A ballot measure which purports to simply ban trans athletes from participating in sports could have further-reaching consequences for students regardless of gender, but you wouldn’t hear that from the activists backing the measure.
Proposition 134 was put on the ballot by Protect Kids Colorado (PKC), an anti-LGBTQ activist group, aided by powerful conservative religious organizations. Alongside it are Proposition 133, which would heighten the penalty for child sex trafficking to mandatory life imprisonment, and Proposition 135, which would ban medical procedures “for the purpose of altering biological sex characteristics” on minors.
During a panel at Colorado Christian University’s Western Conservative Summit in August, PKC Executive Director Erin Lee made the perhaps perplexing statement that she would rather all three of her group’s ballot measures go unenforced.
“The hope with all three of these is that they’ll be a deterrent,” said Lee during the panel. “I don’t want to have to implement sex testing [of student athletes].”
In the case of Prop. 134, it’s easy to see why. Opponents have argued that the language of the bill necessitates invasive inspections of children. Even PKC has punted on the issue of how it should be enforced.
“One of the criticisms … of our initiative, is that the language doesn’t clarify or specify how the sport category for females will be protected. Like, we don’t specify genital check,” said Jennifer Sey, owner of the anti-trans sportswear line XX-XY Athletics, at the Western Conservative Summit panel. “I’m kidding. You know, sex testing. We don’t specify a doctor’s note. I mean, partly that’s because the law shouldn’t legislate that, the counties should decide, the school districts should decide.”
PKC’s leaders have tried very hard to get ahead of the “invasive inspection” argument, and have offered various possibilities for alternatives. But their explanations largely raise further issues when subjected to scrutiny, or even when held up against the text of their own bill.
Mandatory cheek swab tests for all athletes would break the bank
“That’s the primary talking point is that we’re going to somehow force little kids to show their private parts,” said PKC Executive Director Erin Lee on The Jeff & Bill Show, Sept. 9. “That is not true. Standard practice globally and in the other 27 states is a biological sex test through your doctor. When you do your standard physical, oftentimes it’s just the cheek swab or an original birth certificate check, very easy.”
For its trans athlete ban, the Olympics uses a test for the SRY Gene, which typically appears on the Y chromosome and, during fetal development, causes the formation of testicles.
However, scientist Andrew Sinclair, who discovered the SRY Gene in 1990, recently wrote, “If there is a change in the SRY gene so it does not function as usual, then a person can fail to develop testes and be biologically female. Yet they carry XY chromosomes and under the World Athletics tests they would be excluded from competition.”
It’s worth noting that these tests aren’t cheap. Even the International Olympic Committee is aware of this: the list on its Frequently Asked Questions page about the policy includes, “What if athletes/sports governing bodies can’t pay for the screening?” and “What if the medical system abroad is not equipped to manage the screening?”
BluePrint Genetics, which provides the SRY Gene test and other tests, estimates that a single use of the test would cost $1,000. Multiply that by every single student who wants to play sports in Colorado, and you have to ask: who’s paying for that? Prop. 134 makes no appropriations to account for it.
School districts could likely not be expected to foot this bill. Studies commissioned by the state estimate that K-12 schools are already underfunded to the tune of $3.5 billion to $4.1 billion. Proposition NN, also set for the ballot this November, aims to address this by retaining revenue that would normally be refunded under Colorado’s Taxpayer Bill of Rights (TABOR).
And here’s the kicker: even if Colorado schools were to magically come up with the money, the SRY test would still not fulfill the requirements of the bill. That’s based on the bill’s exact language:
- The bill requires that “AN INTERSCHOLASTIC OR INTRAMURAL ATHLETIC TEAM OR SPORT SPONSORED BY A SCHOOL OR ATHLETIC ASSOCIATION THAT IS DESIGNATED FOR FEMALES, WOMEN, OR GIRLS SHALL NOT BE OPEN TO A MALE STUDENT OR PARTICIPANT.”
- A female/girl is defined as “A PERSON WHOSE BIOLOGICAL REPRODUCTIVE SYSTEM IS ORGANIZED AROUND THE PRODUCTION OF OVA.” A male/boy is defined as “A PERSON WHOSE BIOLOGICAL REPRODUCTIVE SYSTEM IS ORGANIZED AROUND THE PRODUCTION OF SPERM.”
Since the SRY gene shows the presence of a Y chromosome, not necessarily the presence of testes or lack of ovaries, taking the $1,000 test would not prove whether an athlete is female or male by the standards of the bill. Such an athlete’s eligibility could still be subject to scrutiny.
“Cheek swabs test for chromosomes. Not reproductive anatomy,” said Jax Gonzalez, Political Director at One Colorado, in an interview with the Colorado Times Recorder. “I am not sure of what they intended, but that is the outcome. And that is pretty clear based on the legal analysis of these valid measures.”
Gonzalez continued, “In addition to that, I don’t know why any parent would want to require schools to do DNA tests or collect DNA from their children.”
Even Protect Kids Colorado knows gene testing isn’t “viable”
During the Western Conservative Summit panel last month, Sey steered away from sex testing, in part due to the price issue.
“Now, if over time those tests become more reasonably priced and this becomes a more viable solution, that can be part of the physical that is by the doctor,” said Sey. “But I will tell you, I don’t want the school testing my child for sex. I don’t want the school having any medical intervening in my child’s life. So it has to be done by the doctor, but the test at this point is too expensive.”
Many Colorado kids lack adequate access to medical care, documentation
The other option PKC provides: verification will require official documentation, like a doctor’s note or a birth certificate.
“There will be no genital checks. No one’s genitals are getting checked,” insisted Sey during the Western Conservative Summit Panel. “There are laws in 27 states, and no one’s genitals have been checked. There are already laws in the 27 states. That never happens. It will be a doctor’s note.”
But this, too, has the potential to price out many Colorado students.
According to the National Survey of Children’s Health, more than 215,000 school-age girls in Colorado lack regular access to a personal doctor or nurse.
Additionally, a report last year by Colorado Children’s Campaign found that, as of 2023, 4% of Colorado children lack any health insurance, making them statistically less likely to see a primary doctor.
Using a child’s birth certificate might not be any easier for many families. A 2024 study by the Brennan Center found that 21.3 million American citizens don’t have birth certificates or other identifying documents readily available if needed. The research found that the disparity was greater among people of color.
If a student doesn’t already have a birth certificate on hand, their parents would need to get a new copy mailed from the department of public health in the state where they were born. Many states’ websites list a processing time of up to two months for these records. That means a student could spend months stuck in administrative limbo, unable to play sports with their friends until their birth certificate arrives.
Even then, there are rare cases in which a birth certificate lists someone’s birth sex incorrectly.
The policy is opposed by educators
Prop. 134 “does absolutely nothing to protect our kids,” a spokesperson for the Colorado Education Association wrote in a statement to the Colorado Times Recorder.
“Instead, Proposition 134 would put students at risk. It would force countless young people to undergo invasive gender verification, exclude many students from sports who simply want to play on teams with their friends and peers, and force school districts to spend valuable time and resources enforcing a vague, poorly-written policy of exclusion.
“We should reject efforts to distract us from the real issues facing our schools — chronic underfunding, overcrowded classrooms, and a lack of adequate student behavioral-health support,” the statement concludes.
Any student could face undue scrutiny
The idea that, under a policy like this, a cisgender female athlete could face undue scrutiny over her birth sex is not unprecedented. In Utah in 2024, after the state’s legislature passed a law banning trans athletes from sports in 2022, a 16-year-old girl who played high school basketball — described by her parents as a short-haired tomboy — was publicly accused of being transgender by a state school board member. A social media firestorm of transphobic and bullying comments against the girl ensued.
This is far from the only incident of its type. There are many examples of anti-trans activists leveling accusations of being transgender against cisgender athletes online, often provoking extreme vitriol on social media against the accused. In some cases, leaders of Protect Kids Colorado have promoted these false allegations.
But Prop. 134 is also different from trans sports bans on the books in many other states. For one thing, most states with such a policy do not define ‘male’ and ‘female’ by reproductive organs.
Most other states’ policies also revolve around a “private cause of action:” Effectively, if you believe that a given athlete is transgender, and that this has caused you harm in some way, the law gives you the right to take legal action. Only once such a complaint has been filed would an athlete be forced to prove their sex (unless a school district wants to get ahead of a potential lawsuit).
Prop. 134 contains no such clause. The bill’s text details that it would be enforced by the state Education Commissioner, who leads the state Department of Education. It’s not clear how the Department would even determine a school is in violation of the policy, but an offending school could risk losing its accreditation.
“It doesn’t clearly indicate how it would be enforced or how those enforcement decisions would be made or even what could happen to a school if it wasn’t enforced,” Gonzalez told the Colorado Times Recorder. “So for example, if you follow the details based on the citations in the ballot measure, you will find some definitions about what the State Department of Education has control over, what kind of levers it can pull if a school is out of compliance with standards or policies that the state requires. That can include things like, you know, removing a school’s accreditation.”
Additionally, proponents’ decision to let individual districts decide how to implement the policy could cause discrepancies between districts, opening up further legal trouble.
“Schools where there are less resources and they might be more aware of the lack of resources, a community might just say, ‘Okay, well, we are going to do this ourselves. We’re gonna have the nurses verify what reproductive anatomy a child has,’” said Gonzalez. “Which, I’m also not sure how one would do that, besides an invasive verification.”
Gonzalez continued, “A school could decide, ‘Okay, we’re gonna use birth certificates.’ And then, because of the way they define female and male, those birth certificates are not going to tell you whether or not that child has that reproductive anatomy. And so then that school might be opening themselves up to a lawsuit against them for not correctly implementing the policy.”
But could it be okay if, as Lee suggested, the policy just goes unenforced? Gonzalez said that such a scenario would be unlikely, given the language of the bill, which mandates that individual school districts adopt their own sports ban policy by Jan. 1 of next year.
“I don’t see a way for them to do that [leave the policy unenforced] since they have made it required for school districts to implement by Jan. 1, 2027, this type of policy, without clarity on what the policy should even be, right?” said Gonzalez. “I don’t see a way that this doesn’t impact all kids in Colorado immediately. And if it were to be a deterrent, I mean, I would say that the general political environment is already a deterrent for transgender kids to play sports.”
They concluded, “Why pass the law if you don’t want it to be implemented?”
Protect Kids Colorado did not respond to a request for comment. This story will be updated with any response received.
