By Howard Fischer - Capitol Media Services
PHOENIX -- Arizona state lawmakers are being asked to keep -- or at least those who are genetically identified as male -- off of high school and college sports teams for girls and women.The proposal by Rep. Nancy Barto, R-Phoenix, would require that all sports be designated as male, female or co-ed.
More to the point, HB 2706 would spell out in Arizona law that athletic teams or sports designated for women or girls "may not be open to students of the male sex.''
There is, however, no such companion language about girls wanting to play on boys' teams.
But Matt Sharp, an attorney with Alliance Defending Freedom, said that's does not amount to illegal discrimination,
He said that Title IX, the federal civil rights law designed to give women equal opportunities in sports, specifically spells out that they can participate in men's teams if there is no comparable team for women. Sharp said that means a women who wants to be on a football team is free to do that without undermining bans on those who, according to Barto's bill, are considered male.
The legislation sets up a three-part test if there is a dispute to determine a student's sex.
First would be the student's "internal and external reproductive anatomy.''
Then there is the question of the student's "normal endogenously produced levels of testosterone.'' That means the hormone naturally produced, not counting any therapies to increase or decrease levels.
Finally, any determination also would depend on "an analysis of the student's genetic makeup.''
All three would be considered.
George Khalaf, a political consultant to Barto, said the first two may fall into "gray areas,'' particularly when someone has surgery for gender reassignment.
"But the third one is pretty clear cut,'' he said.
"There no way, no matter what you do, your genetic makeup, your genetic test, is going to be one way or the other,'' Khalaf said. "As far as I understand, there's no way that hormonal treatments or what is medically available today would alter someone's genetic makeup.''
And he said that this law would apply even in cases of gender reassignment -- and even if state agencies, including the motor vehicle division, agree to alter the gender on someone's driver's license. In fact a spokesman for the state Motor Vehicle Divison said it does make such changes if there a a signed statement from a physician that the person "is irrevocably committed to the gender change process.''
The issue, Khalaf said, is one of fairness, particularly for women who may lack the same physical strength as men.
"Even if it somehow says you're a man, woman on your government documents and all that, everything's been reassigned, still, (there's) your body structure,'' Khalaf said.
"They can't take muscle,'' he said, even with changes in testosterone levels. "There are still innate strengths in me that you cannot reassign, you cannot make go away.''
And Khalaf said that, no matter what, "there are enough physical differences ... that it's creating an unfair advantage for these biological men.''
"There are still innate strengths in me that you cannot reassign, you cannot make go away." - George Khalaf, Political Consultant to Rep. Nancy Barto, R-Phoenix
There was no immediate response from the Human Rights Coalition.
But the Daily Caller reports that organization last year submitted a statement in support of federal legislation to force schools to allow male athletes who identify as women to compete on women's teams. That statement said it is not "rooted in fact'' that men are stronger and faster than women.
Khalaf said he knows of no such dispute in Arizona. But he said the rules of the Arizona Interscholastic Association which governs high school sports would seem to allow this kind of competition.
But there are disputes elsewhere, including a case being handled by Sharp's organization.
It involves three women on a track team at Bloomfield High School in Connecticut who are complaining to the U.S. Department of Education that their rights under Title IX -- the same law that lets women play on certain men's teams -- are being violated by a policy adopted by the Connecticut Interscholastic Athletic Conference that allows those who identify as women to play on women's teams.
"You're now taking away female opportunity,'' Sharp said.
"Now, rather than there being designated sports for them, places where they can just not compete but where they can win and get all the benefits from being successful in sports, they are losing those to these two guys,'' he said. Sharp said the new competitors have broken about a dozen records.
"There's been about 15, 16 track meets and championships that these two biological males have won,'' he said. "So it ultimately boils down to that the equal opportunities that Title IX is supposed to provide to women are being taken away as a result of these policies.''
Sharp acknowledged that the use of genetic tests may not be perfect, saying there are medical conditions that result in people being born with unusual chromosome patterns.
"We recognize that there are students that have a disorder of sexual development or an intersex condition,'' he said.
"We want to show compassion for them and recognize just because you have one of these conditions doesn't mean you aren't a female and can't play on sports,'' Sharp explained. He said that's where the other parts of the three-pronged test come in.
"You're going to look at what is their anatomy, what is their testosterone levels,'' Sharp said.
He said that gender is not always a perfect test for sports competition. But Sharp said it's no different than setting up sports so that youngsters of a particular age compete against others in the same age group, and those of a particular weight class compete against others of the same size.
"There's going to be guys that are slower than your average girl and girls that could beat a lot of the guys,'' he said. "But this is the best way to create a level playing field that's been working for decades.''
No date has been set for a hearing on the bill which has 22 other Republican House members as cosponsors.
On Twitter: @azcapmedia
