State Anti-Transgender Bills Represent Coordinated Attack, Advocates Say
State anti-transgender bills represent coordinated attack, advocates say
Many proposed bans on trans athletes and transition care for minors share identical language.
A group of LGBTQ advocates gather outside the South Dakota Capitol in Pierre on Jan. 26, 2021, to protest a bill that would ban people from updating the sex on their birth certificates.
By Dan Avery
Bills in at least 20 states are targeting the transgender community in what LGBTQ advocates say is an organized assault by conservative groups.
On Thursday, the North Dakota House of Representatives passed a bill that would ban transgender student athletes from joining teams that match their gender identity. The measure, which passed 65 to 26, also calls for withholding state funds from sporting events that allow athletes to play as anything other than their sex assigned at birth. The bill now heads to the state Senate.
Supporters of the bill — including Republican state Rep. Ben Koppelman, its primary sponsor — say they want to protect opportunities for girls in sports, including access to athletic scholarships.
“Some have said this bill just doesn’t follow the science. We’ve got science going back well before the United States that backs this,” Koppelman said in a committee meeting, according to NBC affiliate KFYR-TV. “This isn’t new science. Men and women didn’t just cease to exist. They’ve existed for a long time and we’ve been able to recognize the differences.”
House Minority Leader Josh Boschee, a Democrat, countered that the bill would “codify discrimination.”
“North Dakota transgender youth, you are seen and you are loved by many,” Boschee later tweeted. “This vote is infuriating and we will continue to work to have it defeated in the Senate.”
The same day the North Dakota House passed its bill, the Mississippi state Senate passed its own athletic ban, which now goes to the state House for consideration. Georgia, Kansas, Utah and Tennessee advanced similar legislation last week, as well.
In 2020, legislators sponsored 20 bills to restrict transgender students’ participation in sports, according to the ACLU. At least as many have been introduced this year.
Bills driven by ‘centralized groups’
To date, the only trans sports bill to become law is Idaho’s Fairness in Women’s Sports Act, sponsored by Republican state Rep. Barbara Ehardt. Signed by Gov. Brad Little, a Republican, last March, it mandates that "biological sex" be the sole determining factor for inclusion on athletic teams at public schools and universities.
Ehardt worked with the Alliance Defending Freedom in crafting the measure, The Idaho Press reported. Founded in 1994 by Christian conservatives, the Arizona-based group has provided legal counsel for a variety of efforts to curtail LGBTQ rights, from defending gay-marriage bans to ensuring the right of businesses to refuse LGBTQ customers. Perhaps most notably, the ADF defended Jack Phillips, the owner of a Colorado bakery, Masterpiece Cakeshop, in his 2018 Supreme Court case over his refusal to sell a wedding cake to a gay couple.
Kate Oakley, state legislative director and attorney for the Human Rights Campaign, a national LGBTQ advocacy group, told NBC News that a bill under review in Montana restricting transgender sports participation was also written by the ADF. The Alliance Defending Freedom has been labeled an anti-LGBTQ hate group by the Southern Poverty Law Center, a designation the ADF dismisses as groundless and a smear tactic.
The language in the Idaho and Montana measures is strikingly similar — and interchangeable with wording in proposed sports bans in Mississippi, Louisiana, Arizona, Kansas and elsewhere.
All, for example, include an excerpt from an April 2019 Washington Post opinion piece by tennis legend Martina Navratilova, Olympic track star and NBC Sports analyst Sanya Richards-Ross and Duke law professor Doriane Lambelet Coleman. In it, the three state that “there will always be significant numbers of boys and men who would beat the best girls and women in head-to-head competition.”
The ADF did not confirm that it wrote the Idaho bill or provided template wording for legislation to any state, but Matt Sharp, an attorney for the organization, told NBC News in an email, “As is typical practice for legal organizations, Alliance Defending Freedom is often asked by legislators to review possible legislation and offer advice.”
In February 2016, Sharp claimed “lawmakers in at least five states” had used the ADF’s model legislation to draft so-called bathroom bills, The Washington Post reported. Sharp also said the Alliance mailed template bills to “thousands” of school districts.
“These bills are intended to look constituent-led, but we know it’s driven from these centralized groups,”said Chase Strangio, deputy director for transgender justice at the American Civil Liberties Union
Lawyers for the ADF also filed a motion to intervene in a lawsuitagainst the Idaho bill on behalf of two female runners who lost to Juniper Eastwood, the first transgender runner to compete in NCAA Division 1 cross country. (While the case is being decided, the Idaho law is blocked from being enforced.)
And the ADF is representing three cisgender Connecticut women in a suit claiming they were forced to compete against “biological males” in high school track because the Connecticut Interscholastic Athletic Conference allows transgender students to join the teams that match their gender identity.
The complaint alleges that two transgender sprinters, Terry Miller and Andraya Yearwood, won 15 women’s state championship titles previously held by nine different girls and, from 2017 to 2019, “have taken more than 85 opportunities to participate in higher level competitions from female track athletes.”
“There are real physiological differences between boys and girls that affect athletic performance, such as size, muscle mass and bone density,” Sharp told NBC News. “We’ve seen the harms of allowing biological males to compete against women.”
A December study in the British Journal of Sports Medicine found transgender women were faster and could do more pushups and situps for two years after starting testosterone blockers. But the study’s lead author, pediatrician Timothy Roberts, told NBC News previously that, “at the recreational level, probably one year is sufficient for most people to be able to compete.”
Another voice leading the fight against transgender athletes in sports is Beth Stelzer, a Minnesota-based amateur powerlifter and founder of Save Women’s Sports. According to its website, the group is a diverse coalition looking “to preserve biology-based eligibility standards for participation in female sports.”
On Thursday, Stelzer testified before Utah's House Education Committee in favor of a transgender sports ban in that state. She’s also given testimony in support of similar bills in Minnesota, Montana and elsewhere.
Stelzer told NBC News she works more on gathering supporters to testify than on drafting legislation. “However, I do offer advice about the language used,” she said, adding that she was sad the issue had become “partisan.”
“Males participating in female sports is not about religion or politics. It is common sense,” Stelzer said. “We have women from the left, right and center coming together to preserve female sports across the world.”
Jennifer Wagner-Assali, an orthopedic surgeon and semiprofessional track cyclist, is an ambassador for Save Women’s Sports. She claims she unfairly lost the 2018 UCI Masters Track Cycling World Championship to transgender cyclist Rachel McKinnon, now known as Veronica Ivy. Ivy took gold in the 200-meter sprint and briefly set a world record for women in the 35-39 age bracket, according to Bicycling magazine. Wagner-Assali took bronze.
“All these rules were put into place, basically by stealth,” she told host Julian Vigo this month on the Substack podcast Savage Minds. “Women were not asked their opinion. These things were changed a few years ago, and they’ve just kind of become part of the rule structure. Now they’re starting to be exploited, obviously.”
‘Uncontrolled human medical experimentation’
While athletic bans are the most common forms of legislation targeting transgender individuals this session, a number of states are also considering prohibiting transition-related medical care for minors, some including criminal penalties.
Alabama’s Vulnerable Child Compassion and Protection Act would institute felony charges for health care professionals who performed procedures or prescribed medication “intended to alter the appearance of [a minor’s] gender or delay puberty, with certain exceptions.”
The bill calls puberty blockers and other transition-related treatments “dangerous and uncontrolled human medical experimentation.” It also requires teachers, principals, nurses and other school officials to tell parents if a child believes their gender is different from their sex assigned at birth.
A similar bill in Texas would redefine providing transition-related care to minors as a form of child abuse.
One of the first such bills was introduced last year by South Dakota state Rep. Fred Deutsch, a Republican. Originally, the bill would have made it a Class 4 felony to provide transition-related care to patients 16 or younger, even if they’re emancipated, but the felony charge was eventually amended to a misdemeanor. If it had passed, it would have also allowed those unhappy with their gender-affirming care to sue up until the age of 38, according to South Dakota Public Broadcasting.
In October 2019, three months before sponsoring the bill, Deutsch attended the Summit on Protecting Children From Sexualization in Washington, D.C. Panelists included representatives from the ADF, the Heritage Foundation, the Family Policy Alliance and the Kelsey Coalition, a group of parents who claim their children have been harmed by transgender health care practices. Attendees were given a gender resource guide for parents detailing how to oppose trans-affirming policies in their schools and communities, according to The Washington Post.
“In the fall of 2019, you have ADF, Heritage Foundation and these other groups start getting together and working up templates to ship out to state lawmakers,” Strangio told NBC News. “It was at the end of 2019 when we started to hear about them.”
Deutsch has also said he sent drafts of his bill to legislators in other states considering similar bans, The New York Times reported. But while a similar bill passed the South Dakota House of Representatives by a wide margin, it died in the state Senate.
Some lawmakers are opposing medical treatment for transgender youth with “conscience” bills, like a Kentucky bill that would let medical professionals in the state refuse to perform procedures that violated their religious or moral convictions.
The bill’s sponsor, state Sen. Stephen Meredith, argues it will protect children from “misguided” parents who want to force them to change genders.
"You have a 12-year-old girl who's a tomboy," Meredith told the Senate Judiciary Committee on Thursday, according to The Lexington Herald-Leader. "And her parents, who are misguided, think that she's really a girl trapped in a boy's body. And they don't want to see her go through the rest of her life miserable. So they're going to go and transition her."
"Does the surgeon have the right to say, 'No, I'm not going to do this surgery'?" he asked, according to the Herald-Leader. "So this protects everybody."
Meredith said the language in Kentucky's bill was based on model legislation sent to him by the conservative Kentucky Family Foundation. The foundation’s executive director, Kent Ostrander, confirmed to NBC News that the group worked with Meredith on the bill in the last legislative session.“ The bill is purely designed to protect the conscience rights of medical professionals as they practice their healing arts,” Ostrander said in an email.
Separate conscience bills in South Carolina, South Dakota and Arkansas all contain identical language found in model legislationwritten by Kevin Theriot and Ken Connelly of the Alliance Defending Freedom.
An attempt to ‘sow fear and hate’
Oakley, of the Human Rights Campaign, and other LGBTQ rights advocates say the failure to stop the legalization of same-sex marriage or pass so-called transgender bathroom bills has led groups like ADF to turn their focus toward trans youth. In a statement, HRC called the current raft of transgender-focused bills “simply the latest iteration of their failing fight.”
“Opponents of equality failed to claw back marriage equality and failed in their push for bathroom bills,” the group said. “These bills are not addressing any real problem, and they’re not being requested by constituents. Rather, this effort is being driven by national far-right organizations attempting to sow fear and hate.”
Strangio said proponents of these measures are being disingenuous about protecting children and women.
“They claim children can’t consent to wanting to transition, but the bills all have the same carve-out for performing surgery on intersex infants,” he said. “It’s not about protecting, it’s about normative control.”
As for girls’ sports, Strangio said no state is anywhere near Title IX compliance, “but there’s crickets from supposed champions of women's sports in the GOP.”
“No one is introducing legislation to increase funding to women’s sports or to ensure equal pay for female coaches,” he said. “Instead, they’re fighting hypothetical problems about 14-year-old trans girls.”
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