How Trans Sports Bans Became Part of Conservative Movement

Itn 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. A total of fifteen other states have adopted similar laws just two years later. 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]For the same reason as election audits, bans are on the rise. [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.”

It is easy to feel emotional when you see transgender girls or women competing against cisgender athletes. 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.

Republican legislators claim that the bans were intended to protect women and not discriminate against vulnerable groups. LGBTQ advocates, however, argue that they provide a solution to a problem. Trans athletes are rare in the United States. Those that are allowed to compete are also subject to local regulations. 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.

Expansive state-level bans, in this context, are cruel and unnecessary, says Cathryn Oakley (state legislation director, senior counsel, LGBTQ advocacy group Human Rights Campaign), which has challenged state 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.”

The small number of trans students athletes currently in the United States are the focus of an important political debate that has involved millions of dollars in advertising. At least thirty states have recently considered legislation to ban them completely from the field, which would prevent trans student athletes playing for teams aligned with the gender identities they identify.

These laws are supported by the right. YouGov’s March 2022 poll showed that 77% opposed to trans students playing on teams that reflect their gender identity. 24% of Democrats disagree. 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.”

This is the first step of a much larger plan.

It is not known how many trans-athletes there are in this country at the moment. 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. Four trans children were among the 75,000 Utah kids who played high school sports at the time that Utah’s legislature passed its trans-sports ban. Only one of them was playing on a girl team. Utah Governor Spencer Cox (a Republican) vetoed legislation March 22. He cited in part the few children 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. These laws have been passed because of the lack of visibility that trans Americans still enjoy in America, according to Sarah McBride (Delaware state senator, first transgender state senator). “People perceive the harm that they’re committing against trans kids to be narrow,” she says.

Surveys indicate that Americans don’t know many trans people. This is especially true for trans youth. Lia Thomas was the champion University of Pennsylvania swimmer and the first trans-athlete to win the NCAA Division I National Championship in March. Media Matters says that Fox News ran 32 segments about Thomas from December 3, 2021 to January 12, 2022. (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 trans youth are not banned from playing on sports teams, there have been very few instances in which they were prevented. LGBTQ advocates fear that the laws will cause damage to the lives of trans teens. According to the Trevor Project, 85% of LGBTQ youth surveyed said that recent discussions about anti-trans legislation had negatively affected their mental well-being.

Sometimes, such narrow bans serve as an initial step towards a bigger assault on trans right. 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 process of such legislation, athletes bans often come first. Texas, Florida and Alabama all enacted sports bans last year. Texas is taking steps this year to block trans kids from accessing gender-affirming services. Florida banned primary grades classroom discussions about gender identity or sexual orientation, while Alabama did 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. It doesn’t matter if trans athletes are found in the state, she says. This is a preventive measure she claims. “A lot of people are demanding their legislators act on this,” she says. “The topic is ripe.”

‘No one wanted to touch it’

Anti-trans legislation has been on the rise since June 2015 when the Supreme Court decided that the Constitution protected the rights of same-sex couples who wish to wed. With the question of marriage seemingly resolved, Gender identity was the next stage in the fight for LGBTQ rights.

The next year,The country’s first anti-trans bill, which consisted of bans on public bathrooms, crashed. Most famously, North Carolina’s HB2 in 2016 banned trans people from using public restrooms aligned with their gender identity. There was a strong and swift backlash. The state was boycotted by large numbers of companies. This cost North Carolina an estimated $3.76 trillion, according to an Associated Press study. (The law has now been partially repealed. The state’s Republican Governor Pat McCrory lost his re-election bid that November. “It was viewed as a losing issue. The issue had been a losing cause for politicians. And so no one wanted to touch it,” says Schilling of the American Principles Project.

Learn More History-Making Trans State Legislator Danica Roem’s Roadmap for Protecting LGBTQ Kids

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.

Andraya yearwood and Terry Miller were trans girls who won the Connecticut state track title at high schools. It set off a storm. 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 2nd Circuit Court of Appeals is currently hearing the case.

The issue was a hot political topic by 2019. Schilling saw Donald Trump Jr. and other conservative politicians tweeting about trans athletes. He began to urge Republicans to take up the cause. 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. Evolving Strategies, a data science company, was contracted by APP to monitor the effect of its messaging. It estimates that 25,000 people were influenced to vote for the GOP because of the advertising. However, Beshear was elected to the presidency.

POLITICO published a report the next summer that Trump-world had split on the matter. 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 2020, there were at least 20 sports bans against transgender people that had been brought to the legislature.. 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.

Title IX: The fight for its future

Just a few months after Idaho passed the first transsport ban in the summer 2020, the U.S. Supreme Court released a major ruling that established the next frontier of this battle.

A 6-3 vote in Bostock v. Clayton County, Because Title VII of Civil Rights Act of 1965 prohibits discrimination on basis of sexual orientation, the Supreme Court found that employees are protected from being discriminated against for their homosexuality or transgenderism. The majority opinion was written by Trump’s nominee Justice Neil Gorsuch, which many saw as a major 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.”

Just a few months later America elected Joe Biden as the first pro-LGBTQ president in American history. Biden’s first day as president issued an executive order stating that the under-represented should be removed. Bostock‘s reasoning, laws that prohibit sex discrimination, including Title IX, also prohibit discrimination on the basis of gender identity or sexual orientation.

Conservative legal professionals disagreed and began to seek new legal avenues for challenging the claim. Sarah Parshall Perry was the Senior Counsel to the Assistant Secretary of Civil Rights for the U.S. Department of Education. BotstockThis 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. As state laws often conflict with federal regulations, it may spark a legal dispute that could reach the Supreme Court. The Supreme Court didn’t decide to comment on this issue when it passed a review of a ruling requiring trans students in schools to be allowed to use the toilet according to gender identity.

State-level bans on athletes have become a major topic in national politics and are now gaining momentum within state legislatures. 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. According to Media Matters, Fox News had shown more trans-related segments in May 2021 than any other year. Trans athletes is proving to be a strong political tool for conservatives and may boost Republicans during 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) believes the GOP will eventually lose the debate on this topic, just as it did with past discussions about LGBTQ rights. “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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