On Thursday, Gov. Asa Hutchinson (R-Ark.) signed S.B. 354, the “Fairness in Women’s Sports Act,” making Arkansas the third state to enshrine protections for fairness in women’s sports into law. Idaho became the first state to do so last year, although a federal judge suspended the law last August. Gov. Tate Reeves (R-Miss.) signed a similar law earlier this month. Gov. Kristi Noem (R-S.D.) said she would sign a similar law, but she issued a “style and form” veto last Friday, instead.
“This law simply says that female athletes should not have to compete in a sport against a student of the male sex when the sport is designed for women’s competition,” Hutchinson said in a statement announcing he had signed S.B. 354. “As I have stated previously, I agree with the intention of this law. This will help promote and maintain fairness in women’s sporting events.”
S.B. 354 cites various scientific sources on the inherent biological advantages males enjoy over females in most kinds of sport. As Neel Burton explained in Psychology Today, males generally have “denser, stronger bones, tendons, and ligaments,” and “larger hearts, greater lung volume per body mass, a higher red blood cell count, and higher hemoglobin.” Dorian Lambelet Coleman also wrote that males “have higher natural levels of testosterone, which affects traits such as hemoglobin levels, body fat content, the storage and use of carbohydrates, and the development of type 2 muscle fibers, all of which result in men being able to generate higher speed and power during physical activity.”
Even when gender-confused males take so-called “puberty blockers” or cross-sex hormones, those pharmacological interventions do not erase the natural benefits that testosterone provides to male athletes, the law argues. It cites a study published in The Journal of Clinical Endocrinology & Metabolism that concluded that “even after 12 months of hormonal therapy,” a man who identifies as a woman and is taking cross-sex hormones “had an absolute advantage” over female athletes and “will still likely have performance benefits” over women.
S.B. 354 mandates that elementary schools, secondary schools, and colleges designate sports according to biological sex as “male,” “men’s,” or “boys’;” “female,” “women’s,” or “girls’;” and “coed” or “mixed.” The law explicitly states that “an interscholastic, intercollegiate, intramural, or club athletic team or sport that is expressly designated for females, women, or girls shall not be open to students of the male sex.”
The law protects schools and school staff that follow this rule, enables students who suffer harm from violations of the rule to sue in court, and gives schools a cause of action against “the state government entity, licensing or accrediting organization, or athletic association or organization” if they face repercussions for following this rule.
If the National Collegiate Athletic Association (NCAA) decides to expel Arkansas schools from its ranks, it appears that S.B. 354 would give those schools a right to sue the NCAA for injunctive relief, damages, and attorney’s fees.
“Women and girls deserve to compete on a level playing field, and Gov. Hutchinson and the Arkansas Legislature have acted to ensure that happens for all female athletes in the state, whether in high school or college. It’s unfair to force women and girls to compete in sports against males,” Kristen Waggoner, general counsel at Alliance Defending Freedom (ADF), said in a statement.
ADF represents girls who have been forced to compete against males. The law firm is also defending Idaho’s law against an ACLU lawsuit that led to a federal injunction.
“We commend the governor and state lawmakers for standing up to the corporate interests and activists who have been pressuring them to cave to a ‘woke’ agenda at the expense of women and girls,” Waggoner added. She noted that S.B. 354 “provides female athletes with legal recourse if their rights are violated. That’s vital because allowing males to compete in girls’ sports destroys fair competition and women’s athletic opportunities—the very things that Title IX was designed to protect in federal law.”
“When we ignore science and biological reality, female athletes lose medals, podium spots, public recognition, and opportunities to compete. We thank Gov. Hutchinson and Arkansas legislators for recognizing that and helping to protect a rising generation of young women so they can continue to pursue their dreams,” Waggoner concluded.
More states are considering similar laws to protect fairness in women’s sports, and ADF has worked to build a coalition on this effort.
When Noem refused to sign the South Dakota bill, she claimed that she needed to build a coalition first, in order to outwit the NCAA and corporate activists who may boycott South Dakota. Considering the fact that governors in Idaho, Mississippi, and Arkansas have already signed such bills into law, Noem would help the cause better by signing the bill in front of her and banding together with these three other states.
Republicans control the legislature and the governor’s mansion in 23 states, so GOP state leaders need to pass bills on women’s sports one by one, so that the NCAA cannot afford to act against all of them. President Joe Biden’s executive orders championing transgenderism may already threaten these state laws, but it is important for Republicans to defend fairness in women’s sports.
Americans instinctively grasp the unfairness of allowing males to compete against females, whatever their declared identities. The Democratic Party has abandoned sanity on this issue, and the GOP needs to call them on it.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.