On Monday, March 22, 2021, Representatives Brody, McElraft, Wheatley, and Dixon introduced House Bill (HB) 358, Save Women's Sports Act

On Monday, March 22, 2021, Representatives Brody, McElraft, Wheatley, and Dixon introduced House Bill (HB) 358, Save Women's Sports Act, in order to:

“…protect the opportunities for women and girls in athletics by ensuring women are not forced to compete against men playing on women’s sports teams.”

In introducing this bill, the Representatives provide, among other things:

• There are ‘inherent differences" between men and women.
• These differences ought to cause celebration and not provide for the denigration of the members of either sex or place artificial constraints on an individual's opportunity.
• These "inherent differences" range from chromosomal and hormonal differences to physiological differences.
• Men generally have "denser, stronger bones, tendons, and ligaments" and "larger hearts, greater lung volume per body mass, a higher red blood cell count, and higher hemoglobin."
• Men also have higher natural levels of testosterone, which affects traits such as hemoglobin levels, body fat content, the storage and use of carbohydrates, and the development of Type 2 muscle fibers, all of which result in men being able to generate higher speed and power during physical activity.
• The biological differences between females and males, especially as they relate to natural levels of testosterone "explain the male and female secondary sex characteristics, which develop during puberty and have lifelong effects, including those most important for success in sport: categorically different strength, speed, and endurance."
• While classifications based on sex are generally disfavored, the United States Supreme Court has recognized that "[s]ex classifications may be used to compensate women for particular economic disabilities [they have] suffered, to promote equal employment opportunity, [and] to advance full development of the talent and capacities of our Nation's people." United States v. Virginia, 518 U.S. 515, 533 (1996).
• One place where sex classifications allow for the "full development of the talent and capacities of our Nation's people" is in the context of sports and athletics.
• Courts have recognized that the inherent, physiological differences between males and females result in different athletic capabilities.
• Girls are not similarly situated as they enter athletic against boys in competition, which leads to unfair competition.

Therefore, HB 358 requires “all athletic teams for middle and secondary school students participating in interscholastic or intramural athletic activities conducted by a public-school unit [to] be expressly designated as one of the following based on biological sex”:

(1) Males, men, or boys.

(2) Females, women, or girls.

(3) Coed or mixed.

Moreover:

• Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.
• Sex shall be recognized based solely on a person's reproductive biology and genetics at birth.
• No governmental entity, licensing or accrediting organization, or athletic association or organization shall consider a complaint, open an investigation, or take an adverse action against a school or public-school unit for maintaining separate athletic teams or sports for students of the female sex in accordance with this Article. ***

North Carolina is one of twenty-eight (28) States to consider a bill preventing biological males/transgendered women from competing against girls on the athletic field.  Three States (Arkansas, Idaho, and Mississippi) have enacted similar bans, but face legal challenges.  South Dakota’s Governor was presented a bill for signature, but did not sign it even though she had expressed support for it in the past. 

If H.R. 5, the Equality Act, is passed by the Senate (the House of Representatives has already passed it) and signed by President Biden, North Carolina may be precluded from passage of HB 358 or implementing its provisions even if passed.  Don’t forget, H.R. 5 also allows biological males/transgendered women to enter and use women’s bathrooms, showers, and changing rooms with the girls whose team they are on!

*** It is unclear if this prohibition can succeed a legal challenge in court.

I hope this is of value!

Demetria Carter