Well, one way to own the libs is to propose discriminatory transphobic legislation on the day Ruth Bader Ginsburg lies in repose. U.S. Senator and wealthiest member of Congress Kelly Loeffler (R-Ga.) seems determined to make good on characterizing herself as “more conservative than Atilla the Hun.”
It’s true. pic.twitter.com/Yea3phqB2s
— Kelly Loeffler (@KLoeffler) September 21, 2020
Loeffler, the co-owner of the WNBA’s Atlanta Dream, appears to be betting that the fear of transgender athletes in locker rooms will be just her ticket to a win in the upcoming special election. Loeffler, joined by Mike Lee (R-Utah), Marsha Blackburn (R-Tenn.), James Lankford (R-Okla.) and Tom Cotton (R-Ark.), introduced the Protection of Women and Girls in Sports Act on Tuesday, and it’s a doozy.
The bill proposes an amendment to Title IX (the federal law that guarantees protection from discrimination on the basis of sex in schools). The change would require addition of the following language:
For purposes of this subsection, sex shall be recognized based solely on a person’s reproductive biology and genetics at birth.
In other words, transgender athletes would be forced to play on the team that corresponds with their biological sex—as opposed to the team that corresponds with their gender identity. Or, perhaps more likely, they would be excluded from participating in sports altogether.
Proud to lead this effort in defense of women & girls.
Title IX established a fair chance for girls of all ages to compete—Sports should be no exception.@SenMikeLee @MarshaBlackburn @SenatorLankford @SenTomCotton & I are ensuring a level playing field. https://t.co/stG06XTW52
— Senator Kelly Loeffler (@SenatorLoeffler) September 22, 2020
Apart from the obvious – that this legislation reeks of harmful transphobic bigotry – there are some serious legal and practical flaws afoot as well. Enforcement of the bill would almost certainly result in gender discrimination.
I don’t expect Loeffler to understand that transgender women are women, who are entitled to the protections to which women are entitled under the law. But I do expect her to understand that it’s generally a no-no for legislation to treat men and women differently.
Everything from the bill’s name, to Loeffler’s explanation via press release, to the obvious de facto effects it would create singles out women. Loeffler called the measure a “commonsense bill” that “protects women and girls by safeguarding fairness and leveling the athletic field that Title IX guarantees.” But it doesn’t level any playing field; instead, it creates additional burdens for women, which is precisely what Title IX exists to prevent in the first place.
Conspicuously absent is any mention of any parallel need for this amendment to protect male athletes. If Loeffler’s logic is that transgender women athletes would have an unfair physical advantage, then the law is likely to be enforced only against transgender women (or against “biological males,” as Loeffler would call them). The converse – that the law would be enforced against transgender men who would allegedly suffer from the corresponding physical disadvantage – isn’t a likely scenario. Therefore, semantics aside, the reality is that the law, if adopted, would carry significant burdensome consequences for women athletes — including cisgender women — that it would not put upon their male counterparts.
Loeffler might want to check out RBG’s decision in the VMI case, because we don’t allow that. Here’s a helpful portion of the opinion:
“‘Inherent differences’ between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity…
But such classifications may not be used, as they once were … to create or perpetuate the legal, social, and economic inferiority of women.”
And let’s be clear. Justice Ginsburg was by no means a solo voice on gender discrimination. Trump-appointed Justice Neil Gorsuch recently penned a ruling that, at least within the context of employment, held that discriminating against transgender people equals discrimination on the basis of sex. Gorsuch’s words were clear:
“…it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
While the Court had been specifically addressing Title VII of the Civil Rights Act of 1964, Gorsuch’s opinion signaled no reason to believe the connection between gender identity and “sex” would differ under Title IX of the same law. Therefore, even if Loeffler’s proposal affected only transgender athletes, it would be an obvious no-go.
Unconstitutional gender discrimination aside, there’s also this: how, exactly, would Loeffler’s law be enforced? Will the girls field hockey team need to lift their skirts before taking the field? If so, in front of whom? Will the boys football team be required to show proof of penises?
What could possibly go wrong?
Loeffler’s introduction of the Protection of Women and Girls in Sports Act is the latest move in her strategy to one-up her conservative Republican challenger U.S. Rep. Doug Collins. Collins made headlines last week after responding to the news of Justice Ginsburg’s death with a tweet declaring, “RIP to the more than 30 million innocent babies that have been murdered during the decades that Ruth Bader Ginsburg defended pro-abortion laws.” So apparently, it’s a race to see who can most quickly dismantle RBG’s legacy.
Loeffler, the self-professed lover of all things athletic, has recently struggled to maintain any home field advantage of her own. After Loeffler spoke out against the Black Lives Matter movement, Atlanta Dream players began wearing shirts encouraging support for Loeffler’s Democratic opponent, Dr. Raphael G. Warnock.
The WNBA has also been supporting Warnock, as Loeffler owns part of the Atlanta Dream, and the players aren’t having any of her BS.
They dedicated their season to SayHerName and BLM, and KL trashed them.
So a lot of players wore Vote Warnock shirts to games. pic.twitter.com/WX7qjBO9BE
— Better b*tch than mouse. Vote Biden-Harris(@ThunderHeadFan) September 22, 2020
In one of Kelly Loeffler’s ads she celebrates “taking on” the WNBA. Sis, you didn’t take them on. Your own team called you out on your racism and they don’t like you.
— ken (@_2kgrace) September 21, 2020
Certainly, there is much to be said about Loeffler as a candidate, as well as her motivations for this bill. But I’m going to let a Peach State representative handle this:
But you won’t see any mental-health or school-training legislation by Sen. Loeffler. She’d rather use our transgender kids as a political prop for her re-election campaign. She clearly doesn’t care if it results in more youth suicide this year.
So much for being “pro-life.”
— Matthew Wilson (@mwilsonGA) September 24, 2020
[Image via Alex Wong/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.