After Arkansas governor Asa Hutchinson signed a bill that would ban transgendered women and girls from school sports teams consistent with their gender identity, the race director of the 2022 UCI Cyclo-cross World Cup and World Championships in Fayetteville, Arkansas, Brook Watts, issued a public statement decrying the law and appealed to fans not to boycott the events.
"The decision made by Gov Hutchinson to sign SB-354, a bill that bans transgender women and girls from participating in sports consistent with their gender identity is discriminatory and hateful," Watts wrote in an open letter.
The Arkansas legislature passed what it called the "Fairness in Women's Sport Act" ostensibly to protect biological female athletes from competition from transgender athletes who might benefit from higher natural levels of testosterone. The bill applies not only to public schools and universities but also to any private institution or club that would compete against a public school.
The bill also allows girls who are 'deprived of an athletic opportunity', or suffer direct or indirect harm, to sue institutions that refuse to comply with the ban.
However, the law is already sparking a backlash. More than 500 college athletes have signed a letter asking the NCAA Board of Governors to refuse to schedule championships in states that have banned transgender participation in sports.
"We call upon you to ensure that the NCAA lives up to the guidelines and standards that they claim to uphold by making a firm statement that you will uphold the NCAA Anti-Discrimination Policy and only operate championships and events in states that promote an inclusive atmosphere," the letter says.
A boycott by the NCAA could spark a larger exodus of events from Arkansas, as happened in North Carolina in 2016, when the state passed a controversial 'bathroom bill' to prohibit transgendered individuals from using public facilities according to their gender identity. That law sparked a huge backlash that led numerous organisations including the NCAA and NBA to cancel events in the state, costing it billions of dollars in revenue.
The threat of a similar boycott in Arkansas would unfairly hurt a supportive cycling community, Watts says. The World Cup in scheduled to run on October 13, 2021 and Worlds from January 29-30, 2022.
"I understand those who feel the need to boycott this event in light of this legislation - I share your anger toward this blatant discrimination. However, I encourage you to think of the community that has worked to make this event happen and instead, take action in another way," Watts said. "Consider donating to one of the many organizations in Arkansas that are fighting to make the state inclusive for transgender, non-binary and gender non-conforming individuals such as the Fayetteville Trans Equality Network or the ACLU.
"This bigotry and harm on the part of the Governor and the state legislature completely contradicts the community I've gotten to know in the past 36 months as race organizer contracted by the City of Fayetteville. The community of Fayetteville that I know is one that is accepting and affirming to all genders. This community - the local racers, hard-working local businesses, race personnel and hundreds of volunteers, have worked incredibly hard to put this event on, and we owe it to them to see it through to fruition in Fayetteville."
The legislation is part of a larger and highly nuanced discussion on how to promote gender equality between men and women while simultaneously incorporating LGBTQ rights, one that is tied in with recent rulings on employment discrimination.
The Arkansas bill is just one of many under consideration in US state legislatures, and North Carolina is just one state considering following suit. However, Democratic opponents expressed confidence that the actions would be deemed unconstitutional under Title IX, which prohibits discrimination based on sex.
"I think it's pretty clear under Title IX that this law will violate Title IX. And that's based on an opinion written by Neil Gorsuch last year," Sen. Clarke Tucker, (D-Little Rock) said to NPR. "In that opinion, they ruled that the Federal Civil Rights Act said that it is impossible to discriminate against someone based on their gender identity or their sexual orientation without discriminating against them on the basis of sex."
In 2017, the Trump administration rolled back Obama-era guidance that included gender identity in Title IX protections, but in 2020, the US Supreme Court redefined its interpretation of sex discrimination to encompass sexual orientation and gender identity under Title VII, the Civil Rights Act that prohibits employment discrimination.
The decision led to fears of legal challenges to Title IX, which has been critical in furthering the growth of women's collegiate sports, that could undermine gender-separated housing and sports teams and lead to a 'slippery slope' that would wipe out women's sport.
18-time Grand Slam winner Martina Navratilova is one of several high-level athletes to argue against the inclusion of gender identity in equality legislation. According to the Independent Women's Forum, Navratilova said "sex segregation is the only way to achieve equality for girls and women".
The group argues that having biological males who may benefit from natural hormones to have a sporting advantage competing for limited positions in teams designated for females, "female athletes will lose to male-bodied athletes most of the time", and says, "this is not equal opportunity. This is male dominance".
However, Navratilova's comments led the openly gay athlete to be dropped by advocate organisation Athlete Ally, who argued, "Trans women athletes aren't looking to take over women's sport. They are women, and want to compete in the sport they love, just as any other athlete would."
The UCI and IOC's solution to fairness in allowing transgender athletes to participate in sport according to their gender identity requires trans women to keep their testosterone levels to a threshold of 5nmol/L while the IOC allows 10nmol/L.
"As cycling’s world governing body, the Union Cycliste Internationale (UCI) recognises the right of transgender athletes to participate in events on the UCI International Calendar," the UCI said in a statement.
"In 2020, the UCI adopted new directives in its regulations, in line with the consensus adopted by other International Federations, which updates the eligibility rules for transgender athletes to the latest scientific knowledge.
"The new regulation aims to encourage transgender athletes to compete in the category corresponding to their new gender, while guaranteeing a level playing field for all athletes in the competitions in question.
"The UCI regrets the adoption by the State of Arkansas of legislation banning transgender athletes from participating in school sports competitions, which has no justification on medical grounds, nor when it comes to sporting fairness, and must therefore be qualified as discriminating
"The UCI is in contact with USA Cycling to understand the implications on cycling events of the law adopted by Arkansas, and will continue to follow the situation.”
