Transgender college sports policy passed after court blockade • Daily Montanan

Gov. Greg Gianforte penned a letter Wednesday urging the Board of Regents to ban transgender youth from participating in collegiate school sports after the Montana Supreme Court blocked lawmakers from making such policy decisions.

“While I disagree with the court’s analysis, it leaves the Board of Regents free to enact policies to protect girls and women at Montana’s colleges and universities,” Gianforte said.

Gianforte called on regents to implement the stalled bill's guidelines in House Bill 112 of the 2021 legislative session and to “join him in calling on the National Collegiate Athletics Association to ensure fair competition for women and girls in women's sports.”

The NCAA has implemented guidelines requiring transgender athletes to document hormone levels during their senior year of school. A spokesman for the Board of Regents said it is reviewing Gianforte's application and expects to have an “ongoing discussion” on Title IX with the governor and stakeholders.

The governor's letter is the latest attempt to align Montana with a nationwide right-wing push to bar transgender students from participating in school sports. The American Medical Association said efforts to regulate the participation of transgender athletes are “largely inconsistent with international human rights norms and standards.”

The Republican majority Legislature passed House Bill 112 during the 2021 legislative session, sponsored by then-Rep. John Fuller, R-Kalispell, when Fuller served in the House.

The bill, called the Save Women's Sports Act, which was found unconstitutional, sought to bar transgender women in public K-12 schools and publicly funded higher education institutions from participating on female sports teams. The bill was one of dozens of similar bills across the country aimed at restricting transgender participation in sports.

The Montana legislation faced opposition from organizations such as the Montana Human Rights Network and the Montana ACLU. More than 200 women in college sports have signed a letter opposing the bill, and 300 Montana businesses have also signed a letter opposing the bill.

The Montana Supreme Court last month found the law unconstitutional because it applies to colleges and universities, saying policies governing college athletics are the purview of regents, not the Legislature.

In response, Gianforte called on the regents to implement the law changes.

“This misguided ruling by the Montana Supreme Court removes important protections for female athletes on our college and university campuses and allows biological men to compete against them,” Gianforte said. “This is unacceptable.”

The governor called on the regents to join his call for the NCAA to adopt policies similar to HB 112 and “guarantee fair competition for women and girls in women's sports.”

The NCAA has already implemented guidelines for transgender athletes to document testosterone levels before championship selection, first announcing the change in 2022. Transgender athletes must document testosterone levels at the start of their season, six months after, and four weeks after before championship selection.

The NCAA oversees championships at the collegiate level and helps create rules and guidelines for the 26 sports it lists on its website, including football, basketball and gymnastics. Montana State University and the University of Montana both offer NCAA athletic programs.

Montana University System sports comply with either NCAA regulations or National Association of Intercollegiate Athletics regulations, depending on campus membership, as well as any athletic conference rules as outlined in a Regents Policy Manual.

Gianforte urged regents not to let a vocal minority stop them from doing the right thing for girls and young women.

Higher Education Commissioner's Office spokeswoman Leanne Kurtz said in an emailed statement Friday that Commissioner Clay Christian and the Board of Regents are reviewing Gianforte's application.

“They are interested in working with the governor to review his request and how it might impact college sports,” Kurtz said. “We anticipate an ongoing discussion about Title IX with the governor and other stakeholders. If scheduled for a future board meeting, it will be posted with the agenda and properly noted.”

The Board of Regents is an independent seven-member body that has full constitutional authority to oversee Montana's public university system. Regents are appointed by the governor and confirmed by the Senate.

The geneticist Dr. Eric Vilian, director of the Center for Genetic Medicine Research at Children's National Health System, told National Public Radio last year that there was no data to support the argument that transgender athletes have an unfair advantage over their cisgender competitors.

Montana is one of four states suing the federal government over a recent update to Title IX that expands protections against sex discrimination to include gender identity and sexual orientation. The change is expected to take place next school year.