Biden signed an executive order on his first day in office to reinstate protections for gender identity that were curbed by the Trump administration. Meanwhile, lawmakers in at least a dozen states have proposed bills in recent weeks that challenge such protections. Some were carried over from 2020 sessions, when a record number of anti-trans bills were filed in state legislatures, according to the ACLU.
Many of those bills target youth and collegiate sports, with supporters arguing that transgender girls have an unfair physiological advantage in girls’ sports, an edge that can affect access to scholarships.
State Rep. Bruce Griffey (R), who has a cisgender daughter on a school golf team, is co-sponsoring a bill in Tennessee that would allow school competition only based on the gender listed on one’s birth certificate.
“What if one of the boys is not doing well, so he pretends to be transgender to win?” he asked. “I’m protecting a discriminated class: that’s girls and women in sports.”
But detractors say arguments about biological advantages among transgender athletes are based on limited research and put an outsize focus on a tiny fraction of young competitors. About 2 percent of high school students in the United States identify as transgender, according to data published in 2019 by the Centers for Disease Control and Prevention.
While studies on the issue are limited, advocates say young transgender athletes also face hurdles that affect their athletic performance, including discrimination, trauma and gender dysphoria.
Bills targeting transgender rights have a history of failing in state legislatures or getting tied up in legal battles. They often elicit protests and boycotts from LGBTQ activists and their supporters or create legal issues around discrimination and privacy.
The Montana House on Tuesday narrowly voted down a bill that would have punished doctors who provided certain medical treatments to transgender minors. Some Republican opponents were critical of bringing government into doctors’ offices and worried it would risk the state’s economy by attracting the kind of boycotts that North Carolina experienced after passing a “bathroom bill” in 2016 that banned transgender people from using public facilities that match their gender identity.
The Montana youth athlete bill has passed the state House on a 61-to-38 vote. It will now move to the state Senate.
Democratic opponents of these bills and some political experts charge that the legislative efforts amount to a political power play to rally the conservative base around an issue they see as threatening traditional gender roles.
The Alliance Defending Freedom, a legal advocacy group for socially conservative causes, published a blog post this week that charges transgender athletes with hijacking competitive opportunities and calls Biden’s executive order a threat to “gut legal protections for women and girls.”
“Alliance Defending Freedom will stand against any attempt by the Biden administration to advance an unconstitutional agenda,” the post reads.
“They just see it as an easy win,” said Don Haider-Markel, chair of political science at the University of Kansas and an expert on public opinion on LGBTQ issues. “It’s an easy way for them to show that Democrats have just gone over the edge, that there is no limit to how far they will push these radical ideas.”
But some Republican lawmakers say the issue is deeper than that. After seeing similar legislation pursued in other states, South Carolina Rep. Ashley Trantham (R) and 18 other state lawmakers sponsored the Save Women’s Sports Act, which would restrict middle- and high school students to sports that correspond to their assigned sex at birth. The bill, pre-filed in December, has been referred to a committee.
School athletics are “an extremely competitive environment,” said Trantham, whose daughter was a high school basketball player. “If it was my daughter and she needed that scholarship to go to college, it would be very important to me that she was playing on an even playing field.”
Trantham said one of the first people she notified when she decided to file the bill was the head of the LGBTQ advocacy group South Carolina Equality.
“I want to make sure you guys understand this is not me trying to hurt the transgender community,” Trantham said she told him. “This is me trying to protect girls in women’s sports.”
LGBTQ activists and many pediatricians say that the medical treatments transgender youth receive to align their bodies with their gender identity mitigate the physical disparities in athletics. They note that those same treatments — including hormones and puberty blockers — also have also been targets of Republican lawmakers, with about a dozen bills introduced this month seeking to restrict transgender minors’ access to them.
More than 16 states already have instituted laws and guidance that support full inclusion of transgender youth in sports that correspond to their identities, according to GLSEN, an advocacy group for LGBTQ youth.
“I’ve seen arguments that this will be the end of women’s sports,” said Katrina Karkazis, a cultural anthropologist and bioethicist. “If so, it should have ended already.”
Since the Supreme Court ruled in favor of same-sex marriage in 2015, statehouses have launched more than 300 bills seeking to restrict LGBTQ rights, many targeting transgender issues as well as conversion therapy and same-sex adoption, according to the Equality Federation, a national advocacy organization. Some have attempted to criminalize doctors who provide hormone treatment to transgender youth and others mandate written parental approval for teens who want to use a pronoun different from their sex at birth.
Many of the bills use the same language and are written by conservative advocacy groups. Almost all of them have failed in statehouses or are stuck in court litigation.
After Idaho became the first state to institute restrictions on transgender youth athletes and order “sex examinations” before they could play, a federal judge in August granted a preliminary injunction. Judge David Nye wrote: “The state has not identified a legitimate interest served by the Act . . . other than an invalid interest of excluding transgender women and girls from women’s sports entirely, regardless of their physiological characteristics.”
He wrote that being subjected to physical examinations of their gender “is itself humiliating.”
In South Dakota, which has been at the forefront of legislation that limits transgender rights, state Rep. Fred Deutsch (R) sponsored a bill last February that sought to criminalize medical professionals for treating transgender youths with hormone blockers or surgery. Despite the state having a majority-Republican legislature, the bill failed after hundreds of people protested.
In a November interview, Deutsch said he would not pursue any transgender bills this year, and instead would focus on the state’s high coronavirus infection rates. “My focus is on pandemic related issues for 2021. It’s a more urgent need.”
But he later changed his mind, putting forward a bill that would ban people from changing the sex designation on their birth certificates, unless there was a clerical error or a person has ambiguous genitalia.
“Values always matter and there’s a divide in our country over values,” Deutsch said in a phone interview Thursday. “I stood up and said this is not a hate bill. It’s about biology. It’s science. You can’t change your sex. You can look like a boy, you can take hormones and sex operations but it doesn’t make you a boy. Your gender can be a boy, but you can never change your sex.”
Deutsch’s bill has passed the House and is moving to a Senate committee.
South Dakota state Rep. Linda Duba (D), who has consistently voted against legislation that restricts transgender rights, said she was taken aback by Deutsch’s about-face.
“Again? What a waste of time. We need to focus on legislation to help those who are impacted by covid,” said Duba, who said she worries about the stakes of such legislation for a population with a disproportionately high rate of suicide and homelessness. “Why discriminate and focus on a group of people who already feel marginalized? We have so many other problems.”
These state-level legislative efforts come as more than 8 in 10 Americans say they favor laws that would protect LGBTQ people against discrimination in jobs, public accommodations and housing, according to a Public Religion Research Institute 2020 American Values Survey.
But while public opinion polls across the board show support for transgender military service and other transgender rights, support softens when it comes to public accommodations and sports, Haider-Markel said.
“These things make people feel uncomfortable,” Haider-Markel said. “When you combine that with close contact . . . whether it be in bathrooms or in sports, that disgust becomes more threatening.”
But transgender athlete Juniper Eastwood, 23, a cross-country runner, said she hopes public sentiments will soon shift, just as many conservatives have come to accept the gay community.
“It’s just going to take a long time,” she said. “It won’t happen this year.”