Statement & FAQs – Segregation of School Sports by Sex

HB 4042/SB 29 in Regular Session, HB 25/SB 3 in 3rd Called Session of 87th Legislature

Contents

On April 20, 2021, LCR Texas offered the following testimony at the Texas State capitol regarding Texas House Bill 4042 (and SB 29), and issued a public statement. We understand the highly sensitive and emotionally-charged nature for persons on both sides of this issue, and understand why so many choose to evade the questions increasingly being brought to the public square. Therefore, we strongly believe in the need to fully and carefully address every serious question or concern raised regarding this issue.

The following policy position was adopted unanimously by the representatives of all LCR chapters in Texas.[1

Log Cabin Republicans of Texas supports House Bill 4042, and its companion Senate Bill 29 [UPDATE: includes subsequent bills in Called Sessions, currently HB 25 and SB 3 in the 3rd C.S.]. While we may have reservations about the bills’ lack of nuance allowing schools latitude to address very unique situations, and about the issues it leaves unresolved that will certainly arise if this bill becomes law,[2] we nonetheless believe this law takes a necessary step in protecting interscholastic athletic activities that are currently segregated by biological sex for the benefit and safety of both girls and boys.[3]

There is a reason why Title IX was added to the Education Act of 1972, to specifically exempt segregation by sex in sports from the broader prohibitions against discriminatory segregation found elsewhere in the act.[4] This was based then on the widespread recognition of the scientific reality of two sexes[5] with significant and consequential physical differences, a reality recognized throughout history by every culture, and repeatedly confirmed by modern science.[6]  This allowance for sports segregation by ‘sex’ has always been understood as biological sex.  The reason for the division of sports between girls and boys, and not some other criteria based on cultural difference, religious beliefs, or any other kind of social identification, was plain and simple: the two sexes are physically built very differently, from the cosmetic level down to the chromosomal level.  These differences are easily evident from statistics of events at all levels, from high schools to the Olympics, where the different levels of performance between the two sexes are plainly evident (save for where biological males are allowed to compete against females).[7]

Erasing the distinction in sports based on sex, and replacing it with a distinction based merely on a personal declaration, turns on its head the very purpose of having separate athletics for boys and girls, not to mention men and women, and would harm nearly all girls looking to compete in sports, and potentially also many young boys competing against a person under a steady regimen of testosterone – though that is yet to be determined.  Aside from scholarships, erasing the biological distinctions could also affect young biological girls’ perception of their future role in athletics, with many potential ramifications for women down the line.

Truly transsexual individuals deserve our compassion and understanding, and the equal protection and affirmation of all their due rights under our US and Texas constitutions, just as any human being with a set of circumstances that vary from the general norm,[8] and we at LCR Texas are determined to find ways to affirm and protect those rights.  But, this cannot mean we have to sacrifice the rights also due to all young women who are not trans.

Therefore, we will stand with the many friends and allies who have long supported and stood with us at LCR Texas in our mission that includes the advance and protection of the rights of trans people, and support along with them this step towards the return to common sense.

ADDITIONAL NOTES/FAQs – Updated 4-22-21; 2:15 PM CDST

We at LCR for decades have explained to the world that being gay or bisexual is not a choice.  We do not challenge nature or the science of our biology, nor millennia of human history’s distinctions and separations of the two sexes. We are not now going to say that how you were born can now be ‘changed,’ and everything regarding sex and gender is simply a ‘choice.’

We do believe that truly transsexual or transgender individuals, individuals with very specific set of uncommon circumstances that science is still only beginning to understand, are human beings that should treated with equal rights under our laws just as all persons, including those that vary from norms in different ways, and should be protected from unfair discrimination in housing, employment, and provided fair access to public accommodations as defined in the original Civil Rights Act of 1964 for the last 56 years (NOT the Equality Act, which is opposed by LCR at the national level and in Texas).

As questions are posed to us, we will be posting our answers on this page. Questions may be made to 713-380-1607 or emailed to chairman@logcabintexas.us.

QUESTIONS ANSWERED

Won’t passing this bill cause economic harm to Texas? Posted 4-20-21; 5:20 PM CDST.

We recognize concerns or even threats of boycotts and economic impact to our state by large corporations.  However, we object on principle and on a practical basis to surrendering the right of Texans to define their own laws to unelected corporate executives.  In addition, it’s worth noting the report by the Texas Young Republicans released in 2017 debunking the substance of the Texas Association of Business arguments of corporate threats on similar matters: “The Human Rights Campaign is a powerful and highly active left-progressive organization that is currently heavily invested on driving a very specific agenda, …in the TAB ‘report’, it is cited as a source for what constitutes anti-‘LGBT’, without explaining what that really means.”  A column authored by the now current LCR Texas chairman Marco Roberts and now current Texas GOP General Counsel Susanna Dokupil, published in 2019 in the Texas Tribune, provided similar evidence: “The Greater Houston Partnership similarly warned that repeal of the Houston Equal Rights Ordinance [which was positioned by the Left and the media as ‘pro-LGBT’], or HERO, in 2015 would spell doom for Houston’s businesses, but as Texas Monthly reported, the impact was ‘nothing, nada, zilch.'” (You can search for ‘Texas Young Republicans TAB Report’, or ‘Texas Tribune Protecting Freedom and Business).[9]

https://texasyr.gop/news/texas-young-republicans-respond-tabktob-report-economic-impact-discrimination-legislation-texas/

https://www.tribtalk.org/2019/05/20/protecting-freedom-and-protecting-business/

Why do you say ‘unfair’ discrimination? Posted 4-20-21; 5:25 PM CDST.

‘Discrimination’ merely means discernment of difference.  The law provides for many kinds of lawful ‘discrimination’ as with the two sexes when allowing separate, segregated sports or changing facilities.  It allows for favorable discrimination in some cases, as with persons with disabilities or military veterans qualifying for benefits or treatment not available to the general population, hence, our reference to unfair or illegal discrimination. In the current debate, the issue is NOT the elimination or imposition of discrimination, but rather the replacement of discrimination/segregation by sex to discrimination/segregation by self-declaration of gender identity.

In response to the reference made to the famed trans athlete Rene Richards, the first male to female trans person to be allowed to compete as a woman in women’s teams. Posted 4-20-21; 5:54 PM CDST.

Rene Richards reversed her position on transwomen being allowed to compete against other women, quoted on Slate.com on October 25, 2012:

“Having lived for the past 30 years, I know if I’d had surgery at the age of 22, and then at 24 went on the tour, no genetic woman in the world would have been able to come close to me. And so I’ve reconsidered my opinion.” She added, “There is one thing that a transsexual woman unfortunately cannot expect to be allowed to do, and that is to play professional sports in her chosen field. She can get married, live as woman, do all of those other things, and no one should ever be allowed to take them away from her. But this limitation—that’s just life. I know because I lived it.”

Why do you refer to transsexuals? Posted 4-22-21; 2:40 PM CDST.

From a 2015 study published online by the National Center for Biotechnology Information under the National Institutes of Health:

“Since the 1990’s the word transgender has been used primarily as an umbrella term to describe those people who defy societal expectations and assumptions regarding gender (e.g., Lev, 2004; American Psychological Association, 2009a). It includes people who are transsexual and intersex, but also those who identify outside the female/male binary and those whose gender expression and behavior differs from social expectations. As in the case of sexual orientation, people perceived or described by others as transgender – including transsexual men and women – may identify in various ways (e.g., Pinto and Moleiro, 2015).”

‘Transgender’ therefore is not the most accurate and precise word to explain what the issue is in this case. We are not referring to persons who merely do not conform to social expectations to a specific gender or sex, yet do not identify with the opposite sex, but still consider themselves transgender. Therefore, while it is true that most persons who identify as trans prefer the term ‘transgender’ to the older term ‘transsexual’, and the term ‘transsexual’ does not always apply to transgender, there are those who are transsexual who do prefer the term transsexual to the term transgender, and this is the most accurate and precise term for this policy discussion. In purely social circumstances, care should be taken to avoid offense, and to use words that make others in our presence most comfortable. However, in policy discussions, clarity and accuracy in words is important, regardless of political interests that may favor obfuscation.

Equality Texas claims HB 4042 would “ban transgender” youth from participating in school sports. Is that True? Posted 4-24-21; 11:35 PM CDST

It is not true. HB 4042 only preserves the current policies already in place in most schools in Texas, though challenged in other states. There are trans youth participating in school sports today in Texas. HB 4042 does not “ban” anyone from participating in school sports. It only defines the terms of permissible segregation of school sports as primarily between two sexes, with some exceptions. That essentially means segregation of sports by race, ethnicity, religion, or gender identity is not permitted – not that anyone is banned. While we acknowledge some deficiencies in HB 4042, we maintain it is far better than the chaos that has been brought to school sports in other states.

END NOTES 

[1] Houston, Dallas, San Antonio and Austin.

[2] Example-bill does not address what to do with a transboy (a biological girl identifying as a boy who is on a regimen of male hormones that would make competing with other girls an equally problematic situation.  It does not address how to accommodate children that do experience a legitimately diagnosed, deep-seated gender dysphoria.  It does not address how to account for new developments in science.  These are some examples.  How to address?  That is a sensitive and complex subject that LCR Texas is ready and willing to take on in a different forum.

[3] Various studies, including one by the US Marines completed in 2016 in its assessment on the consequences on integration of the female sex into combat units found that female bones break more easily, in addition to susceptibility to other injuries .

[4] Federal law as passed by Congress, in Title IX of the Education Act of 1972, allows (but does not require) segregation of bathrooms, locker rooms, and such, as well as team sports, by “sex” (it does not refer to ‘gender’ or ‘gender-identity’).  In Title IX, discriminatory segregation based on sex is permitted under the CRA, as detailed in the Code of Federal Regulations (CFR) Title 34, Subtitle B, Section 106.33 (toilets, locker rooms, and shower facilities) and in Section 106.41 (team sports, and contact sports). Court rulings have ignored it, or have reinterpreted ‘sex’ to mean ‘gender identity.’

[5] The existence of intersexuals (statistically rare persons with both male and female sexual characteristics) does not contradict, but rather affirms the reality of two opposite sexes.

[6] National Institute of Mental Health – July 20, 2020 • Press Release -A scientific analysis of more than 2,000 brain scans found evidence for highly reproducible sex differences in the volume of certain regions in the human brain. This pattern of sex-based differences in brain volume corresponds with patterns of sex-chromosome gene expression observed in postmortem samples from the brain’s cortex, suggesting that sex chromosomes may play a role in the development or maintenance of sex differences in brain anatomy. The study, led by researchers at the National Institute of Mental Health (NIMH), part of the National Institutes of Health, is published in Proceedings of the National Academy of Sciences.

[7] Differences in winning records between males and females are beginning to disappear in locations where biological males are allowed to compete against biological females, where the biological males easily defeat all biological females and set new records and future female students have little chance of breaking.  Two transgender athletes (male to female) —Terry Miller and Andraya Yearwood —amassed all 15 different Connecticut state championship titles in 2019 that were once held by nine different girls across the state.

[8] Persons who are hearing or sight impaired, persons with absence of pigment in the skin, person who are unusually tall or short.  With each of these, accommodations can and should be made, but we do not deny everyone else access to say, movies or radios, or activities in the sun, simply because these cannot be equally enjoyed by persons with highly uncommon situations.

[9] The Texas Young Republicans note that the TAB report arguing economic boycotts (and others like it) is actually backed by left-wing progressive groups.  The Texas Tribune article notes additional stats.

RESPONSE TO FALSE ARGUMENTS PRESENTED AT OCTOBER 6 COMMITTEE HEARING – Updated 10-14-21; 4:00 AM CDST

Thursday, October 14, House Bill 25 will go to the floor of the Texas House for debate. Log Cabin Republicans of Texas is in support of HB 25, as we stated in our October 6, statement (at bottom).  We committed in that statement to provide full responses to all the main arguments presented. Below them you will find our statement of October 6, and links to more information.

THE ARGUMENTS

KIDS IN CRISIS

FALSE Argument: A 150% increase in calls from LGBTQ+ Texas kids in crisis.

RESPONSE: This stat says nothing. First, it is self-reported by an institution with a stated ideological agenda. Second, it does not say what the calls are for, nor for what period of time, nor explores possible causes, such as the increasing number of children (mostly girls) identifying as trans growing exponentially [in the UK, Gender Identity Development Service (GIDS) reports up to nearly 1000% in six years (2010-2016) – see, we provide a timeframe, and a source].

THREAT OF SUICIDE

FALSE Argument: That is what the Trevor Project, an LGBTQ+ crisis hotline, has reported from Texas kids who have stated that “they are feeling stressed, using self-harm, and considering suicide due to anti-LGBTQ laws being debated in their state.”

RESPONSE: The Trevor Project is open about its political agenda, and self-reports and self-assessments are the least reliable in the medical profession. There is simply no scientific evidence showing the reliability of the numbers, nor causation. Further, “anti-LGBT” is completely subjective, and can include just about any law not to the progressive Left’s liking. Lastly, the argument that suicides will come from an open and free debate over laws considered by duly elected representatives of the people is a twisted attempt at emotional blackmail of a representative democracy.

EXCLUSION FROM PARTICIPATION

FALSE Argument: House Bill 25 is unnecessary, damaging legislation that is designed to exclude transgender students from participation in normal school activities, like sports.

RESPONSE: House Bill 25 does NOT exclude any child from participation in in any school activities simply by virtue of the student’s self-reported gender identification. This is the most frequently repeated lie, and it is an absolute, and complete falsehood.

GAY BASHING

FALSE Argument: In 2019, LGBTQ+ Texans and those who love them were so grateful when you said that you were “done talking about bashing on the gay community.” Your voice gave hope to so many of us.

RESPONSE: This issue has nothing to do with gay people, and there are vocal gay and trans people, and allies who support them, that support HB 25 and do not see it as “bashing anyone.” Log Cabin Republicans of Texas has made that clear.

KIDS DISTURBED BY LAWMAKERS

FALSE Argument: For 10 months now, transgender kids have listened to lawmakers claiming that they are an inherent danger to their peers, that they are duplicitous, and that they are a “problem” that needs to be solved. They have pleaded for their own dignity in front of those very same lawmakers and watched, heartbroken, as bills continued to be filed and to move anyway.

RESPONSE: We know of no lawmaker making any statements of the kind, certainly not the sponsors who have been careful and respectful in their language. But even if some irresponsible outlier made such comments, the purpose of this unsubstantiated charge is to distract from the actual contents of the bill, which is to preserve in Texas the original purpose in Title IX of the federal Education Amendments of 1972.

NO NEED DEFINED

FALSE Argument: In all the debate on this issue, supporters of the bill, including bill authors, have failed to come up with even a single Texas example for why this bill is needed.

RESPONSE: The issue is coming up with greater frequency in Texas schools asking for guidance, and has already caused turmoil in other states, for which examples were provided. The question before us is, should segregation of sports be permissible by sex, as original intended by Title IX for the purposes of protecting girls’ and women’s’ sports from competition from males, or should segregation terms be changed to be permissible only by a self declaration of gender identity? WITHOUT input from the public or its elected representatives, those that support the latter are deciding this question gradually via ‘fait accompli’ actions. HB 25 puts a stop to that, and this is why it is so violently opposed.

KIDS UNDER ATTACK BY LEGISLATURE

FALSE Argument: Meanwhile, this endless debate places our most vulnerable – our kids – under constant attack from the Texas legislature. Across the state, the rhetoric from these legislative attacks has embedded itself into these kids’ daily lives. In the past year, there has been a dramatic increase both in number and severity of anti-LGBTQ+ incidents across the state – including in some cases, literal “gay bashing” that has put kids in the hospital.

RESPONSE: Kids are not “under attack” by virtue of the legislature conducting the business of the people. That parents choose to involve their very young children in complex and difficult matters is not under the control of the legislature. As for “increase both in number and severity of anti-LGBTQ+ incidents across the state,” there is no reputable objective substantiation for this, and here we don’t even have a definition of what qualifies as “incidents.” At some college campuses, merely laughing while looking at someone, or using a pronoun not preferred by a person, qualify as an act of “hate” or bias, and would be a reported ‘incident.’ During the hearing last Wednesday, Rep. Rafael Anchia made a big issue citing a recent murder in Fort Worth as evidence of rising anti-trans violence. EXCEPT the police made clear there was NO evidence the victim was targeted for that reason. In fact, so far, of the five cases in Texas (where many non-trans people are also murdered), there has been no evidence any of them were a result of targeting of trans people.

TEXANS SUPPORT ‘LGBT’

FALSE Argument: Over 70% of Texans support nondiscrimination laws for LGBTQ+ people and almost 300 Texans registered against HB25 in the last committee hearing on October 6th – six times more than those who showed up in favor of it.

RESPONSE: Texans respond favorably to any question that simply asks if gay and trans people should be treated fairly and justly. BUT, the answer changes when you specifically ask if a person who is biologically a boy should be allowed to compete against girls. In that scenario, the answers change dramatically. That shows Texans can see the difference between promoting Gender Ideology, which is hostile to notions of difference between male vs. female (except – in contradiction – when it comes to trans people), and simply being fair and reasonable with everyone.

CONSTITUTIONAL FRAMEWORK

FALSE Argument: Court decisions have already set a framework that makes HB 25 clearly unconstitutional, particularly in the wake of Bostock vs. Clayton County.

RESPONSE: While it is true that activist judges have been turning words inside out, so that clear references in the law that permit segregation by sex under certain circumstances are now interpreted to forbid that same segregation, the Supreme Court did NOT indicate that the new, strictly literal interpretation of the word ‘sex,’ in Title VII of the Civil Rights Act, relating to employment, would mean the elimination of the same definition of the word ‘sex,’ in Title IX of the Education Amendments of 1972, which is very different in purpose. Unlike Title VII of the Civil Rights Act, Title IX and supporting regulation explicitly allow segregation (discrimination) by sex, which is not permitted elsewhere, for the purpose of protecting women in sports, and accounting for the consequential biological differences between the sexes.

TEXAS BUSINESS

FALSE Argument: Texas Competes says that their study shows Texas businesses will leave Texas if HB 25 passes.

RESPONSE: Texas Competes is composed largely of woke corporations that do not reside in Texas. Its study, like the one the Texas Association of Business pushed in 2015 to defend Houston’s ordinance attempting to enforce Gender Ideology, is entirely speculation based on absolutely no hard science. In fact, the TAB report, partly funded by agenda-driven organizations, turned out to be flat wrong in its prediction that Houston would lose business if its citizens rejected the so-called “pro-LGBT” ordinance. The citizens voted almost 2 to 1 to reject the city council’s effort to impose Gender Ideology, even as they elected a liberal black mayor, and after electing a gay mayor three times in a row. NO businesses or people left as a result. It is also worth noting, that in the years since, as California has been accelerating its woke, falsely called “pro-LGBT” policies (that are in fact, Gender Ideology), and as Texas has started hitting the brakes on the same, California has started to lose people, actually losing population for the first time in 2019. And, where did many people leaving California go? To Texas.

THE FINAL ARGUMENT

Equality Texas has urged its followers to use its automated forms to urge the Speaker to kill the bill. We have a different message:

Speaker Phelan, we urge you to do everything in your power respect science, religious concerns, the original intent of the law, fairness for women, and the will of the people, which all happen to converge on this bill. Please protect the education, sports opportunities, and lives of ALL Texas children.