'Women's Bill of Rights' policies could impact daily lives of transgender community

Several states are considering legislation that would create legal definitions for "man" and "woman" based on their reproductive system.

This controversial proposed legislation -- dubbed by Republican lawmakers as the "Women's Bill of Rights" -- now seen in West Virginia, Iowa, Georgia, and other states has implications for the transgender community, which has been the target of conservative-backed restrictions nationwide.

Critics argue that the restriction definitions will lead governments to no longer legally recognize transgender people, leading to discrimination and inaccurate identification practices.

Proponents of the bills argue that the bills are intended to promote safety, privacy, and public data accuracy by defining sex under specific biological terms.

Similar bills continue to spur heated discussions in committee hearings, with waves of critics coming out in opposition.

What do the bills say?

Bills in West Virginia, Georgia, and Iowa would legally define women and men based on whether they have, had, will have or would have "a reproductive system that at some point produces, transports, and utilizes" eggs or sperm for fertilization, respectively.

The bills state that exceptions can be made for people who are intersex and have a developmental or genetic disorder or difference in sex development, or have had a "historical accident" that disrupts their ability to have such a reproductive system.

The definitions of a man, a woman, a girl, a boy, a father, a mother, a male and a female would all be defined by one's sex and reproductive system and not by their gender expression and identity.

The Centers for Disease Control and Prevention defines gender and sex differently.

The agency defines gender as "the cultural roles, behaviors, activities, and attributes expected of people based on their sex."

Sex refers to an individual's "biological status as male, female, or something else. Sex is assigned at birth and associated with physical attributes, such as anatomy and chromosomes," according to the CDC.

West Virginia's legislation argues there are only two sexes -- either male or female -- and that intersex people "are not a third sex."

"Women and men are not identical; they possess unique biological differences," argues Iowa Governor Kim Reynolds in a statement on her state's legislation.

Intersex people, who are estimated to make up 1.7% of the population, are born "with biological sex characteristics that vary from what is typically thought of as exclusively male or female." This includes ambiguous or abnormal reproductive organs or chromosomes.

These new definitions would be implemented across large swaths of legislative code.

These bills aim to restrict the use of single-sex facilities such as locker rooms, rape crisis centers, prisons, domestic violence shelters and restrooms for transgender people and restricting trans people from changing their gender markers on IDs.

In Georgia, the bill removes "sexual orientation and gender" from the list of potential motivations for a hate crime.

Iowa's proposed bill includes: "Any state law, policy, or program that prohibits discrimination on the basis of sex shall be construed to forbid unfair treatment of females or males in relation to similarly situated members of the opposite sex."

At least four states have passed similar policies: Montana, Tennessee, North Dakota, and Kansas.

How could this impact transgender people?

Some legal advocates and LGBTQ activists argue that these bills aim to "erase trans people from public life," said Sasha Buchert, director of the Non-Binary and Transgender Rights Project at Lambda Legal.

"Having legal recognition is so important to be able to move through the [world,]" said Buchert. "Think about how often you have to pull out your ID to present it."

If gender markers don't match someone's gender identity, it could lead to confusion, harassment, and discrimination, according to Rodrigo Heng-Lehtinen, the executive director of the National Center for Transgender Equality, a social justice advocacy group,.

Heng-Lehtinen is a transgender man and lives as a man in every facet of his life. But if his records listed him as a female, it could be difficult to identify or find him.

"Accuracy matters," said Heng-Lehtinen. "We have to track how people are actually living and the gender they identify as every day. When that becomes rigid, or cemented, where people can't update those records, can't update the gender marker, it exposes people to widespread harassment and discrimination."

Regular activities -- such as applying for a new apartment, applying for a loan, or using your ID at a bar -- could lead to discrimination if someone's gender and gender marker don't match, advocates say.

Advocates have also expressed concerns about the bill's goal of defining sex so narrowly across legislative code.

The Supreme Court's 2020 decision in Bostock v. Clayton County found that discrimination protections based on "sex" also applied to sexual orientation and gender identity. By limiting the definition of sex so narrowly, advocates fear it could exclude the LGBTQ community from protections based on people's identity.

These concerns extend to Georgia's removal of sexual orientation and gender from its hate crime law, particularly at a time in which physical attacks and threats on the LGBTQ community are increasing.

"There is a correlation between the policy attacks and the physical attacks, so it is critical that our hate crime laws address this in a meaningful way," said Heng-Lehtinen.

As for restrictions in single-sex facilities, the bills don't include specific measures for enforcement. Transgender bathroom bans have reportedly been a source of confusion for law enforcement officials because of their lack of guidance on how to impose such bans.

Could this impact non-transgender people?

Laws aiming to police gender and sex don't just have an impact on the transgender community, Buchert states, pointing to a recent incident in which a Utah school board member falsely and publicly suggested a student was transgender because of how she looked.

The young girl was subject to online harassment and bullying following the board member's now-deleted post. The school official later apologized.

"Restrictive attempts to define these terms in this way is this heightened scrutiny that ends up harming, you know, everyone and especially women," Buchert said. "These kinds of policies and this kind of trans panic have a really negative effect on everyone."

Shannon Minter, the Legal Director of the National Center for Lesbian Rights, states that the laws could affect how women are seen in discrimination law.

"They literally define women based on their reproductive anatomy and say that is the only definition of sex that can be used in any state law," said Minter. "Most of the groundbreaking decisions that have protected women from gender stereotyping, sexual harassment over the past few decades depend directly on a much broader understanding of the term sex that it is not just about your reproductive anatomy."

Support for the bill

Supporters of "Women's Bill of Rights" legislation argue that allowing the definition of "sex" to include gender and sexual orientation "has serious negative consequences for our ability to create equal opportunities for women, foster safety, protect privacy, and conduct research, and collect accurate data," according to the women's advocacy organization Independent Women's Voice.

Supporters argue that there needs to be a strict distinction between gender discrimination and sex discrimination, stating that using them synonymously undermines discrimination laws in which they say biological differences are relevant.

The group says the so-called "Bill of Rights" simply clarify the meaning of current sex-based laws and "codifies current court precedent regarding single-sex spaces."