In the spring of 2020, Idaho became the first state in the United States to ban transgender girls and women from participating in women’s sports. Two years later, fifteen states have enacted similar laws. Trans athletes—particularly trans girls—are now directly in the crosshairs of America’s raging culture wars, as bills targeting trans and gender-expansive young people proliferate across the country.
But the reason for this explosion in sports bans isn’t a surge of trans student athletes dominating the playing field, political strategists and LGBTQ advocates say. It’s politics, plain and simple. Conservative groups and lawmakers realized that the issue could reliably excite Republicans and potential swing voters, drawing them into broader cultural debates surrounding trans rights in the U.S.—battles that tend to serve Republicans electorally.
“[These] bans are gaining steam for the same reason that election audits and [critical race theory] bans have been popular over the past year,” says Republican strategist Sarah Longwell, who has been critical of the Republican Party under Donald Trump. “They are PR campaigns masquerading as legislation, designed to keep culture wars at the center of the conversation.”
The idea of trans girls and women competing against cisgender female athletes tends to trigger emotional responses, playing on stereotypes about gender and biology. The issue acts as “sort of a gateway drug for people into the larger debate around gender and who gets to call themselves a woman,” says a conservative who works on Title IX issues, who requested anonymity to speak candidly about the rise in legislation.
“What makes this issue of trans sports different, and so explosive politically… is because politicians are willing to talk about it,” says Terry Schilling, the president of the conservative advocacy group American Principles Project (APP). APP spent over $5 million in the 2020 election combined with their affiliated super PAC on ads arguing Democrats’ support for trans athletes posed a threat to women’s sports, among other messaging points.
While Republican lawmakers claim the bans are designed to protect women, rather than to discriminate against a vulnerable group, LGBTQ advocates argue they are a solution in search of a problem. There are vanishingly few examples nationwide of trans athletes attempting to compete at all, and those that do are subject to local policies. In Michigan, for example, the Michigan High School Athletic Association (MHSAA) reviews whether trans athletes can play on a case-by-case basis, and the MHSAA told the Detroit Free Press that they’ve had an average of two requests a year—out of 180,000 high school athletes in the state.
In that context, expansive state-level bans are both unnecessary and cruel, argues Cathryn Oakley, state legislation director and senior counsel at the LGBTQ advocacy group Human Rights Campaign, which has challenged state-level sports bans in court. “The rules can’t be the same for fourth grade kickball as they are for sixth grade JV lacrosse as they are high school track,” she says. “The idea that painting them all with one really broad brush is somehow going to ensure fairness is absurd.”
Now, the small group of trans student athletes in the U.S. are at the center of a major political debate involving millions of advertising dollars as at least 30 states in the last six months have considered bills that would ban them from the field entirely, preventing trans student athletes from playing on the team aligned with their gender identity.
The laws have support on the right. A March 2022 YouGov poll found that 77% of Republicans oppose allowing trans student athletes to play on sports teams that match their gender identity, compared to 24% of Democrats. Just as same-sex marriage was used as a wedge issue for Republican voters in the 2000s, these are the “new wedge culture war issues that help drive GOP enthusiasm and, more importantly, alienate Democrats from swing voters when they fail to provide a coherent counter-narrative,” Longwell says. “Republicans are on offense on these issues, and it’s working. Democrats still haven’t figured out an effective defense, let alone an offense strategy of their own.”
A first step in a broader attack
There are no known estimates for the number of trans student athletes in the country today. Beth Stelzer, the founder of the group Save Women’s Sports, which advocates for banning trans girls from women’s athletics, says she can verify five examples in the country of trans girls in K-12 who have played women’s sports, although she says it’s hard to confirm cases because of privacy laws.
In Kentucky, LGBTQ advocates say only one known trans athlete, Fischer Wells, was playing in the state when the Kentucky legislature overrode the Democratic governor’s veto in April, banning her from the field hockey team. In Utah, four trans kids out of an estimated 75,000 kids were known to be playing high school sports when the state legislature passed its trans sports ban in March, and only one was playing on a girls team. Utah Governor Spencer Cox, a Republican, vetoed the legislation on March 22, citing in part the handful of children being targeted. “Four kids who aren’t dominating or winning trophies or taking scholarships. Four kids who are just trying to find some friends and feel like they are a part of something,” he said in a statement explaining his veto. “Rarely has so much fear and anger been directed at so few.” The Utah state legislature overrode him three days later, banning those four students from the field.
But if the small number of trans athletes makes statewide bans seem irrational, it’s also what makes them possible, LGBTQ advocates say. The lack of visibility trans people still have in the U.S. is part of why these laws are getting passed, says Sarah McBride, a Delaware state senator and the first openly trans state senator in the country. “People perceive the harm that they’re committing against trans kids to be narrow,” she says.
Polls show that few Americans know a trans person, particularly a trans young person, which gives disproportionate weight to the stories of a handful of elite-level trans athletes, like champion University of Pennsylvania swimmer Lia Thomas, who became the first known trans athlete to win a NCAA Division I national championship in March. Between December 3, 2021 and January 12, 2022, Fox News aired 32 segments about Thomas, per Media Matters. (The coverage is even more distorted by the fact that many state bans do not address college-level athletics at all; Meg Kilgannon, a senior fellow at the conservative Christian group Family Research Council, says she thinks some state chambers of commerce don’t want to risk a NCAA boycott.)
While very few grade-level trans athletes have been blocked from competing on their sports teams in the past two years, LGBTQ advocates say the impact of these laws on trans youth overall could be devastating. A Jan. 10 poll by the LGBTQ suicide prevention nonprofit the Trevor Project found that 85% of trans and nonbinary youth said recent debates about anti-trans bills had negatively impacted their mental health.
Such narrow bans also often serve as the first step in a larger assault on trans rights. In the two years since Idaho’s sports ban, conservative state lawmakers have introduced a surge of bills targeting LGBTQ youth, and roughly 240 anti-LGBTQ bills have been filed in 2022 alone, with about half specifically targeting trans people, according to a March 20 NBC News analysis. In the progression of such legislation, athlete bans typically come first. Last year, Texas, Florida, and Alabama each enacted a sports ban. This year, Texas has taken steps to deny trans children access to gender-affirming care, Florida has banned classroom discussion about gender identity and sexual orientation in primary grade levels, and Alabama has done both.
“Trans people are either full members of society or we are not,” says Gillian Branstetter, a communications strategist at the American Civil Liberties Union (ACLU). “The moment our civil rights start coming with asterisks and exemptions, it leaves the door open for a lot of the very hostile and cruel legislation we’ve seen introduced this session.”
Idaho State Rep. Barbara Ehardt, a former basketball coach, spearheaded Idaho’s 2020 trans sports ban that started the avalanche of similar laws over the past two years. She says it does not matter whether there are examples of trans athletes playing in her state. It is a preemptive measure, she argues. “A lot of people are demanding their legislators act on this,” she says. “The topic is ripe.”
‘No one wanted to touch it’
The rise of anti-trans legislation can be traced back to June 2015, when the Supreme Court ruled that the Constitution protects the right for same-sex couples to marry. With the marriage question seemingly settled, gender identity became the next theater in the battle over LGBTQ rights.
In the following year, the first wave of anti-trans legislation in the form of bathroom bans crashed across the country. Most famously, North Carolina’s HB2 in 2016 banned trans people from using public restrooms aligned with their gender identity. The backlash was fierce and immediate. Companies boycotted the state en masse, costing North Carolina a projected $3.76 billion in total, according to an Associated Press analysis. (The law was partially repealed and has since expired.) The state’s Republican Governor Pat McCrory lost his re-election bid that November. “It was viewed as a losing issue. They had seen politicians lose on the issue. And so no one wanted to touch it,” says Schilling of the American Principles Project.
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That same year, Donald Trump won the Presidency promising to be a friend to the “LGBT community.” But once he took office, his Administration began to roll back protections for trans people, including the Obama Administration’s policy that denying trans students access to a restroom, locker room, or sports team aligned with their gender identity violated Title IX.
Then, in 2018, two trans girls, Andraya Yearwood and Terry Miller, won Connecticut state high school championship track titles and ignited a firestorm. News outlets across the country ran stories scrutinizing the bodies of the two Black trans athletes, pointing to them as the exemplars of the threat to women’s sports. Ehardt tells TIME it was after she saw what was “happening in Connecticut ” in 2018 that she felt compelled to introduce Idaho’s trans sports ban, which bans trans women and girls from competing on collegiate and K-12 women’s and girls sports teams. Both Connecticut runners were later named in a lawsuit filed by the conservative legal group Alliance Defending Freedom, on behalf of four cis female runners, alleging Connecticut’s trans-inclusive school sports policy was unfair. (The case is currently pending before the 2nd Circuit Court of Appeals.)
By 2019, the issue had become a political tinderbox. Schilling had seen conservative politicians, including Donald Trump Jr., tweeting about trans athletes, and he began urging Republicans to run on the issue. That year, APP’s affiliated super PAC spent about $600,000 on ads in the Kentucky Governor’s race, arguing that Democratic candidate Andy Beshear was a threat to women’s sports. APP contracted with the data science firm Evolving Strategies to track the impact of their messaging, and estimates 25,000 voters were moved to the GOP by their advertising. (Beshear won the race anyway.)
The next summer, POLITICO reported that Trump-world was split over the issue. Some of the then-President’s camp reportedly felt campaigning against LGBTQ issues would hurt Republicans, while others shared Schilling’s perspective: the issue had the power to rally the base. “It was a hunch,” Schilling says. “We knew it was popular with the people and we thought this could be something that politicians actually talked about.” APP began spending bigger on the issue, cashing out over $5 million combined with their super PAC affiliate on ads in Pennsylvania, Wisconsin, Michigan, and Georgia that argued Democrats threatened women’s sports, among other talking points.
By the end of 2020, at least 20 anti-trans sports bans had been filed in legislative sessions. And unlike North Carolina’s bathroom bill from four years earlier, these laws were met with a much more muted response from the left and the corporate world—not a single major company has boycotted a state over such a law—emboldening Republican legislatures to go further.
The battle over the future of Title IX
In the summer of 2020, shortly after Idaho enacted the first trans sports ban, the U.S. Supreme Court issued a significant ruling establishing the next frontier in this fight.
By a 6-3 vote in Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination for being gay or trans because it prohibits discrimination on the basis of sex. Trump-appointee Justice Neil Gorsuch wrote the majority opinion, and many viewed it as a huge loss for the Christian right. Missouri Republican Senator Josh Hawley argued it was “the end of the conservative legal movement, or the conservative legal project, as we know it.”
A few months later, America elected Joe Biden, the most pro-LGBTQ President in history. In his first day in office, Biden issued an executive order saying that under Bostock‘s reasoning, laws that prohibit sex discrimination, including Title IX, also prohibit discrimination on the basis of gender identity or sexual orientation.
The conservative legal world disagreed, and quickly began seeking new legal avenues to challenge the assertion. For Sarah Parshall Perry, senior counsel to the Assistant Secretary for Civil Rights in the U.S. Department of Education under Trump, Botstock was an invitation. It was a signal to “the fact that Title IX was separate,” she says. She points to Gorsuch’s line in the majority opinion saying Title VII does not “purport to address bathrooms, locker rooms, or anything else of the kind.”
The debate over how Title IX impacts trans people—and whether it allows trans girls to play alongside their cis peers—is still raging today. At least three federal lawsuits have been filed over the issue, with both sides arguing the other’s position violates Title IX and hurts women. The Biden Administration announced last year it would release a new interpretation of Title IX in April 2022 to include more protections for trans students, but the rule change hasn’t come yet. When it does, it could kick off a legal battle that works its way up to the Supreme Court, as state laws come into direct conflict with federal regulation. (The Supreme Court declined to weigh in on the issue last year, when it passed on reviewing a decision requiring schools to allow trans students to use the bathroom aligned with their gender identity.)
In the meantime, state-level athlete bans have exploded in state legislatures and dominate national political discourse. The umbrella organization Promise to America’s Children—which was founded by ADF, the Heritage Foundation, and the conservative group Family Policy Alliance—includes a model trans sports ban on their website. By May 2021, Fox News had aired more segments on trans athletes that year than it had in the past two years combined, according to the nonprofit Media Matters. The question of trans athletes has proven to be a powerful political tool for conservatives, and could boost Republicans in the midterms. Schilling’s American Principles Project says it has already raised over $6 million for an upcoming midterms campaign that will focus on the athlete question.
McBride, the Delaware state senator, thinks ultimately the GOP will lose on the issue, as it has with debates over LGBTQ rights of the past. “The more the country understands how the policy impacts trans people, the more they begin to understand and learn about who trans people are,” McBride says. “The clock will begin ticking on the political effectiveness and possibility for this type of legislation.”
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