A board appointed by Gov. Mike Dunleavy decided Thursday in favor of a new regulation that would ban transgender girls from participation in high school girls’ sports.
The decision by the state board of education came less than six months after the board passed a resolution first indicating its members were interested in such a policy. All seven Dunleavy-appointed board members voted in favor of the new policy, which states that only girls whose sex assigned at birth is female will be able to compete in girls’ sports.
Board Chair James Fields said the regulation was needed to ensure fairness and protect girls from safety risks that might arise from competing with teammates who have gone through traditional male puberty.
Board member Sally Stockhausen said she felt it was important for the board to be “proactive.”
“If we wait until it becomes an issue, then it appears that the regulation would be about particular students who have started this, and I would never want to make them have to deal with that amount of public scrutiny,” she said.
The only individual to vote against the new policy during a 90-minute meeting Thursday afternoon was the board’s student representative, Felix Myers, a junior from Sitka, who said the policy could expose transgender students to bullying and criticized the board for spending time on the policy rather than other issues facing the state’s education system.
“Instead of spending our time going through lawsuits surrounding this issue and dedicating funds to those legal battles to further and perpetuate this, I think there are some other things that we can do to actually help women and female athletes and women’s sports that would be a lot more beneficial,” said Myers.
Earlier this summer, the board received hundreds of written comments from parents, students and advocates on the topic. The input was mixed: Many, particularly from conservative parts of the state, expressed support for the policy. But parents of transgender children, civil rights advocates and teachers all said the policy would be harmful to an already marginalized and small group of children.
Nearly half of U.S. states have passed laws to limit the participation of transgender girls in girls’ sports, part of a broader effort by Republican elected officials to limit the rights of transgender people across the country. In numerous Republican-controlled states, legislators have adopted laws to restrict gender-affirming care for minors, limit transgender people’s use of school bathrooms and limit what public schools can teach about gender and sexuality.
In Alaska, no such laws have been adopted. LGBTQ+ rights advocates say that the state constitution’s privacy clause — the same part of the constitution that protects abortion access in Alaska — could also be the basis for a legal challenge to laws and regulations involving transgender children, including the new sports regulations.
“We are absolutely going to use every tool at our disposal to keep this from going into effect,” said ACLU of Alaska advocacy director Michael Garvey, calling the policy a violation of privacy and equal protection rights.
Earlier this month, the 9th U.S. Circuit Court of Appeals upheld an injunction on a similar Idaho law from going into effect. The court said the law “perpetuates historic discrimination against both cisgender and transgender women by categorically excluding transgender women from athletic competition and subjecting all women to an invasive sex dispute verification process.”
Garvey said that based on that court decision and the Alaska board members’ statements on Thursday, the new regulation would likely not withstand a federal legal challenge.
“And that’s on top of the fact … that Alaska’s constitution provides even greater protections than the federal constitution,” Garvey said.
Sen. Shelley Hughes, the Palmer Republican who has called since 2021 for limiting the participation of transgender athletes in school sports, said she thought “the privacy clause has been overblown.”
Hughes said Thursday she was “elated with the victory” after three years of trying and failing to pass a bill that would have led to the same policy. But given the federal court’s decision, Hughes said she expected a legal challenge, and ultimately hoped the question would be addressed by the U.S. Supreme Court.
“I am glad to see that we have a policy on our books,” said Hughes. “Now, we will have to see what the courts will do.”
‘A pretty big mess’
The board adopted the regulation pending review by the state Department of Law, but didn’t provide a clear timeline for implementing the change. Many student athletes are already in the midst of their seasons.
“If I’m a kid who wakes up tomorrow and I’m part of a team — if I’m a transgender child — I don’t know what is required of me,” said Garvey. “It could be a pretty big mess right now without that clarity from ASAA, from the board, about when this takes effect.”
It is up to the Alaska School Activities Association, or ASAA, to implement the new regulations through a change to its bylaws. The association’s board of directors, which oversees all high school activities in the state, is set to meet next on Oct. 8.
Education department spokesperson Caroline Hamp said by email that the department “does not have a specific date” for when the new regulation would take effect. After it is reviewed by the Department of Law, the regulation must be filed with the office of the lieutenant governor. It becomes effective 30 days after it is filed. But a Department of Law review could be lengthy, especially given the expected legal challenges.
ASAA’s director, Billy Strickland, said Thursday that the regulation would likely lead the association to create two divisions in high school sports: one for girls whose sex assigned at birth is female, and one for all other students — including transgender students, boys, and girls who prefer to compete alongside boys.
Strickland said he is not aware of any students who would be affected by the regulation change, but that the association does not track transgender student participation.
Proponents of the regulation said that they did not intend for the new rules to reduce the participation of transgender students in school sports. They said transgender students would still be allowed to play, but reasoned they should not be allowed to compete alongside or against cisgender women.
After the board meeting, education commissioner Deena Bishop said in a statement there had been a “long, thoughtful process” leading up to the board’s decision.
Sen. Löki Tobin, an Anchorage Democrat who chairs the Senate Education Committee, said that the process felt to her like “very much the opposite” of that.
“It seems like the decision was made well before we ever got to this point, and now they’re simply trying to fit the argument for the decision that was already established,” Tobin said.
Tobin said she thought the decision dates back to the March resolution passed by the board of education, at the tail-end of a three day meeting with no public notice.
Fields said that despite the fact that the Legislature had not passed a bill instructing the education department to address the participation of transgender girls in school sports, it was still within the board’s authority to adopt the regulation.
Fields said the board was “in a better position to address and to be aware of issues involving state education” when compared to the Legislature.
“I think this is a good regulation. I think we’ve covered all of our bases,” Fields said. “I think we’re in sound territory.”
Tobin said she was frustrated to hear appointed board members “state that they have carte blanche to create legislation.”
“In this case, they are taking the power away from the local communities,” she said.
‘A safe and welcoming environment’
Prior to the adoption of the regulation, it was up to individual school districts across the state to determine if and how transgender athletes can participate in schools. The Mat-Su school district is the only one in the state that has voted to adopt a policy explicitly limiting transgender students’ ability to participate in school sports according to the gender with which they identify. Fields said the new regulation would create more consistency among school districts.
In a joint statement by Anchorage schools Superintendent Jharrett Bryantt and Anchorage School Board President Margo Bellamy, they criticized the board’s decision to adopt the regulation and suggested that they would not comply with it.
“With all of the current challenges facing Alaska’s public schools, it’s quite perplexing that this topic is a top priority for the Alaska State Board of Education,” Bryantt and Bellamy wrote. “Where is the data that indicates this is a widespread issue in Alaska which provides an unfair competitive advantage and/or risk to student safety? An urgent public school problem does not appear to exist.”
Bryantt and Bellamy said that the Anchorage School District’s mission is “to educate all students for success in life.” In an email, the word “all” was emphasized and underlined.
“Regardless of today’s decision, ASD will continue to provide a safe and welcoming school environment for all students,” they wrote.
School district spokesperson MJ Thim declined to provide additional information when asked whether the Anchorage School District — which accounts for 30% of all public school students in the state — would withdraw from ASAA-governed activities in response to the new regulation.
Anchorage Assembly members Chris Constant and Felix Rivera called the board’s decision a “blatant act of discrimination.” In May, they warned ASAA in a letter that the proposed regulation could open the Anchorage School District to legal liability due to a potential conflict with Anchorage’s nondiscrimination ordinance. Constant and Rivera said Thursday they “are actively seeking legal advice on this critical issue.”
Aaron Poe, a parent of a transgender student in Anchorage, called statements made by members of the board of education “shockingly ignorant.”
“It was very clear that none of these folks have trans people in their lives who are important to them,” said Poe.
Poe’s child is a freshman who just began expressing interest in playing sports in high school.
“The irony of her asking about that this week … it feels super bitter,” Poe said.
Poe said he is hopeful there will be a legal challenge to block the regulation. In the meantime, he plans to speak openly about his experience as the parent of a transgender child.
“Our children aren’t monsters. They are not infecting our society. They’re not harming anyone,” he said.