OPINION: Why senators had to vote on a transgender bill they never read

Gov. Brian Kemp after speaking on Sine Die, the last day of the General Assembly at the Georgia State Capitol in Atlanta on Monday, April 4, 2022.   Branden Camp/ For The Atlanta Journal-Constitution

Credit: Branden Camp

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Gov. Brian Kemp after speaking on Sine Die, the last day of the General Assembly at the Georgia State Capitol in Atlanta on Monday, April 4, 2022. Branden Camp/ For The Atlanta Journal-Constitution

Credit: Branden Camp

The last day of every Georgia legislative session is notoriously chaotic. But an 11th-hour demand from Gov. Brian Kemp that lawmakers produce a bill to ensure “fairness in girls’ sports” sparked a flurry of events Monday night that ended with senators voting one minute ahead of a midnight deadline on a transgender sports bill they never read before passing it on a party-line vote.

How the Senate approved a measure they never saw, on a politically charged issue that could affect every high school sports team in Georgia, is a tale of election-year politics, sidebar legislating, and a single state senator with a transgender child.

That state senator is Sally Harrell, an Atlanta Democrat who has watched in disbelief, and then horror, this year as her Republican colleagues introduced an all-out ban on transgender athletes from participating on any Georgia school sports teams different from students’ sex at birth. An early version of the bill this year would have applied to children as young as elementary school.

But with multiple other issues on lawmakers’ radars’ this election year, the transgender sports bill lost momentum and eventually stalled out on Monday. Ruled out-of-order under the Senate rules when it was attached to a larger bill, lawmakers of both parties assumed the issue was off the table for the year.

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All that changed shortly after 8 p.m., when the governor gave separate speeches in the House and Senate chambers to tell lawmakers there was still “‘work to do this evening,” specifically on girls’ sports. The unexpected request sent Republicans scrambling to produce a win for the governor, in some form or fashion.

With the original transgender sports measure all but dead, House Speaker David Ralston took out a draft of language he’d been quietly working on for weeks with House leaders and his staff. Although he had no plans to introduce a bill on his own, he wanted a product to present in case the politics required it.

The measure he drafted addressed transgender athletes in high school sports, but would not have a “ban” written into it. Harrell had made it clear during a speech earlier in the year that she saw transgender children’s mental health being put at risk in the effort to pass a ban.

With time racing toward midnight, the Ralston measure was attached to a bill from state Rep. Will Wade, R-Dawsonville, banning “divisive concepts” in schools. The full package quickly passed the House, over Democrats’ objections, shortly after 11:45. The bill was then sent quickly across the 3rd floor of the Capitol to the state Senate chamber for a vote.

“I got a text from somebody who knew what was going on in the House and gave us a heads up,” Harrell said in an interview this week. “So we began looking for the printed bill and couldn’t find it because it hadn’t been printed.”

State Sen. Elena Parent and Senate Minority Leader Gloria Butler were both standing with Harrell on the floor of the Senate and received texts on their phones, too.

“I got a text from at least three people,” Parent said. “But we had no idea what the bill was exactly.”

Although Butler requested printed copies of the bill for senators, a vote to force printing failed. Parent and other Democrats shouted to be recognized for inquires. Harrell was allowed to speak briefly, but she said Lt. Gov. Geoff Duncan quickly spoke over her.

Parent called the moment “really, really egregious.”

“The entire thing, I just absolutely can’t understand how it could be legal to take a vote on something that no one had seen.”

The bill passed the Senate at the stroke of midnight.

The end result was a heavily modified version of the “transgender sports ban” that isn’t a ban at all, but a law creating a study committee outside of the Legislature to learn more about transgender athletes in sports and what “fair” would look like for all involved.

The Georgia High School Association will use those recommendations to implement possible changes to current policies.

Harrell never saw a copy of the bill she voted against until 9 a.m. the following morning. To her surprise, it was “a whole lot less bad than it was before.”

“I can see the Speaker’s mark on this, in terms of how he was so concerned this session about mental health,” she said. “However, I think the ‘compromise’ that was worked out is a Republican compromise. Our side had no input.”

Parent, a lawyer, said the new bill is “extraordinarily watered down, which could have been a reason they didn’t want to put it on desks.”

But Rep. Wade, a former school board member, said he’s happy with the final product.

“I think what we came up with is reasonable, thoughtful, and will allow the association that governs k-12 education to address the issue.”

Staff to House and Senate leaders said there was no effort Monday night to keep language secret from lawmakers, but that fast-approaching deadlines on the final day of the session often produce bills that sometimes only the negotiators see a final draft of.

This, incredibly, is how it’s done.

Even with the new language, Harrell worries now that transgender children will internalize the debate as a rejection from their own state, after being rejected by so many other groups before.

She also said she understands the “real fear” parents have about the potential effect on girls’ sports and isn’t exactly sure what a solution should look like.

She suggested expanding intramural and club sports options for students, instead of keeping kids out of sports entirely. That could expand opportunities for more than just transgender kids to be a part of sports in school.

But she is sure that more research into the issue is needed and that, most of all, the ultimate answer should not come from the Georgia General Assembly.

Details aside, Kemp was so pleased with the bill that he touted it at the top of his first campaign speech of the day in Dawsonville on Thursday.

He rattled off a list of other items that passed this session, including a tax cut, a pay raise for teachers, and the loosening of gun restrictions. But his declaration that he’d tackled “saving girls’ sports” got the loudest applause by far from the conservatives in the room.

Afterward, Kemp told me he thinks the bill is a “good step.”

“I think what was done will suffice and make sure that we have fairness in girls’ sports,” he said.

With that, Kemp boarded his bus for the next stop on the 2022 campaign trail.