Oklahoma Sports ‘Biological Sex Affidavit’ Raises Questions

“I went into it, ‘boys are boys, girls and girls. This is this, that is that, and this is how it is.’” Runnels added. “It’s not like that. … It’s a very, very layered issue.”

Oklahoma Gov. Kevin Stitt signed the “Save Women’s Sports Act” into law in March, one of more than a dozen state laws across the country that target transgender athletes. It bans public elementary, middle school, high school and college athletes from competing on the sports teams of their gender identity if that is different from their sex assigned at birth.

Oklahoma is believed to be the only state to also require the affidavit — what critics call a “gender oath” — to play sports.

Critics of the law and the affidavit believe such legislation serves an indirect purpose. Many GOP-led states have pushed culture wars issues that energize conservative voters onto their agendas heading into November’s midterm elections. Laws and policies have further restricted abortion rights since the U.S. Supreme Court struck down Roe v. Wade, blocked medical treatment for transgender children and banned books in public schools based on how they teach about race.

State Rep. Mauree Turner, a Democrat, became the first openly nonbinary state lawmaker in U.S. history in 2020. Turner, who uses they/them pronouns, said the Oklahoma law hit hard.

“For that piece of legislation to come from this legislative body after I was elected, sometimes I’m like — it feels very personal,” Turner said. “My entire community feels that, and we all have nonbinary people in our districts, whether or not we want to represent that.”

Turner said the law, and the affidavit, send a dangerous message.

“These laws don’t just damage once they are signed by the governor, they do damage when they are written, when the public knows that there is someone who is in a place of power that is coming for them and not in a good way,” Turner said. “The policy becomes law and tells our children, tells the future of Oklahoma, how we feel about them.”

Lia Thomas, a transgender woman, won an NCAA championship in swimming in March, helping trigger a number of Republican-led states to enact legislation against transgender athletes. State Sen. Micheal Bergstrom, the Oklahoma bill’s author, said the affidavit is merely a mechanism to guarantee compliance.

“Biological males clearly have a physical advantage over biological females in sports,” said Bergstrom, a Republican. “Therefore, to protect the integrity of such, to protect young women from losing out on everything from titles to scholarships, and to guarantee fairness, this legislation was necessary.”

Whether there is actually a problem to address is up for debate. A 2019 study by the Centers for Disease Control and Prevention (CDC) estimated 1.8% of the roughly 15 million public high school students in the United States are transgender. A 2017 survey by Human Rights Campaign suggested fewer than 15% of all transgender boys and transgender girls play sports.

Opponents of the law say the actual number of students directly affected isn’t relevant. What really matters, they say, is that conservative Republicans are targeting marginalized groups for cheap political points. They say it’s unclear how the information will be used, and the affidavit could be a step toward more intrusive legislation.

“It’s all part of the same agenda,” said Hanna Roberts, the ACLU of Oklahoma’s staff attorney. “It’s part of the anti-woke, anti-liberal, anti-education, anti-trans, anti-LGBTQ agenda. And so in states where you see them prioritizing that, those types of agendas, that is where we’re going to see more and more bills like this.”

A Utah high school athletics association secretly investigated a female athlete after receiving complaints from the parents of two girls she beat in competition questioning if the girl was transgender. The family was not notified that its child’s records dating back to kindergarten had been checked.

Nicole McAfee, executive director of Freedom Oklahoma, said that’s the kind of case that worries her. Her organization advocates for LGBTQ+ rights

“There’s a lot of fear around how these gender oaths are going to be used, how they’ll be kept on file, and sort of what the extent is and the ability of this is to do for investigations that cause further harm as we see additional layers of legislation passed and enacted,” she said.

The Oklahoma bill does not outline a mechanism for enforcing the new law. It does say that any student or school district that suffers any direct or indirect harm as a result of a violation could sue for damages and attorney fees, making it unlikely that a district would risk not following the law.

The Oklahoma Secondary School Activities Association (OSSAA) provided a sample affidavit for its member schools to use, but many have used other means. Moore Public Schools includes the form with others required for eligibility. At least one school has a form that must be notarized, which adds a cost for families.

Oklahoma State says the rule hasn’t affected any of its college athletes; the University of Oklahoma declined to say if any of its athletes were affected. The OSSAA doesn’t track the information because it is not the enforcement arm for the rule.

Oklahoma state Rep. Jacob Rosecrants, a Democrat who has a transgender son, said he has spoken with parents of transgender kids who are concerned about the future. He said the form goes too far.

“If they’re transgender, they’re not becoming transgender to be better in sports, they’re just playing sports because they like that sport, just like anybody else that is a cisgender male or cisgender female,” he said. “So this is a massive, massive, massive government overreach. And I think it’s ridiculous.”