Bivens shared her story on Wednesday to warn Arizona lawmakers on the House Judiciary Committee that a proposal seeking to enshrine a narrow definition of biological sex into state law could harm children like her daughter.
Senate Bill 1628 would eliminate every mention of gender in state law and replace it with “sex,” a definition restricted to male or female and based on a person’s reproductive characteristics. The Senate passed the measure Feb. 22 in a 16-3-1 vote.
Rep. Teresa Martinez, R-Casa Grande, questioned whether Bivens’ daughter had a “male body part” and grilled her on who it was that “decided” her daughter is a girl.
An emotional Bivens explained that the endocrine issue also affected her daughter’s ability to thrive as a newborn. And, with limited information and the opinion of a New York endocrinologist over a month away, doctors asked Bivens to make a determination to finalize the birth certificate.
In cases like hers, Bivens said, the process isn’t straightforward and parents, in conjunction with medical professionals, make the decision they think is best. The bill’s mandates would undermine that and worsen an already fraught situation.
“This bill gets into medical decision-making between parents and doctors, and diminishes parents’ rights,” she said. “It also diminishes the doctor’s ability, and the hospital’s ability, for what they can offer a parent in those circumstances where you don’t fall into these categories, and all you’re trying to do is figure out: How do I get my daughter home safe?”
But lawmakers on the panel were unconvinced, with some outright dismissing the existence of intersex people.
Rep. John Gillette, R-Kingman, consulted Committee Chair Selina Bliss, R-Prescott, on whether humans can be born with anything other than XX or XY sex chromosomes. Bliss, a former nurse, confirmed that those are the only two sets of chromosomes.
In fact, while rare, people can be born with extra or missing sex chromosomes.
“There are only two sets of chromosomes,” Gillette said, in his concluding comments before voting to advance the proposal. “An XX will never need a prostate exam. An XY will never need a pap smear.”
Bill keeps schools from discriminating ‘against our girls’
Supporters of the bill have sold it as a way to protect cisgender women by strictly separating private spaces and athletic activities based on biological sex.
Shelli Boggs, a member of Moms for America, a conservative Christian group that opposes radical feminism and has been labeled an anti-LGBTQ hate group, said the legislation is a way to fight against leftist ideologies in schools.
Inclusive school policies have come under fire from Republicans, who have repeatedly advanced several discriminatory measures to restrict the behavior of trans students. The majority of those measures have been unsuccessful, having been vetoed by Gov. Katie Hobbs, but a law passed in 2022 bars trans girls in Arizona from joining school sports teams that best match their gender identity. That law is currently being challenged by a trio of trans girls who argue it violates multiple federal protections.
Boggs, who is seeking a nomination for Maricopa County School Superintendent, said the bill, which has been dubbed “The Arizona Women’s Bill of Rights,” is a necessary safeguard for schools.
“Without clear and concise language, provided by SB1628, to define biological sex, schools are put in the middle of an ideological culture war that doesn’t put the rights and needs of our children’s best interests first,” she said. “It ties their hands and forces them to discriminate against our girls.”
Christina Narsi, chair of the Arizona chapter of the anti-LGBTQ group Independent Women’s Network, denied that the legislation eliminates anyone’s rights, saying that it instead seeks to clarify the meaning of state laws.
“SB1628 is really a simple housekeeping measure intended to ensure that laws passed by the legislature are applied as this body intended,” she told lawmakers. “It is a tool for fighting judicial activism and returns power to you, the legislature, to decide how and in which context it is appropriate to separate citizens by sex.”
‘It is inspired with the goal of erasing LGBTQ+ people’
But LGBTQ advocacy organizations have denounced the act as a poorly veiled attempt to legislate away the existence of trans and nonbinary people. The act allows for gender-nonconforming Arizonans to be pushed out of locker rooms, bathrooms, domestic violence shelters and even sexual assault crisis centers that don’t align with their biological sex. And state-issued documentation would have no regard for a person’s gender identity.
For Gaelle Esposito, a trans woman and lobbyist for the Arizona chapter of the American Civil Liberties Union, which opposes the act, eliminating access to identity documents like driver’s licenses that accurately reflect who she is would be a major concern.
“Every time I travel or go out to a restaurant or bar, I would be outed against my will,” she said. “If I die, even my burial records wouldn’t be allowed to acknowledge me for who I am.”
And the ability of transgender people to obtain identity documents that are congruent with their gender identity significantly impacts their risk of experiencing violence, harassment, or denial of services.
Bivens, who is also a lawyer with experience in prosecuting and defending sex discrimination cases, added that state laws already sufficiently protect women against discrimination and harassment.
Martinez grilled Bivens on that claim, asking who would have the upper hand if a cisgender woman was offended or harassed by a transgender woman in a public restroom.
Adults have several legal avenues to seek redress, Bivens said, including criminal cases, civil lawsuits and orders of protection. In each case, a judge determines if there is sufficient grounds for the plaintiff to allege their rights have been violated.
“You can take your case to the courtroom and say, I have this case and let it figure out if, under the law, you were harassed in a way the law recognizes,” Bivens said.
But that didn’t satisfy Republicans, for whom a transgender woman’s presence should be enough of an offense.
“If we have a female locker room for female students, and there is a biological male who identifies as a woman and wants to use those facilities, do you think that the young women in that school need to be made to shower and change in front of a biological male?” Rep. Justin Heap, R-Mesa, asked Bivens. “Is there something in your mind that’s unnatural about a teenage girl not wanting to undress in front of a teenage biological male?”
In schools, Bivens responded, such complaints would be taken to the Title IX office, which handles sex-based discrimination claims.
In her final comments, Martinez compared being transgender to playing dress-up before voting to greenlight the bill. And while she allowed that medical anomalies exist, she said the bill is still necessary to combat what she called misinformation.
“If anybody wants to feel that they’re prettier with makeup, that they enhance their beauty with jewelry or with outfits, I think that’s a great thing. You do you,” she said. “What I do have a problem with is that people are saying that this is not a fact. We have two sexes, not three; they’re not subject for opinion. There are facts.
“There is male and there is female. That’s it.”
Democrats on the panel denounced the proposal as discriminatory, and criticized Republican characterizations of gender as a choice.
“SB1628 is what we have been referring to as the LGBTQ+ Erasure Act, because it is inspired with the goal of erasing LGBTQ+ people, particularly transgender and nonbinary people, from public life,” said Rep. Analise Ortiz, D-Phoenix, reading aloud from a written statement, before being cut off by Bliss after an uproar from Republican lawmakers.
The bill passed the committee on Wednesday by a vote of 6-3, with only Republicans in favor. It next goes before the full House for consideration, where Republicans hold a one-vote majority. But while it’s likely to get that final approval, it’s destined to be vetoed by Hobbs, who has vowed to reject every anti-LGBTQ proposal that crosses her desk.
This story was first published by Arizona Mirror, which is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Follow Arizona Mirror on Facebook and Twitter.
