This commentary is by Scott Skinner-Thompson, a professor of law at the University of Colorado Boulder’s Colorado Law School. The views expressed here are his own.
Thirty-four years ago, Colorado earned itself the moniker “the Hate State” after voters approved Amendment 2, which barred the state and cities from adopting any law that might protect lesbian, gay, or bisexual Coloradans. Fortunately, in 1996, the U.S. Supreme Court concluded that Amendment 2 was motivated by impermissible animus toward sexual minorities and struck down the law as unconstitutional. Colorado has come a long way since then by enacting significant protections for LGBTQ individuals.
But in ballots already arriving in voters’ mailboxes, Coloradans will once again be asked whether we are a state of inclusion that values all people, or a community of exclusion. Specifically, voters are being asked to sanction state interference with the ability of transgender youth and their parents to make life-saving medical decisions and to further shame those same children by excluding them from participating in sports. Voters should reject each of these propositions and not return us to the Hate State.
Much like a law prohibiting a woman from exercising bodily autonomy by having an abortion, Proposition 135 interferes with individuals’ authority — together with their parents and medical providers — to determine what healthcare is needed. Make no mistake, under established standards of care, surgical interventions for transgender youth are infrequently medically indicated, and most transgender youth do not need or desire surgical interventions (meaning there is no huge “problem” to solve in the first instance).
But when such interventions are needed by young people in order to live consistently with their identity as only they can know it and avoid the harm that can accompany gender dysphoria, the proposed law would substitute the judgment of the state for that of the individual, their parents and their doctors. This huge infringement on individual liberty is reason enough to reject the proposition. But Proposition 135 is also problematic in that it singles out a group of youth for special legal targeting and judgment, much like Amendment 2 before it.
Proposition 134 doubles down on that social stigmatization of transgender youth, barring all youth — even elementary school students — from participating on athletic teams that do not correspond to the reproductive cells the students produce. In addition to excluding vulnerable transgender youth from sports participation that, as we know, is important for physical and mental health, the law potentially subjects all students to invasive verification procedures that violate their privacy.
If a student is suspected of participating on a team inconsistent with the reproductive cells the student produces, how are schools supposed to verify that? Voters should not subject children to a system that would scrutinize their bodies and subject them to “identity by committee.”
Of course, protecting the ability of cisgender female youth to compete is also of vital importance. But the proposed law does not define “sex” in a way that is determinative of athletic ability. The ability to produce sperm or ova is several steps removed from what often matters most in athletic competition: training, agility, muscle development and the like.
That is, even among adults, the range of physical differences within any sex category is far broader than the average differences between males and females. As Olympic gold medal runner Caster Semenya puts it, “there are plenty of men with typical male testosterone levels who can only dream of beating a female athlete with typical female levels.”
Moreover, even if there are isolated examples of trans females outcompeting all cis females in a given activity, there is no widespread problem to solve, meaning that, as with the ban on gender-affirming care, the proposition is a solution in search of a problem and an overstated rationale for discrimination. Finally, the proposed law ignores that many people beautifully complicate the gender binary, potentially excluding intersex people from participation.
Colorado is at a critical juncture. It can go back in time and reinvigorate its reputation as the Hate State, or it can continue its recent trajectory of valuing all people, even if they are different. Let’s move forward, not back.
