We need to understand what’s happening to fuel all of these anti-trans bills.
By Zack Ford | The war on trans people’s right to exist has escalated greatly this year in state legislatures. By far, the most popular anti-trans legislation — in terms of both how many bills have been introduced and how successfully they’re becoming law — comes in the form of bills banning transgender student athletes from competing on teams that match their gender identity. And there’s something fascinating we have to reconcile about the success these bills are having this year: conservatives found more success advancing anti-trans discrimination by lowering the stakes of their arguments.
Think about it. Half a decade ago, everything you heard from conservatives was about bathrooms and locker rooms. The narrative was safety: “Women won’t be safe if they have to see a trans person changing!” It was offensive bullshit, of course, but as far as narratives go, “safety” is a pretty high-stakes one. But the new narrative is “fairness” — in sports of all things — and it’s a much lower-stakes claim. And, perhaps counterintuitively, I think that’s why it’s been more successful.
Many of the bills we’re also seeing are attacking the health care that trans kids deserve, which is very dangerous and high-stakes, so I don’t want to ignore it. But I’ll ask you to join me in setting those bills aside for a moment to consider just where this surge of anti-trans sports bills is coming from and why it’s so effective. At least 33 different states have seen at least one of these bills introduced, and seven states now have bans in place, including West Virginia, where the ban just became law this past week.
There was previously only one ban in place. Idaho was the first state to pass such a ban into law just last year, and Idaho’s ban is not even currently enforceable thanks to the ACLU’s quick victory in court challenging it. From one state in 2020 to at last seven so far in 2021 is a huge escalation, and we have to examine what’s happening there, because these sports bills are gateway bills. As we’ve already seen at a rapid pace in Arkansas, one kind of anti-trans discrimination begets another (including the bills targeting kids’ health care and the bathroom bills of yore).
So how is this lower-stakes argument for anti-trans discrimination accomplishing so much more for conservatives?
It’s because some trans girls won their races. Some Black trans girls.
Yeah, race is a factor too. Because of course it is.
If you think back to the surge of anti-trans advocacy we saw after the Supreme Court’s marriage equality decision in 2015, the focus was almost entirely on bathrooms and locker rooms. Overblown stories about simply seeing trans people in these spaces (like the Planet Fitness case in Michigan) were used to demonize all trans people (though really just trans women) as perverts and predators and justify discrimination against them. This arguably culminated in early 2016 with North Carolina’s passage of HB2, which mandated discrimination against trans people in public places.
While the effort to demonize trans people has by no means dissipated, the focus on such “bathroom bills” has seemingly diminished since then.
Before even getting into the reasons why that might be, it’s important to note that these anti-trans campaigns are not organic. More than any other conservative organization or individual, the Alliance Defending Freedom (ADF), an anti-LGBTQ hate group, is controlling the narrative and approach of anti-LGBTQ litigation and legislation. My buddy Josh Israel profiled ADF in 2014 as “The 800-Pound Gorilla of the Christian Right,” and it’s only grown since then. The strategic shifts we’ve seen in the attacks on trans people can easily be connected to ADF’s successes and failures.
As to why we’ve seen less of a push for bathroom bills, the first and foremost reason is surely how monumental the backlash to HB2 was. The bill itself was a reaction to Charlotte becoming North Carolina’s first city to pass LGBTQ nondiscrimination protections at the local level — you know, the kind of inclusive protection that dozens of major cities and states have that have resulted in none of the consequences conservatives fear-monger about. HB2 both banned such protections in North Carolina cities and prohibited trans people statewide from using public facilities consistent with their identities. Major corporations, artists, and sports leagues punished the state so heavily that HB2’s major champion, Gov. Pat McCrory (R), lost reelection in 2016 even as Donald Trump won North Carolina’s electoral votes.
Newly elected Gov. Roy Cooper (D) quickly worked to repeal the ban on trans people using facilities in 2017 and set an end-date for the ban on municipal LGBTQ nondiscrimination protections. When that ban finally lifted last December, Chapel Hill, Carrboro, Hillsborough, Durham, Greensboro, and Orange County all immediately followed Charlotte’s lead and passed their own protections. As a law, HB2 is now history, and the state has better LGBTQ protections than it did before its passage. It’s no surprise that conservatives have at least rethought their approach on such blatantly discriminatory bills given the massive net loss.
Secondly, Trump’s election helped ease the pressure conservatives likely felt to push for discriminatory policies at the state level by reversing all the federal protections introduced by the Obama administration. Education Secretary Betsy DeVos reversed the Title IX guidance protecting trans students, Attorney General Jeff Sessions reversed the Title VII guidance protecting trans workers, HUD Secretary Ben Carson reversed the guidance protecting trans people seeking shelter, and Trump tweeted out a ban on trans military service — to name just the most prominent examples. There was no longer a “threat” to conservatives that the whole nation was going to be obligated by the federal government to abide by these LGBTQ protections.
Thirdly, ADF and similar conservative legal groups were losing a lot of their bathroom cases in court. ADF has a two-pronged approach; it helps draft, lobby for, and defend discriminatory bills, but it also challenges the laws that do protect LGBTQ people in court and defends schools and employers that want to keep discriminating. But there was a big wave of victories in federal courts for transgender students seeking or trying to maintain equal access to facilities in their schools, including in Wisconsin, Illinois, Ohio, and Pennsylvania. The Supreme Court notably refused to hear ADF’s case in Pennsylvania after it lost its push for discrimination in the Third Circuit.
But the Supreme Court did hear a trio of cases about employment discrimination, including one about a trans woman, and delivered a massive defeat to ADF in Bostock v. Clayton County. Federal law officially now protects trans people from discrimination.
It’s no surprise we now see a new raft of bills with a new strategy, one that capitalizes on a case ADF found that follows a rather different narrative.
There’s a lawsuit ADF filed in 2016 that never went anywhere, but that I’ve never forgotten.
Targeting a high school in the small city of Virginia, Minnesota, the lawsuit was ostensibly one of ADF’s many attempts to reverse a school’s inclusive policies for transgender students. It made all the usual false claims about “safety and privacy” for cis girls, but it also directly attacked “Student X,” a real trans student enrolled at the school.
You can go back and read my full reporting on the suit, but I want to draw your attention to this specific paragraph from the complaint:
Student X began dancing in the locker room while Girl Plaintiff A and others prepared for track practice. Student X would dance in a sexually explicit manner — “twerking,” “grinding” or dancing like he [sic]was on a “stripper pole” to songs with explicit lyrics, including “Milkshake” by Kelis. On at least one occasion, Girl Plaintiff A saw Student X lift his [sic] dress to reveal his [sic] underwear while “grinding” to the music.
Before we get to the Connecticut case, let’s talk broadly about sports for a minute.
Objectively, sports aren’t fair.
We go to a lot of trouble to convince ourselves that they are, but they never truly are. Each person’s biology is different, so on a fundamental level, we can only approximate fairness.
We do that in a lot of ways. Gender is obviously one way we divide up sports in an attempt to make the competition more fair. Age is another factor, where we have everything from junior varsity to senior citizen leagues — to say nothing of sports like gymnastics where competitiveness is by default limited to a very narrow age range. Some sports like wrestling and boxing specifically consider physical attributes like weight. Through rules about steroids and other performance-enhancing drugs, we set limits about what exactly a person can do to their body to achieve a competitive advantage. And in college sports we even separate athletes into divisions with the primary difference being whether students can receive athletic scholarships, which —though we don’t generally think about it — inherently introduces all kinds of factors like career goals and finances into determining the fairness of athletic competition.
In short, a lot of thought has gone into how to approximate fairness in athletics. But we also acknowledge that we can only make things so fair. For example, we can’t really do anything about Michael Phelps. From his torso-to-leg height ratio to his massive wingspan to his double-jointed ankles and elbows to his reduced lactic acid creation, Phelps’ body naturally excels at swimming, and he capitalized on that with discipline and drive. When he swims, we all just stand in awe of what this cis white guy with a ton of biological advantages is capable of; he’s the best and hooray for what the human body can achieve! Of course he’s allowed to compete; his advantages don’t fit any of the disqualifying criteria we’ve established.
But not everyone just gets to be the best when they excel in athletics. In a lot of other cases, when someone does well, it raises suspicion instead of applause. Sports do not exist in a bubble and are not exempt from societal forces. The question “Why did that person win?” quickly leads to the question ‘“Did they have an ‘unfair’ advantage?” and attempts to identify what sets them apart. When trans people excel, just like when women excel and when people of color excel, such suspicion around their success very easily and inevitably turns into a proxy for discrimination against them. It’s one thing if someone is allowed to compete; it’s quite another if they’re able to win.
Terry Miller and Andraya Yearwood were able to win. Both Black and both trans young women, they won a combined 15 track championships in Connecticut from 2017 to 2019. And ADF turned them into the symbol of the alleged unfairness of transgender inclusion in sports because of the opportunities they were supposedly taking away from cis white girls.
It’s no surprise that the question of whether it’s fair for trans people to compete has been asked. But it’s also been answered — for some time now. The International Olympic Committee, the NCAA, and K-12 athletic leagues across the country have long had policies allowing trans people to compete according to their gender identity with simple caveats regarding how far along they must be in their transitions.
That’s because studies have repeatedly found that the changes trans people make to their bodies set them up for fair competition with their cis peers. Trans women, the most common concern, lose most of the advantages often associated with male bodies. I really appreciate how Joanna Harper, author of some of these studies, framed the debate in a recent interview with OutSports (emphasis added):
For those who suggest trans women have advantages: We allow advantages in sport, but what we don’t allow is overwhelming advantages… Trans women also have disadvantages in sport. Our larger bodies are being powered by reduced muscle mass and reduced aerobic capacity, and can lead to disadvantages in quickness, recovery, and a number of other factors.
The bottom line is, we can have meaningful competition between trans women and cis women. From my point of the view, the data looks favorable toward trans women being allowed to compete in women’s sports.
To the extent that any sports are “fair,” allowing trans people to compete is fair enough. And there are trans people competing all over at varying levels of competition that we never hear anything about. There’s nothing to hear, and there are no complaints about their participation, because they aren’t winning.
But Miller and Yearwood’s ability to win — as both trans and Black in the very white state (75%) of Connecticut — drew attention. Then all ADF had to do was find a couple of cis girls who didn’t like losing to them to file a lawsuit attempting to overturn the Connecticut Interscholastic Athletic Conference’s entire inclusive policy for all trans athletes in the state. The message was clear: If inclusion means these two trans athletes can win, then no trans athlete should be allowed to compete.
At this point, I want to send you on a detour to read a recent piece by the brilliant Derrick Clifton. In it, he connects the way Miller and Yearwood have been targeted for their bodies to the long history of cis Black women being policed in the same way, such as Serena Williams, as well as Black women who are intersex or have other conditions like hyperandrogenism, including the saga of Caster Semenya. As he writes, “Black women in sports — whether they are cis, trans, or intersex — constantly encounter shifting rules and expectations as a reprimand for their successes.”
One of the things I didn’t even know until I read Derrick’s piece is that Chelsea Mitchell, one of the cis white girls who joined ADF’s suit, actually beat Miller in their last two races and had earned her own state championships. So the portrayal that these Black trans athletes were always superior and depriving the cis white girls of victories and scholarships wasn’t even true; Miller and Yearwood were merely competitive. It’s not a detail that has come up often.
The Biden administration had already withdrawn the support for the suit offered by the Trump administration, and about a week ago, a federal judge tossed ADF’s suit entirely. It was moot, he ruled, because Miller and Yearwood aren’t even students anymore and there were no other winning trans athletes to substitute into the case. Trans inclusion in Connecticut’s school sports appears to be safe for now.
But even if the case ends there, the damage has been done. Literally every time this issue is now discussed or written about, photos of these two Black trans girls become the symbol of unfairness in athletics. They are likewise the scapegoats for all of this new legislation — and it’s literally because there are no other examples.
In state after state, the lawmakers advancing these anti-trans sports bills have been asked if they can identify a single example of a trans student athlete in their state who could even be accused of benefiting from an unfair advantage. As this CNN report from this week highlights, they repeatedly answer “no” then pivot to highlighting the Connecticut case.
In an interview with the conservative site CNSNews this past week, ADF Legal Counsel Christiana Holcomb claimed, “We have seen increasing examples across the country of males [sic] dominating girls’ athletic competitions when competing as females, capturing championships and shattering long-standing female track records.” It’s telling that she specified track (as opposed to any other sport) but provided no “increasing examples” as to who or where these trans athletes are, and it’s no coincidence that the article featured a photo and two different videos of Miller and Yearwood.
Shortly after West Virginia Gov. Jim Justice (R) signed his state’s anti-trans sports bill into law this week, MSNBC’s Stephanie Ruhle asked him the same question about why this was no necessary. He had no answer, and Ruhle proceeded to read him for filth about all of the other concerns he could be prioritizing in West Virginia instead of this purely discriminatory bill. It’s worth clicking through to watch the clip:
This is a must-watch exchange.
The problems that anti-trans politicians say we need to address are manufactured. The anguish they are causing trans kids and their families is very real. pic.twitter.com/M4JFeN1dod
— Human Rights Campaign (@HRC) April 30, 2021
The pure cruelty of these bills is obvious. But the question remains: Why do conservatives feel less risk advancing them — and why have more of them prevailed — compared to follow-up bathroom bills? I have a theory.
Part of it, as I said at the top, is that the stakes feel lower. Thus, conservatives can try to sell the message that the discrimination is somehow less cruel or less consequential than, say, the outright banishment from public spaces dictated by bathroom bills. This is just about specific participation in sports, they can claim, and it’s only about fairness in competition, not about discriminating against trans people. It’s a false narrative, to be clear, but it’s one they can market differently than trying to paint all trans women as predators while erasing trans men from existence altogether.
But I also think there’s something a bit more insidious at work than just a less-discriminatory-sounding message, and it speaks to why these sports bills are the new vanguard for anti-trans legislation and the way they open the door for even worse bills.
The premise of all anti-trans prejudice is to convince people to reject the legitimacy of transition: Ignore the decades of research and 95+% success rate of affirmative treatment and surgeries; ignore the mental health benefits of transitioning and mental health consequences of not transitioning; and ignore the very reality of the lives transgender people live and instead regard them only as the sex they were assigned at birth. Any skepticism of transitioning is a victory for transphobia.
In the context of sports, conservatives can carve out this diabolical little niche that convinces people that even if transgender people transition, they’re still going to have these physical differences that they can’t change. Those differences — those so-called “advantages” — are an essential part of their existence, and no matter what gender defines how they’re living their lives, it’s unfair to let them compete as such because of those relic differences. It’s an emphasis on the imperfections of transition, a tether that ties trans people to their sex assigned at birth without overtly rejecting the legitimacy of their transition.
Like everything else in transphobia, it doesn’t even have to be true; it only has to be believable by people who don’t have any foundation for understanding trans people’s experiences. Competitive advantages based on race aren’t true either, but a lot of people still believe in such myths as well, which compounds the believability that these Black trans girls are somehow undeserving of their success and a barrier to cis white girls’ apparently more deserving success.
What this results in is that many people who might otherwise be supportive of protecting trans people from discrimination can be convinced to make a small exception for sports under the guise of “unfairness” that’s no fault of the trans athletes themselves. A perfect example is Caitlyn Trump-would-be-good-for-trans-people Jenner — whose contributions to the trans community have largely been in spite of herself — saying this weekend that she doesn’t think trans inclusion in sports is fair. Again: It’s a false narrative, but a sellable one.
These anti-trans sports bills thus achieve the goal of instituting transphobia and rejecting the full legitimacy of trans identities in our laws while simultaneously appearing not to engage in overt transphobic discrimination.
But hey, now that conservatives already have folks thinking about trans kids and already signing onto one form of discrimination, they have a receptive audience for selling their other false narratives about what health care should look like for trans kids. And from there, they can continue to escalate back toward the ultimate goal of bathroom bills. It’s exactly what happened in Arkansas over the past couple months:
By lowering the stakes from safety to fairness, conservatives found an easier entry point to get more people on board with anti-trans regulations. Their goals haven’t changed, but they found a new approach to get their foot in the door for mandated discrimination. These anti-trans sports bills are clearly a gateway to additional transgender discrimination, and they should be subjected to the exact same level of backlash as the worst discriminatory bills we can imagine.
In other words, the stakes aren’t lower. They’re as high as they’ve ever been for trans people’s right to exist as themselves in this society of ours. “Fairness in sports” is just a façade for justifying a form of transphobia.
And a final thought: We have to own that true inclusion includes an equal opportunity to win. Any trans athlete who has the bravery to compete and the discipline to succeed deserves any championship title that they earn — fair and square.
I’ll be revisiting the legislation that’s been targeting health care for trans youth in a future newsletter. Stay tuned.
Zack Ford is the former LGBTQ editor at ThinkProgress.org and currently serves as press secretary at Alliance for Justice. His views are his own.
The preceding piece was originally published at Fording the River Styx and is republished by permission.
