A bill that is currently making its way through the Michigan state Senate would ban transgender students from playing school sport on teams that align with their gender identity. Introduced by Sen. Lana Theis (R-Brighton) in March, Senate Bill 218 mimics two dozen similar ones introduced in other states as of late. A committee hearing was held on May 25.
"Clearly it's discriminatory," said Jay Kaplan, staff attorney for the ACLU of Michigan's LGBT Project. "It targets transgender youth to deny them the opportunity provided to every other student and it's based on myths and mistruth in regards to transgender kids participating in high school sports."
Kaplan said the bill is based on false assumptions about transgender girls taking away opportunities from cisgender girls and/or that they have a competitive advantage.
"That's not borne out in actual facts and information. Athletic ability depends on the individual, it depends on the sport, it depends on many, many factors, and trans athletes have been participating in [school] sports as far as we know for almost two decades," he said. "This is a solution looking for a problem."
Kaplan added that the best way to improve conditions for girls in sports is to put more money and resources into programming for them, not by attacking transgender students.
Not only that, excluding trans youth as this bill dictates could further marginalize this population, which is already at increased risk for depression, suicidal ideation and suicide attempts, according to Dr. Maureen Connolly, who treats transgender adolescents and who testified at the hearing.
Also opposed to the bill is Sen. Dayna Polehanki (D-Livonia) who sits on the Education and Career Readiness Committee. Like Kaplan, she called it "a solution in search of a problem" and referenced similar legislation making its way across the country.
"Not only is it cruel, it's unnecessary," Polehanki said. "The bill's sponsor evidently couldn't find anyone from Michigan to testify … but she brought in a slew of people from all over the country. It seems to me that these are "circuit testifiers" that go from state to state in this kind of cookie-cutter legislation that's being handed down. And our state legislators obediently pick it up, and their marching orders are to hold hearings … and they don't know Michigan. They didn't even pretend to know Michigan."
The Michigan High School Athletic Association has had a plan for years, Polehanki said, whereby an individual student can apply to play on a team that aligns with their gender identity. She referred to the procedure as seamless, and further, pointed out that the MHSAA opposes this sort of legislation.
"I don't think that my GOP colleagues have the best interest of our transgender children at heart," Polehanki said. "However, they claim to be fighting for girls in sports. Girls assigned female at birth. However, it you're thinking of like a female kicker on the boys' football team, or a boy cheerleader on the girls' cheer squad, this will also kick them off. And there's about 800 of those children also who would be affected by this ridiculous and cruel law."
Polehanki knows this from more than observation as a lawmaker. A high school English teacher for more than 20 years, she also served for several of those years as co-advisor of a "Diversity Club." In her experience, she said, most trans kids "just wanted to walk down the halls and be accepted."
Both Kaplan and Polehanki believe what's likely behind this is an attempt to "stir up the base" ahead of the 2022 elections.
"In the most cynical sense, this is a political move," Kaplan said. "Some of the folks behind this are politically conservative on social issues … and they've decided that his is an important tactic for political purposes. It helps them raise money for the political party and they've decided they're gonna go with this tactic."
At the hearings, it was pointed out that there's only been eight self-identified transgender students playing in high school interscholastic sports, Kaplan said. He added that goes to show this is hardly a problem plaguing school sports in the state.
Beyond the bill being a partisan political move, it reflects a misunderstanding and mischaracterization of what it means to be transgender.
"To refer to a transgender girl as a male body is simply incorrect," Kaplan said. "And it's a dehumanizing way of looking at a young transgender person."
Kaplan explained that the law would violate Title IX, which prohibits discrimination on the basis of sex in educational opportunities, including sports, because the Supreme Court ruled in the Bostock decision last year that sex discrimination includes discrimination on the basis of transgender status.
In addition, the law would violate the 14th Amendment Equal Protection Clause, because it wouldn't survive the scrutiny whereby evidence would be required to demonstrate that transgender girls have an unfair competitive advantage or that the existence of transgender girls in sports takes away opportunities from cisgender girls.
At this point, Kaplan said he was unaware of whether more hearings or when an eventual vote may be held.
"Our hope is that it doesn't go anywhere," Kaplan said. "It's wrong, it's flawed, it's cruel. We're fortunate that we live in a state with a governor who would not support something like this and sees it for what it is. Other states are not that fortunate. The worst circumstance is if it became a law, the ACLU and I'm sure other organizations would bring legal challenges. And we would win."
Polehanki suggested that those who wish to weigh in on the issue contact Sen. Theis, who chairs the education committee. Because she is the chair, her office will take note of calls beyond those exclusively from her constituents. Individuals may call their own state Senator as well. Phone is preferable to email. Callers should refer to Senate Bill 218.
"If they have a Republican senator, it would be very beneficial for them to call whoever it is," Polehanki said. "And it makes a difference."
Find Michigan state Senate contact information here: senate.michigan.gov.
