The West Virginia House of Delegates passed 78-20 Thursday a ban on transgender middle- and high-school students playing on sports teams matching their gender identity.
The bill (House Bill 3293) now heads to the state Senate, which is also controlled by a Republican supermajority. Thursday’s vote came despite Democrats noting there were no known issues with this in West Virginia, and despite their impassioned speeches.
“For those of you that are going to vote green because you really think it’s a problem, you know, I pray for you to find wisdom, and someday realize that this isn’t an issue,” said Delegate Mike Pushkin, D-Kanawha.
Pushkin said he thinks the majority of support for the bill was out of “political expediency” by those who know it isn’t an issue. To those people, he said, “I’m going to pray for you that you find half the courage of these children that you’re alienating today and you vote red and you vote this mean-spirited bill down.”
Delegate Barbara Evans Fleischauer, D-Monongalia, was the last Democrat to speak Thursday.
“My daughter is different, my daughter plays sports, my daughter is beautiful, my daughter is intelligent, and she has left this state,” Fleischauer said. “And it is this kind of bill that will ensure that she will never come back.”
“Please don’t pass this bill. You are demonizing little children and you are demonizing my baby,” she said.
Four of the House’s 23 Democrats — Mick Bates, D-Raleigh; Brent Boggs, D-Braxton; Nathan Brown, D-Mingo; and Dave Pethtel, D-Wetzel — voted for the bill.
Only one of the 77 Republicans voted against the bill: Delegate Josh Higginbotham, R-Putnam. Delegates Roy Cooper, R-Summers, and Brandon Steele, R-Raleigh, were absent.
“As we think about this, instead of feeling about it, we need to realize that there are innate physiological advantages for males, and that’s why we have unisex sports,” said Delegate Chris Phillips, R-Barbour.
Phillips said the bill would protect kids who “work incredibly hard to get their spot on the team, to get their playing time on the court and, for many of them, to get a college scholarship.”
Delegate Roger Conley, R-Wood, read from the Bible.
He then said “to believe that there is a man that thinks they should be a woman, or a woman that thinks they should be a man, is saying that my God made a mistake. And I’ve got news for all of you: My God does not make a mistake.”
The ban would apply only to sports under the supervision of the West Virginia Secondary Schools Activities Commission (SSAC), which includes public schools broadly and some major private schools, such as Charleston Catholic. The bill is unclear, though, on whether it affects all schools in the SSAC, or just the public schools.
Co-ed sports would not be affected.
In order to participate in a sport, the bill says a student must present an “original” birth certificate showing their birth sex or a “signed physician’s statement indicating the pupil’s sex based solely on the pupil’s unaltered internal and external reproductive anatomy.”
“I didn’t come to Charleston to legalize or legitimize unwanted childhood sexual assault,” said Delegate Joey Garcia, D-Marion. “That is what this is, it is absolutely what this is along with a psychological attack, an emotional attack on some of our most vulnerable people in the state of West Virginia.”
About half of transgender teen boys have attempted suicide at least once, according to a 2019 study in Pediatrics, the journal of the American Academy of Pediatrics. Garcia noted transgender children in general have high suicide attempt rates.
“I did not come to Charleston to take any action that would make it more likely that anybody who is considering whether or not this life is worth living anymore, to push them over the edge,” he said.
The legality of the bill could be in question because of federal-level decisions on transgender rights, according to the American Civil Liberties Union of West Virginia.
A 2020 ruling from the U.S. Fourth Circuit Court of Appeals, which covers West Virginia, upheld transgender students’ rights to use bathrooms matching their gender identity. It is unclear whether those rights could extend to sports access.
The Fourth Circuit’s ruling has been appealed to the U.S. Supreme Court. Earlier in 2020, the Supreme Court ruled that firing someone for being gay or transgender violated part of the federal law called Title VII.
The ACLU and Delegate Chad Lovejoy, D-Cabell, have cited these court rulings in saying the bill could also violate Title IX, which bans sex discrimination in sports. They say that may jeopardize federal funding.
Furthermore, President Joe Biden has issued an executive order supporting transgender rights.
Bernie Dolan, executive director of the SSAC, said that, currently, eligibility to play on single-sex teams is based on whichever sex a school labels a student in the West Virginia Education Information System, or WVEIS.