BISMARCK —North Dakota senators on Monday, March 29, converted a bill to restrict the participation of transgender girls in K-12 sports into a study, blunting the lightning rod legislation before it advanced out of the chamber.
Senate Bill 1298 would have restricted the participation of transgender girls in high school and lower school sports, but Senate lawmakers substantially watered it down after members from both sides of the aisle warned of the possibility for expensive litigation. The bill had built traction among many of the state's conservative lawmakers and cleared the House chamber easily earlier this session.
Monday's change, which came in an amendment introduced by Sen. Kristin Roers, R-Fargo, converted the bill into a study, a tool often used by lawmakers to nullify the impacts of legislation. The amended version advanced out of the Senate on a 32-15 vote, leaving the fate of a North Dakota transgender athlete ban in question as members of the House will get another crack at it later this session.
"I fear it will only lead to litigation," said Roers, who cited a federal ruling that blocked the implementation of a similar bill in Idaho last year and noted that the proposal would conflict with the existing policy of the North Dakota High School Activities Association. The NDHSAA has opposed the bill.
"My question is who would pay for that?" asked Roers. "Is it the individual school that is sued? The activities association? The state of North Dakota? Where would that money come from for that suit?"
Roers' amendment, which was adopted in an anonymous vote, would require the Legislature to study the economic ramifications for state and local tourism, the consequences for the state's relationship with regional and national athletic organizations, the possibility for litigation and the impacts of such a policy for students' behavioral health.
Sen. Janne Myrdal, a sponsor on the bill, pushed against her colleagues' hesitation over lawsuits. "We need to recall that every law that we pass on this floor can be litigated," said Myrdal, R-Edinburg. "And we have been threatened by litigation so many times on these kind of issues that I think it's about time that we rise above it and do the right thing."
But many opponents of the proposal have argued that it would be a step backward for North Dakota that could have dangerous mental health consequences for LGBTQ students. Sen. JoNell Bakke, D-Grand Forks, a former teacher, urged her colleagues to consider the perspective of transitioning youth and called the bill "just one more" discriminatory policy — "one that won't be overlooked by many outside North Dakota and many within our state."
The scope of the bill had already been narrowed on the Senate side to apply strictly to K-12 sports after many opponents warned that earlier provisions restricting college athletics would ensure federal lawsuits and possibly lead to punitive action from organizations like the NCAA, which has long allowed collegiate transgender athletes to compete under their identifying gender.
North Dakota's transgender athlete bill is part of a national flood of legislation that would restrict or bar the participation of transgender athletes. Twenty-five states have taken up legislation this year that would restrict the participation of transgender youth in state-sponsored sports leagues, according to the ACLU, and governors in Mississippi, Tennessee and Arkansas have signed their states' versions of the legislation in recent weeks.
In neighboring South Dakota, Gov. Kristi Noem, who emerged as a Republican hero in the COVID-19 pandemic, has found herself in hot water with social conservatives after initially tweeting her enthusiasm to sign a ban on the participation of transgender girls in female sports leagues before changing course. Citing the probability of lawsuits, Noem sent the bill back to lawmakers for changes.
LGBTQ advocacy groups spoke in favor of the Senate's move to dilute the bill on Monday.
"We appreciate the Senate's reasonable position to seek more information and answer the endless list of questions and unintended consequences brought forward by individuals and organizations who opposed the bill," said the North Dakota Human Rights Coalition, in a statement. "The Senate chose more information over codifying discrimination, and for that, we are grateful."
The bill now goes back to the House, where an earlier version passed by a 39-vote margin, to work out disagreements with the upper chamber.
Jeremy Turley contributed reporting to this story.
Readers can reach Forum reporter Adam Willis, a Report for America corps member, at email@example.com.