photo by: Sherman Smith/Kansas Reflector

Sen. Renee Erickson, a Wichita Republican, is sponsoring legislation to require K-12 and college athletes to participate based on gender at birth.

TOPEKA — Sen. Renee Erickson is advocating passage of a bill by the Kansas Legislature to forbid individuals declared male at birth who later transitioned to female from participating in women’s sports programs at the elementary, high school and college levels.

Erickson, a Wichita Republican and retired school principal, is sponsor of the Fairness in Women’s Sports Act. It was the lawmaker’s response to an executive order issued by President Joe Biden declaring administration policy was to support equal treatment under the law and prevent discrimination on the basis of gender identity or sexual orientation. Biden’s order also says children should be able to learn without “worrying about whether they will be denied access to the restroom, the locker room or school sports.”

“The purpose is to ensure fairness and opportunities for women competing in sports,” Erickson said.

Last year, lawmakers in Kansas and more than a dozen states introduced bills crafted to base eligibility for organized athletic events on a person’s gender assignment at birth. A Kansan in the U.S. Senate introduced comparable federal legislation related to sports and gender identity. Meanwhile, four Kansas House members last week sponsored a bill creating the felony crime of providing medical services to transgender children.

Thomas Witt, executive director of Equality Kansas, said the bill proposed by Erickson appeared philosophically bound to a measure introduced in 2020 by Wichita GOP Rep. Michael Capps, who sought to mandate Kansas high schools rely on a student’s gender at birth to determine eligibility for interscholastic activities.

“Capps didn’t have the best interests of children at heart,” Witt said. “I think Senator Erickson is following in Michael Capps’ tradition.”

Capps didn’t get his bill out of a House committee in 2020, perhaps due to COVID-19 abbreviating the session, and he wasn’t around the Capitol to reintroduce it in 2021.

In August, Capps lost his primary election race and left office in January. He’s embroiled in a scandal involving attempts to discredit Brandon Whipple, who was elected Wichita mayor, and for engaging in a conspiracy with other elected officials to mislead the public about attacks on Whipple.

Level playing field

Brittany Jones, advocacy director for the Family Policy Alliance of Kansas, said legislation was necessary because adherence to Biden’s executive order would deny women opportunities to compete in sports on an equal footing. The concern is an individual could be declared a boy at birth, undergo transition to a girl and distort athletic competitions by participating as a female. Public outcry about the president’s approach is contributing to movement in at least nine states to enact legislation tied to gender identity in sports, she said.

“Every girl growing up in America deserves the opportunity to play sports,” Jones said. “We know that sports teach athletes leadership, discipline and a host of other life lessons beyond the medals and scholarships that can be earned. We have worked too hard to see these opportunities for women stripped away. We need to ensure that women have a level playing field.”

Erickson’s bill would apply to interscholastic, intercollegiate, intramural or club athletic teams or sports sponsored by a public elementary or secondary school, a higher education institution or any school whose students or teams competed against a public school or postsecondary educational institution.

It would require programs to designate teams based on biological categories of males, men and boys or of females, women and girls or, in the alternative, as members of coed or mixed teams. The bill specifies teams designated for females, women and girls “shall not be open to students of the male sex.”

Verification of a person’s biological sex under the proposed Kansas law could be accomplished through examination by a health care provider of the student’s reproductive anatomy, genetic makeup or testosterone level.

Under Erickson’s bill, any student deprived of an athletic opportunity or who suffered harm as a result of violation of the statute could file a lawsuit to seek financial relief from the educational institution. Actions filed within two years of the alleged harm would be eligible for damages related to psychological, emotional or physical harm.

The bill was drafted to statutorily affirm “inherent differences between men and women,” that men had “denser, stronger bones, tendons and ligaments” and “larger hearts, greater lung volume per body mass, a higher red blood cell count” useful for speed, strength and endurance during physical activity.

It would acknowledge courts conclude “physiological differences between males and females result in different athletic capabilities.” It would note a study of Olympic performance showing athletes of both sexes improved since 1983, but maintenance of a gender gap suggested “women’s performances at the high level will never match those of men.”

Marshall’s approach

U.S. Sens. Roger Marshall and Mike Lee, both Republicans, introduced federal legislation last week to prohibit federally funded colleges and universities from allowing biological men who identified as women to be on women’s sports teams. The Protection of Women and Girls in Sports Act would declare a person’s sex would be determined “solely on a person’s reproductive biology and genetics at birth.”

The NCAA allows transgender women to compete on women’s teams as long as the individual had been receiving hormone treatment for at least one year.

Marshall, a Great Bend obstetrician who was on the track team at Butler Community College, said it was wrong to allow biological boys to compete against biological girls in athletic competition. He said it was neither equal nor fair and served to render the playing field physically unequal.

“I want every person, regardless of sex, to have access to opportunity, but this move by the Biden administration shows no common sense and will bring about the destruction of women’s sports,” the Kansas senator said.

On Newsmax, he added: “I’ve not met an American yet that thinks it’s right for a genetic boy, a person with a Y chromosome, to compete against girls.”

Marshall, who replaced retired U.S. Sen. Pat Roberts in January, raised questions about the president’s executive order at a recent Senate Health, Education, Labor and Pensions Committee hearing with Miguel Cardona, the nominee for secretary of the U.S. Department of Education.

“There’s nothing American about letting people with a Y chromosome compete against women,” Marshall said.

Cardona, who has been commissioner of education in Connecticut since 2019, said he understood the U.S. Supreme Court ruled that people were protected from discrimination based on gender identity.

“We have to make sure we’re honoring our students,” Cardona said. “I recognize this is not easy and I respect the perspective of people that feel differently.”

— Tim Carpenter is a reporter for Kansas Reflector.