The North Dakota State Legislature is set to vote on a bill that backers say would protect gender equality in sports competition and that opponents claim is so discriminatory as to be unconstitutional.

The Senate Judiciary Committee must schedule a hearing date for testimony on the contents of House Bill 1298 after the House Human Services Committee recommended adoption and achieved a 65-26 do-pass vote on Feb. 11.

The bill prohibits state-funded institutions from sponsoring athletic teams, events, or facilities if competitors include “an individual who was assigned the opposite sex at birth” in sports considered “exclusively for males or exclusively for females.”

“This is bad for North Dakota because violation of federal law could cause the state to lose its federal funds for education, which in 2019 was more than $141 million. And this is not some empty threat.”

– The American Civil Liberty Union’s North Dakota Chapter

Rep. Kathy Skroch, who helped introduce it, said, “The purpose of this bill is to ensure fairness in girls’ sports.” Speaking before the House vote, she added, “It advocates for the preservation of the biological base standards for female sports competition.”

The bill stipulates that its gender definition is “based solely on an individual’s reproductive biology” as shown on a birth certificate, and as a result, excludes chosen gender identification as a criterion for participation. However, it does not define which sports are designated exclusive to boys or girls, nor does it reference the North Dakota High School Activities Association list of athletics opportunities.

The association’s list of boys’ sports covers baseball, basketball, cross country, golf, ice hockey, soccer, swimming and diving, tennis, track and field, and wrestling. Its list of girls’ sports covers basketball, cheerleading, cross country, golf, ice hockey, soccer, fastpitch softball, swimming and diving, tennis, track and field, gymnastics, and volleyball.

“The purpose of this bill is to ensure fairness in girls’ sports. It advocates for the preservation of the biological base standards for female sports competition.”

– Rep. Kathy Skroch, who helped introduce the bill

Rep. Josh Boschee, who opposed the bill, said he believes that its language would not only affect public institutions but also would stop private entities using state subsidies from allowing transgender athletes on their teams. Some supporters of the bill say that it is meant to be a state level supplement to Title IX, which prohibits sex-based discrimination in academics and athletics at schools that receive federal funding.

Detractors frame the bill as a flagrant violation of that law. They fear it may lead to lawsuits. Title IX of the Education Amendments Act of 1972 provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

The American Civil Liberty Union’s North Dakota Chapter wrote testimony in opposition to the bill. The organization said the legislation would be unconstitutional, violating not only Title IX provisions against sex discrimination, but also the 14th Amendment of the U.S. Constitution.

“Traditionally, Native people saw transgender people as two-spirited. That was something to honor and support until colonial settlers came.”

– Parent Paula Peters, a member of the Mashpee Wampanoag Tribe in Massachusetts

“This is bad for North Dakota because violation of federal law could cause the state to lose its federal funds for education, which in 2019 was more than $141 million. And this is not some empty threat,” the chapter said. In 2016, the Department of Justice sued North Carolina over a bill similar to HB 1298, it noted.

Rep. Lisa Meier, who helped introduce the bill, recalled how college athlete Craig Telfer scored 390th in men’s hurdles before a medical transition to womanhood: Then, renamed as Cecé, Telfer led the women’s hurdles 2019 competition in Kingsville, Texas, to become the first transgender woman to wina NCAA track and field championship.

During the hearing, bill supporters said that parents were the constituents most concerned regarding the participation of transgender students in school sports. Rep. Scott Louser claimed to have received an email from a parent in Minot who told him about how his daughter viewed a transgender peer using the girls’ bathroom at school.

The principal tried to make accommodations for that daughter, but she ended up leaving for a private school, Louser said.

“Some people are steadfast in what they think is a black and white issue. I’ll support my daughter in whatever sport or activity she wants to participate in.”

– Parent Paula Peters, a member of the Mashpee Wampanoag Tribe in Massachusetts

Not all parents feel the same way. Paula Peters is raising a young girl who was born a boy. In an interview, she told Buffalo’s Fire she believes that society, and especially those in Indigenous communities should be more accepting to transgender people. “Traditionally, Native people saw transgender people as two-spirited. That was something to honor and support until colonial settlers came,” she said.

A member of the Mashpee Wampanoag Tribe in Massachusetts, Peters said she believes that her child is lucky to discover what she wants and likes, and that the older a person gets, the more uncomfortable the transition can be. “Some people are steadfast in what they think is a black and white issue,” Peters said. “I’ll support my daughter in whatever sport or activity she wants to participate in.”

She told Buffalo’s Fire about her experience with the Mashpee Wampanoag Child Welfare Agency. Although some parents were concerned how their children would react to a transgender girl attending school, the agency was supportive of the child’s decision. Peters said most of the children at school don’t know that her daughter was born a boy and she hopes more people will be as accepting.

For information from the Indian Health Service, click here.

Christian Hustad is an Assiniboine tribal citizen and content creator. Contact him at cjhustad.94@gmail.com.