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Indiana lawmakers override governor’s veto of transgender sports ban

When he vetoed the bill in March, Republican Governor Eric Holcomb said there was no evidence that school sports leagues were harmed by transgender girls' participation.

(CN) — The GOP-dominated Indiana Legislature forced the passage of a bill targeting transgender student-athletes in a one-day technical session on Tuesday, overriding a March veto by Republican Governor Eric Holcomb.

The bill, known as HEA 1041, bars transgender girls - assigned male at birth but who identify as girls - from participating in K - 12 girls' sports teams.

The Indiana House voted 67-28 to overturn the veto and the Senate confirmed 32-15 on Tuesday afternoon.

Besides banning transgender girls from playing on student sports teams, HEA 1041 also compels public and private schools in Indiana to create a "grievance procedure" by July 1 this year, when the new law takes effect.

Through the procedure, any school found to be allowing transgender girls to participate on girls' sports teams can be hit with civil litigation and a fine of up to $1,000. Likewise, it shields schools that block transgender girls' participation from civil rights suits.

Holcomb vetoed the bill in March after it passed through both houses of the Indiana General Assembly, partly over objections to the grievance procedure.

“First, as to process, the wide-open nature of the grievance provisions in HEA 1041 that apply to all K-12 schools in Indiana makes it unclear about how consistency and fairness will be maintained for parents and students across different counties and school districts…Meaning, student-athletes could be treated differently according to which school they attend and compete for,” the governor wrote in a letter accompanying his veto.

Holcomb also said that the bill was a solution looking for a problem. The bill's proponents hold that when children who are born male play on girls' teams, they give their teams an unfair advantage over those composed entirely of cisgender girls - those born biologically female. But while the state's total youth population was north of 1.5 million in 2020, the Indiana Youth Institute found only about 3,350 Hoosiers aged 13 to 17 identified as transgender. An even smaller fraction identify as binary transgender girls, and only a fraction of that fraction would be enrolled in girls' sports teams.

The National Library of Medicine also found in 2013 that less than 1% of K-12 student athletes of any gender identity go on to compete at any elite level.

“The presumption of the policy laid out in [the bill] is that there is an existing problem in K-12 sports in Indiana that requires further state government intervention. It implies that the goals of consistency and fairness in competitive female sports are not currently being met. After thorough review, I find no evidence to support either claim even if I support the overall goal,” Holcomb wrote in March.

Holcomb defended his opposition to the bill in a statement Tuesday.

“My position hasn’t changed. There remains zero cases and the process, which is managed by IHSAA, is working. I stand behind my decision to veto HB 1041," he said.

Republican state Representatives Chris Jeter and Michelle Davis, the bill's co-authors, are nevertheless ideologically committed to HEA 1041. Jeter pledged in March to whip the votes necessary to overturn Holcomb's veto.

On Tuesday, Davis said the bill would "ensure the integrity" of girls' sports.

"The purpose of this legislation is to ensure the integrity of girls' sports, now and in the future," she said. Besides her comments, no debate on the issue was held before the vote.

In the state Senate, where there was a floor debate, Republican Senator Stacey Donato also spoke in favor of the bill. She waved off Holcomb's objections as irrelevant to the spirit of the bill.

"This bill is about protecting fair competition, whether there are one or 100 cases," Donato said.

Several Democratic state senators, who like in the House are outnumbered by Republicans by more than 3 to 1, offered their own counter-arguments advocating for the rights of transgender students.

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"Children just want to play sports with their friends," Senate Minority Leader Greg Taylor said, echoing the governor's concerns that HEA 1041 was just chasing shadows. He said barring students from playing sports on the teams where they feel most comfortable in their own skin would do them further harm in already uncertain times.

"Children right now, because of the pandemic, are already dealing with mental health issues we've never seen in this country's history," Taylor said.

Civil rights groups such as the Indiana ACLU also supported Holcomb's veto, rejecting the logic that gender is the main determining factor of a student's athletic performance.

“Trans youth vary in athletic ability, just like cisgender youth. Every kid has a range of different physical characteristics varying in size, strength and athletic ability," the group said in March.

On Tuesday, the ACLU also called denying transgender girls the ability to play on sports teams that align with their gender identity a form of "blatant discrimination" and an attempt by conservative lawmakers to strip LGBTQ individuals of their rights.

"Banning transgender girls from participating in school sports is Indiana's latest attempt to prevent transgender people from living full and equal public lives. [HEA] 1041 will single out trans girls for further exclusion by preventing them from participating in sports with their peers," the group said.

Only hours after state lawmakers voted to overturn the veto, the ACLU announced it was filing a federal lawsuit against Indianapolis Public Schools on behalf of a 10-year-old transgender girl who wants to play on her school's girls’ softball team.

"The new law, which would go into effect July 1, 2022, would deny A.M. the right to rejoin her team because she is a transgender girl...  Not allowing her to do so in the fall would be a painful, constant reminder that she is not accepted by the world as the girl that she is," a release accompanying the suit said. 

Kenneth Falk, Legal Director for the ACLU of Indiana, said that a victory in A.M's case could prove a basis for challenging HEA 1041 as a whole.

"In order for us to prevail, the judge has to find the law unconstitutional, at least in that case," Falk said.

HEA 1041 is one of a number of anti-LGBTQ bills that have passed through conservative state assemblies in the past several months, including in Oklahoma, Texas and Utah. A total of 17 states, now including Indiana, have laws on the books banning transgender students from participating in sports teams consistent with their gender identity.

It's part of an even larger recent trend of reactionary emboldening across the country, from several states' public school bans on books dealing with issues of sexuality and racism, to Florida's Stop WOKE Act that bars instruction on racial and gender oppression in schools and workplaces, to multiple states' plans to institute abortion bans once the U.S. Supreme Court hands down its now-presumptive reversal of Roe v. Wade.

The rightward shift even has some Republicans uneasy. Like Holcomb, Republican Utah Governor Spencer Cox vetoed a bill banning transgender girls from playing on girls' sports teams this March.

Indiana Democratic Senator J.D. Ford quoted Cox during Tuesday's debate on the Senate floor to highlight this unease.

"Four kids and only one of them playing girls sports. That's what all of this is about. Four kids [in Utah] who aren't dominating or winning trophies or taking scholarships," Ford said, quoting Cox. "Four kids who are just trying to find some friends and feel like they are a part of something. Four kids trying to get through each day. Rarely has so much fear and anger been directed at so few."

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