MORGANTOWN – The Senate Education Committee took up and approved on Thursday a very different version of the bill regarding transgender athletes.
HB 3293, as it came from the House of Delegates, would bar transgender athletes from participating on single-sex sports teams under jurisdiction of the Secondary Schools Activities Commission, such as boys and girls basketball or tennis. It would not affect sports where there are no alternatives, such as football, or co-educational sports.
It would require the county school district to verify the athlete’s sex at birth based on the student’s original birth certificate. If that is not available or does not indicate the student’s birth sex, the student would need to provide “a signed physician’s statement indicating the pupil’s sex based solely on the pupil’s unaltered internal and external reproductive anatomy.”
The Senate Education rewrite opens with a number of legislative findings regarding the inherent differences of biological males and females relative to sports, citing various court cases.
As one U.S. Supreme Court case determined, the bill says, “Gender identity is separate and distinct from biological sex to the extent that an individual’s biological sex is not determinative or indicative of the individual’s gender identity. Classifications based on gender identity serve no legitimate relationship to the State of West Virginia’s interest in promoting equal athletic opportunities for the female sex.”
It distinguishes athletic teams designated for males, men or boys from those for females, women or girls, and from those that are coed or mixed.
Its measures apply to secondary schools and college-level.
It says, “Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.”
It expressly does not bar anyone from participating in sports for males, men, boys, coed or mixed.
The committee rewrite removed the House language regarding birth certificates and physical exams. Committee counsel said the birth certificate requirement would be too burdensome for the schools and the students; and for those student who lacked one, the physical exam would be too invasive.
Two physicians who testified to the committee agreed that the exam required by the House would be invasive, not the typical exam performed for sports participation, and possibly psychologically harmful to some.
The original rewrite contained a clause allowing “any individual aggrieved by a violation of this section” to sue a school board for relief.
That caused some angst among some of the lawyers on the committee who saw it opening the door for any disgruntled parent or spectator. The committee recessed for the afternoon floor session and came back to another version that clarified the causes of actions for aggrieved individuals and schools that suffer harm because of a violation of the legislation.
The bill passed in a voice vote. No one voted no, though it wasn’t clear if everyone voted yes or if the opponents simply kept silent. It now heads to the Senate floor.
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