Laws banning transgender student athletes splinter GOP

·11 min read

Republicans saw a ready-made wedge issue to rally the GOP’s base when, soon after Joe Biden took office, he moved to expand protections for transgender people, including in school sports.

The president and his Democratic allies, conservatives said, were ruining women’s athletics, and Republican lawmakers across the country advanced a raft of bills designed to keep transgender women and girls from playing on female teams.

Yet what once promised to be a galvanizing force for the Republican Party ahead of the midterm elections and 2024 has instead devolved into a source of division within the GOP, hobbling one potential presidential contender — Kristi Noem — and pitting other Republican governors against lawmakers of their own party.

First Utah’s Republican governor, Spencer Cox, bucked the GOP’s conservative base, declaring in February that he wouldn’t sign a bill banning transgender women and girls from playing female sports. Then Noem, the South Dakota governor, waffled on transgender legislation in her state, infuriating conservatives. In late April, the Republican governor of neighboring North Dakota, Doug Burgum, vetoed a similar bill.

Most recently, Caitlyn Jenner, a California Republican who announced her bid for governor last month, voiced support for the bans. The former Olympic gold medalist, who came out as transgender in 2015, told TMZ that banning transgender women and girls from competitive sports was "a question of fairness."

Far from a unifying new fixture in the GOP’s culture wars, the question of how to treat transgender student athletes is instead inflaming rifts within the party — and quickly becoming a litmus test for Republicans who aspire to higher office.

“For those who dream about a 2024 future, starting with Kristi Noem,” said Bill McCoshen, a Wisconsin-based Republican strategist, “you don’t want to be in a position to be against your own party, which all of those governors have done so far.”

He said: “It will help certain voters decide who the conservatives are in the race.”

The crush of legislation advanced by Republicans in states throughout the country blocking transgender youths from joining sports teams that match their gender identity has been extraordinary. Mississippi, Arkansas, Tennessee, Alabama and West Virginia have all passed such bans this year. Meanwhile, several other bills in states with Republican-dominated legislatures and GOP governors are moving toward passage. Bills in states where Republicans have a government trifecta — Florida, Montana, Oklahoma and Texas — have already cleared at least one chamber, though efforts in Texas appear to be headed for defeat.

The Human Rights Campaign, a national LGBTQ advocacy group, is tracking at least 66 state bills that restrict transgender youths’ access to sports teams, part of a wave of legislation that advocates say has been introduced and, in some cases, adopted with unprecedented speed.

“This is one of the worst — maybe the worst — state legislative sessions we’ve had for transgender people,” said Rodrigo Heng-Lehtinen, deputy executive director of the National Center for Transgender Equality.

The issue has made unlikely allies of some women's advocacy groups and social conservatives, who have jointly pushed states to adopt laws restricting participation to athletes assigned female at birth. Though advocates have denied accusations that the state bills are a coordinated effort, groups like the Alliance for Defending Freedom have circulated principles they believe lawmakers should adopt.

LGBTQ advocacy groups, including the ACLU, have responded by recruiting transgender youth and their families to speak at press conferences and testify in state capitals, aiming to highlight for both lawmakers — and the public — that these bills ultimately ostracize real students.

“They’ve had no compunction in putting trans youth and their well being front and center in order to try to score political points,” said Cathryn Oakley, state legislative director at the Human Rights Campaign. “When people understand what has happened, they are going to respond very negatively, and the folks who have thought that this was a winning political strategy are very quickly going to learn that they were wrong.”

For proponents of the bills, the expectation was that the dual focus on transgender people and women’s sports would not only rally the conservative base, but also appeal to suburban women who fled the Republican Party during the Trump era.

In late February, at the Conservative Political Action Conference, former President Donald Trump warned attendees that Democratic policies to protect transgender people from discrimination could “destroy” women’s sports. Potential 2024 candidates like Sens. Tom Cotton (R-Ark.) and Ted Cruz (R-Texas) echoed that rhetoric during a Judiciary Committee hearing on the Equality Act in March. Cruz argued that the federal legislation, if passed, would effectively eliminate girls sports.

In an interview shortly before Arkansas Gov. Asa Hutchinson signed into law a transgender sports ban in March, Republican state Attorney General Leslie Rutledge told POLITICO the focus was maintaining a fair and level playing field for girls. But she also nodded to a political calculation.

“For decades, we have talked about how the liberal left does not view women as anything other than a voting bloc, and they treat women as single-issue voters,” Rutledge said. “Well, now, as it turns out, it’s actually Republicans who have … been supporting women and their rights, and this particular issue highlights that.”

The conservative group Heritage Action for America pointed to Biden’s executive order preventing discrimination on the basis of gender identity or sexual orientation as a rallying force against transgender girls competing in girls sports. In 2019, the group conducted a poll on a variety of social issues, including transgender athletes. The group’s survey found that 62 percent of Americans opposed transgender girls being permitted to play high school and amateur sports on girls teams.

“We really go where the movement is, so it’s more about what are the American people talking about, what do they care about, what are they engaged in?” said Jessica Anderson, executive director of Heritage Action. “I don’t think we should be afraid to tackle and discuss complex issues that are about civil society and that reflect the biology of a girl and the biology of a boy. Conservatives shouldn’t run away from that.”

'You guys did a bad job'

But even among Republicans, public polling is far more mixed, with one recent measure finding that while Republican voters overwhelmingly say transgender students should not be allowed to play on teams that match their gender identity, they do not support legislation enforcing a ban.

In addition, Republican governors have come under pressure from corporate America and the NCAA not to enact discriminatory bills. Noem, who issued a partial veto of a transgender sports ban before signing weaker executive measures, told Fox News’ Tucker Carlson under blistering questioning last month that she feared the NCAA would “bully” South Dakota. She even suggested the NCAA would pull tournaments from the state if a ban was enacted.

When Carlson accused Noem of “caving” to the NCAA, she said: “We’re a small state, Tucker. We’ve had to fight hard to get any tournaments to come to South Dakota.”

Her concerns were not empty. In an April 1 letter to HRC President Alphonso David, NCAA President Mark Emmert expressed concern over “the numerous bills that have been filed across our country related to sport participation.”

“[T]his legislation is harmful to transgender student-athletes and conflicts with the NCAA’s core values of inclusivity, respect and the equitable treatment of all individuals,” Emmert wrote. “The NCAA continues to closely monitor and assess state bills and federal guidelines that impact student-athlete participation.”

Still, Noem came under fire from conservatives who accused her of both going back on her word and abusing her power as governor. Headlining a fundraiser for the Kansas Republican Party last month, she was compelled to defend her position to Republican activists. And she is still suffering for her position in her home state. South Dakota state Rep. Rhonda Milstead, who sponsored the bill that cleared the legislature, said she was shocked Noem sent it back with recommended changes.

Indeed, Noem's partial veto was a walkback from her earlier stance. On International Women’s Day, March 8, Noem tweeted that her state was celebrating “by defending women’s sports!” “I’m excited to sign this bill very soon,” she wrote of Milstead’s bill after it cleared the state Senate. But then she partially vetoed the bill and asked lawmakers to exclude collegiate sports for fear of angering the NCAA.

“It’s disappointing that somebody who was so excited to sign something would come back and say that it was poorly written,” said Milstead, who insisted the bill was well vetted and months in the making.

Milstead said Noem didn’t participate in any discussions when lawmakers reached out on the front end before the bill was introduced. And her veto, Milstead added, sent the message to the legislature that “you guys did a bad job, but I can do a better job.”

“Style and form is your punctuation, your grammar, maybe a code change,” Milstead said, explaining the governor’s veto. “It’s not content. It’s overreach on the part of the executive branch.”

Instead, Noem signed two executive orders in March in both K-12 and college athletics ordering that “only females, based on their biological sex, … shall participate in any girls’ or women’s athletic event.” In a statement, Noem suggested her executive actions were a temporary fix, noting she would work with Republican leaders to schedule a special legislative session to tackle this issue and others.

To some traditionalist Republicans, the entire fight has, if not self-injurious, been a waste of time.

“It’s just silly,” said Sean Walsh, a Republican strategist who worked in the Reagan and George H.W. Bush White Houses. “Of the great political issues and great outrages of our time, this one just doesn’t hit the meter, you know?”

With all of the other issues that Republicans could be talking about, he said: “I just don’t see the entire world clamoring over transgender athletes in sports … I just think it’s a lot of time and effort for not really much of an issue.”

'It's a tragedy'

Supporters of the legislative push to restrict teams based on sex often point to a highly charged legal battle in Connecticut, where three high school runners sued the state last year for allowing transgender athletes to compete based on their gender identity. The student athletes argued they were denied titles and athletic opportunities as a result, though one of the runners subsequently clinched a state title and two now run for college teams.

Last year, Idaho became the first state to pass a law restricting transgender women and girls from participating in women's sports. The law has since been tied up in legal battle that could have repercussions for those states passing bans of their own.

The Connecticut case was spearheaded by the Alliance for Defending Freedom, a conservative advocacy group that has been pressing for states to pass bills restricting transgender athletes. Since then, ADF has advocated for states to adopt legislation that divides teams from kindergarten through college based on sex assigned at birth and provides athletes with legal recourse if schools impose other policies, said senior counsel Matt Sharp.

ADF emphasizes those points when legislators ask for input on their legislation or when it's asked to testify at hearings around the country, Sharp said.

“There's just a real desire among a lot of legislators to take just very meaningful, but common sense, steps to preserve female sports while still allowing students to fully compete,” Sharp said. “Not trying to deprive opportunities for anyone, but really preserving those important, vital opportunities for female athletes.”

But in the sports world, some people wish the Republican Party would stop politicizing the issue altogether.

The Women’s Sports Policy Working Group, an organization founded by former athletes and sports administrators, advocates for finding a middle ground that preserves female sports without excluding transgender athletes. The group argues for allowing youth to play on teams that match their gender identity before puberty and, in later years, imposing rules that account for physiological advantages to being born male.

“I hate to say this: I really think sport is being used, in a way, as a wedge,” said Donna de Varona, a two-time Olympic gold medalist who co-founded the group. De Varona said LGBTQ advocates are too willing to scrap decades of progress in women’s sports, while conservative groups have latched onto the issue to stifle transgender equality.

“It’s a tragedy, what’s happening,” de Varona continued. “And we foresaw it and that’s why we wanted the middle ground. I think everybody wins if during the passage of the Equality Act, which is what this is all about, we carve out language to protect the intent of Title IX.”

David Siders contributed to this report.

CORRECTION: An earlier version of this report misstated the first to pass a law restricting transgender women and girls from participating in women’s sports. That state was Idaho.

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