to speak for me. There’s nothing worse than being spoken for, having the word stolen right out of your mouth, which is what the sponsor has tried to do to women athletes in Montana,” she said. “As female athletes, we’re horrified that the Montana legislature is trying to use us as an excuse for spreading hate.”

The bill was one of two heard Wednesday that would impact the transgender community and comes on the heels of a rally at the Capitol where demonstrators gathered to protest the legislation. The bills are part of a larger swath of Republican-backed legislation that critics say harms LGBTQ and transgender communities in Montana.

Legislatures across the country have seen a record 82 bills this year that the Human Rights Campaign said target transgender communities.

The economic impact on communities was another point of concern for opponents.

Last week, Clayton Christian, Montana’s higher education commissioner, said a football weekend brings from $5 to $10 million to communities.

Ali Bovingdon, chief legal counsel for the Commissioner’s Office, said she believes the bill would violate President Joe Biden’s executive order requiring gender identity and sexual orientation to be included under Title IX protections. If she is correct, the state is at risk of losing an estimated $350 million in federal funding, she said.

Pete Strom, a Bozeman tech entrepreneur, doubled down on the potential economic impact.

“The days before, during, and after football and basketball games are some of the most profitable days of the year and can be the difference for many small businesses,” he said.

He also referred to a statement by the Montana High Tech Business Alliance created by Gov. Greg Gianforte.

The statement reads that HB112 does “not reflect longstanding values for diversity, inclusion, and non-discrimination upheld by many of Montana’s leading technology businesses.” It adds, “these laws may lead to lost business, lost jobs, slower growth, and damage to Montana’s reputation as a safe and welcoming place to work.”

Numerous examples from across the country demonstrate the economic loss. The National Collegiate Athletic Association pulled March Madness games from North Carolina when it passed the “Bathroom Bill” and cost the state billions in revenue. It is estimated that Indiana lost out on $60 million in revenue after it passed Religious Freedom Restoration Act legislation, which LGBTQ advocates say allows for discrimination.

“I cannot tell you how to make Montana an economic powerhouse, but I can tell you how to make sure that major tech companies will not want to set up operations here: just pass anti-LGBTQ legislation,” Strom said.

Supporters of the bill worried that transgender women would take advantage of playing on cisgendered sports teams, leading to the downfall of women’s sports.

Kathy Carlson, a proponent of the bill, said she does not understand why transgender women want to play on the team they identify with: “Why do they want to be participating with females, and rather than in their own category … so that they have their own opportunity to compete against somebody that would be a true competition?”

Another proponent, Sharon Nason, said she was worried about transgender women taking advantage of the system.

“My concern is that a young man who isn’t doing as well as he would like to do as a member of a basketball team sees the advantage he might have if he competed on a woman’s team,” Nason said. “In our current culture, he would easily be able to identify as a female, and therefore then be allowed to participate in female sport.”

A 2011 report by the National Collegiate Athletic Association addressed that concern: “In the entire 40-year history of ‘sex verification’ procedures in international sports competitions, no instances of such ‘fraud’ have been revealed.”

Zooey Zephyr, a transgender woman, and other opponents said that the bill would cause transgender women to miss out on youth sports benefits like team and community building.

“I am the woman I am today, in large part thanks to the sports I played in my youth and the sports I continue to play in adulthood,” said Zephyr, a former college wrestler.

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The committee also heard testimony on House Bill 427 — a reincarnated and modified version of the failed House Bill 113.

HB427 would ban surgeries for treating minors experiencing gender dysphoria. Unlike HB113, it would not prohibit hormonal treatments such as puberty blockers.

Fuller sponsors both bills. He said HB427 is necessary to protect children’s health.

“Because [children] lack the maturity, prudence and experience to make safe and responsible decisions for themselves, when gender dysphoria is in the mix, these decisions can have a lifelong consequence,” he said.

But medical professionals overwhelmingly oppose the bill and say the legislation goes against best-practice industry guidelines.

“There are always unintended consequences to legislating complex medical care,” said Dr. Lauren Wilson, vice president of the Montana Chapter of the American Academy of Pediatrics.

Dr. Juanita Hodax, a pediatric endocrinologist who travels from Seattle to Missoula to provide for Montana’s youth, said the legislation is unnecessary: “These guidelines are clear, and it is extremely rare that these procedures would be done to youth.”

She added, “this legislation may have unintended consequences of preventing necessary genital surgeries in patients with complex disorders of sexual development or in transgender youth who require more common genital surgeries, unrelated to their gender dysphoria.”

In opposition to the bill, the ACLU of Montana raised constitutional concerns. Because the bill would allow surgeries like breast augmentation for non-transgender youth, but bar them for transgender youth, Laurel Hesse, a program manager for the ACLU Montana, said it would violate equal protection laws.

“The question is if these procedures are dangerous for youth, why are they available for some and not others?” Hesse asked. “This bill is not at all about protecting kids, but instead is driven by invidious purpose and bare desire to harm transgender people, that historically marginalized group who have been particularly targeted across the country.”

The bill would also violate doctors’ First Amendment rights by not allowing them to make referrals to transgender youth patients, Hesse argued. And it would violate Article II Section 10 of the Montana Constitution that provides patients a right to privacy with their healthcare provider to make medical decisions free from government interference, Hesse said.

Because of the bill’s enforcement policy, medical experts warned it would make it harder to recruit and maintain pediatricians in Montana. The bill gives patients the ability to file malpractice suits until they are 27-years-old — about three times longer than the liability period for any other procedure in Montana.

If found violating the conditions, medical providers could lose their license.

“Montana already has a shortage of pediatric specialists, and families of children with medical conditions often have to travel to multiple cities or out of state to receive the care they need,” Wilson said. “If we make it more difficult for pediatric specialists to practice by criminalizing procedures that they would perform on some children unrelated to transgender identity, we will harm our ability to provide the best care to Montana families.”