Yes, men and women–especially after puberty–have important biological differences that show up in measures such as average weight and muscle mass. If you take a healthy man and women of comparable fitness, training, and weight, the man will outcompete the woman in pretty much any physical contest in which strength matters. So it makes sense, if we’re going to have women’s sports divisions, to exclude transgender women (biological males) from competing with women, at least at competitive levels.
Yes, children are not fully capable of giving rational consent, so government rightly limits children’s access to things of danger to them, including sex, guns, drugs, and certain physical alterations.
So Protect Kids Colorado is on to something in proposing two ballot measures, one on limiting participation of transgender athletes (Initiative 109), the other on banning gender-affirming surgeries (Initiative 110). Out of the gate we have good reason to seriously consider each proposal. The secretary of state reports that signatures for both measures are due February 20. (Last time I discussed problems with a third measure from Protect Kids Colorado related to human trafficking.)
However, as always, intentions are not enough. We must carefully weigh the language of legal changes if we wish to achieve sensible and just law. In my view, conservatives and libertarians have good reason to oppose the sports measure and support the surgery measure.
Sports measure applies to private groups
Conservatives support people’s rights to associate freely and to conduct their affairs without government meddling, right? But Initiative 109 explicitly refers to private K–12 schools and colleges. Government changing the rules for government-run schools is one thing; government interfering with the decisions of private schools is quite another.
Where is the problem that this ballot measure is intended to solve? A basic conservative legal precept is, If it ain’t broke, don’t fix it. Unless someone can come up with a list of specific troublesome Colorado cases of the sort the ballot measure is intended to fix, there’s not much reason to support the measure.
Initiative 109 is flexible in that it allows for “coeducational or mixed” teams. Personally, I think it makes a lot of sense to abandon strictly sex-based sports categories and shift to categories based on directly relevant individual characteristics, such as muscle mass. Currently very-small boys basically are shut out of most competitive sports, and I don’t see any problem with them competing against heavier girls. (Where exactly to draw the lines I’m not sure.)
Regardless, there’s no strong practical reason to support Initiative 109 and a solid principled reason to oppose it.
Initiative 110 applies only to surgeries
Because Initiative 110 pertains only to surgeries, not hormone treatments, I think it is sufficiently delimited to merit support. Erin Lee of Protect Kids Colorado told Jon Caldara that she hopes the law eventually also bans gender-affirming hormone treatments, but that’s not the proposal now on the table.
Nailing down when a person is capable of rational consent is no easy matter. Any age cut-off is inherently somewhat arbitrary, as some people below any given age are intellectually and emotionally more mature than some people above the age. Still, sometimes an age cut-off is the best out-of-the-gate rule we can come up with.
Consider how the legislature handled age of consent with the bipartisan House Bill 19–1316, the point of which was to limit marriages of minors. Still, the bill allows marriage of people as young as 16 with judicial approval.
Here is the obvious question: Given the law allows a 16-year-old girl to get married with judicial approval, why not allow her to self-identify as a transgender boy and get her breasts surgically removed?
The plausible answer is that a marriage can be ended, whereas breast removal is irreversible. Asking a 16-year-old to wait two more years to go in for breast removal will not cause substantial harm and may prevent a mistake of lifelong consequence.
Initially I was worried that the measure might overreach by banning needed corrective or reconstructive surgeries. But the language is pretty careful: “‘Altering biological sex characteristics’ means treatment in response to a minor’s perception of sex or gender. It does not include treatment for persons born with a medically verifiable disorder of sex development or treatment for acquired physical or chemical abnormalities. ‘Altering biological sex characteristics’ does not include male circumcision.”
We should not treat older minor teens as if they have no capacity to consent, but we also need to realize that capacity is limited. I think Initiative 110 takes a reasonable approach.
Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.
