SB 263 – On Schools, Suing, and Sex Segregated Sports.

Testimony delivered by Christopher Jay, attorney with Cornerstone Action. For more information, please visit www.nhcornerstone.org.

New Hampshire has recently lurched into the murky and chaotic area of legislation driven by a desire to re-create human sexuality. The latest example is SB 263 which specifically lists “gender identity” and other categories as protected classes.

This act is misleadingly entitled “An act relative to anti-discrimination protection for students in public schools” (emphasis added). No one wants invidious discrimination in schools.  But as is often the case, few look beyond the innocent facade to examine what these words are masking.

This bill includes sex and gender identity as protected categories, meaning that schools are prohibited from making any distinctions on the basis of sex or gender identity.  What effect would this have on sex-segregated school sports? As with many proposed laws in our state, there is a rush to enact with very minimum discussion or thought, so the effect is worth noting.

Enacted in 1972, Title IX prohibits discrimination based on sex in schools. However, Title IX has been interpreted to mean that schools can discriminate on the basis of sex if there is sufficient reason, but schools are required to have “equal” sports opportunities for men and women, including equitable funding, facilities, etc. Presumably, SB 263 would be interpreted in line with Title IX – allowing sex-segregation provided that there is equal opportunity for all sexes.

If Title IX is applied, and schools are required to provide equal funding for the two sexes, male-sports and female-sports, why would they not also be required under SB263 to do the same for each self-defined gender category? Must they, for example, create a “gender” league if a student so identifies? And if not – why not? Is agender less valuable under the law than male or female? Why or why not?

Furthermore, if one argues that one needs a “critical mass” before a sports team is created, then the question remains: are we discriminating against “agenders” because they are a minority gender? As far as the constitutionality of such a move, Grutter v. Bollinger (2003) suggests that schools may use a “critical mass” criteria to create more diversity (in that case, for admissions and race), but seems to imply that a school could not use a “critical mass” criteria to restrict diversity.

Let’s look at other potential consequences of this apparently simple bill:

-Since the bill “protects” persons generally (not just students), anybody of any age could enroll in any class or publicly sponsored activity, if application procedures were properly followed.

-There is no minimum age limit on “gender identity.” Given this legal definition, a first-grade student could sue a school for misgendering them or failing to respect that child’s gender expression (as well as causing that teacher to lose his job).

-This bill subjects schools to sometimes impossible and often self-contradicting requirements as a MN school district recently found out when trying to accommodate a girl swimming on the boys’ team.

-This bill is not an anti-bullying measure, since it only applies to schools, not students. It would not prevent student-to-student mistreatment, unless the school were to promote or endorse prohibited behavior.

-This bill requires school sports teams to allow students to compete on any team of their choosing, so long as that choice is related to “gender identity.”  Since there is no test for gender identity beyond self identification, what happens to long-established competition and testing standards based on the physical differences between the sexes? Will biological females be permanently disenfranchised in certain sports?

If passed, SB 263 would sow more chaos than protection. The bill is offers a counterfeit compassion to those who are truly struggling with gender dysphoria; an unsustainable short-term solution to a valid long-term problem. We can treat our children and our society better.