Conservatives want to ban transgender athletes from girls sports. Their evidence is shaky.

·21 min read
Conservatives want to ban transgender athletes from girls’ sports. Their evidence is shaky.
Conservatives want to ban transgender athletes from girls’ sports. Their evidence is shaky.

As the Arizona Legislature considered barring transgender students from girls and women’s sports last year, the bill’s sponsor zeroed in on the testimony of one high school softball player.

Grace Waggoner told lawmakers in February 2020 that her team had lost the first state tournament game it had played in decades to an opponent with a transgender player.

She blamed an “unfair” Arizona Interscholastic Association policy that allows students to join teams consistent with their gender identity after going through a review. Waggoner offered few details on the athlete’s impact on the game, but bill sponsor Rep. Nancy Barto accepted it as evidence of a problem in her state.

“I had read stories about this happening in other states,” Waggoner told lawmakers, “but I never expected it would happen at my school.”

Only, it hadn’t.

The game Waggoner referenced in her testimony turned out to be a state tournament play-in game in 2019 that Scottsdale Christian Academy lost to Heritage Academy, 16-6. Heritage Academy coach Steve LaDrigue said his team did not have a transgender player.

What Waggoner didn’t say is that she’s the daughter of Kristen Waggoner, general counsel for Alliance Defending Freedom – a conservative, legal nonprofit that has pushed transgender sports bans in states across the nation.

When pressed for details about the game, an ADF spokesperson said in an email, “The widespread understanding on the team – including the coach, parents, and players – was that the athlete was male.”

LaDrigue guesses the suspicion fell on the team’s catcher, his daughter, because she has short hair.

“That’s disappointing because apparently it’s rumors or speculation or excuses that somebody has made,” LaDrigue said. “But it’s not really fair to my athletes.”

Grace Waggoner’s story served as a useful example for Barto, who also cited a lawsuit regarding two transgender track athletes in Connecticut that ADF filed the day before the Arizona hearing.

Across the nation, state lawmakers supporting transgender athlete bans have painted a picture that girls sports teams will be overrun by athletes with insurmountable physical advantages. But a USA TODAY investigation of the lobbying effort shows that narrative has been built on vague examples that have been overstated or are untrue, and lawmakers have accepted them as fact with little effort to verify their accuracy.

The more than 70 bills lawmakers have offered in at least 36 states would suggest a bigger problem facing girls sports, but that didn’t check out either. Instead, USA TODAY could find few transgender athletes participating and even fewer complaints about them.

In South Dakota, the sponsor of a bill said a transgender girl who played basketball was “consistently scoring 25 points above females” in high school and that the Sioux Falls district alone had three transgender athletes competing in 2019. But the state association responsible for approving participation of transgender athletes says only one transgender girl has competed since 2013, and she was an average athlete who didn’t live in Sioux Falls.

In Connecticut, the cases of two transgender runners who won 15 state titles has been the primary, and often sole, example cited by lawmakers around the country. But legislators leave out context that those athletes did not win all their races and are not competing in college, counter to the claims that the runners took recruiting opportunities from other athletes.

In Montana, June Eastwood was portrayed as a threat to women’s records after she came out as transgender. But the times she ran on the University of Montana’s women’s cross country and track teams after a year of hormone therapy didn’t come close to her times on the men’s team, to dominating the competition or to breaking any records.

University of Montana runner June Eastwood was the first transgender athlete to compete in NCAA Division I cross country.
University of Montana runner June Eastwood was the first transgender athlete to compete in NCAA Division I cross country.

Arizona’s bill is part of a push by conservative political groups to exclude transgender girls and women from participation in sports teams consistent with their gender identity. Alliance Defending Freedom has spearheaded the effort, filing lawsuits, writing model legislation and providing hearing testimony.

“It is our litigation that has launched people saying, ‘Wow, this is going on. I’m going to check into it more,’” Kristen Waggoner said. “And they’re seeing it’s destroying fair competition.”

A majority of states introduced similar bills this year and seven have signed them into law, which Kristen Waggoner said was a grassroots response to ADF’s Connecticut lawsuit.

But in states around the country, ADF pushed the bills.

“The lack of examples just goes to show that they’re grasping for straws here,” said Chris Mosier, a U.S. triathlete and transgender advocate. “There is not a problem, and there is not a problem at the scale they’re trying to make it. There’s not a problem that would warrant any types of laws against these young people.

“Their entire argument here is based on myths, misconceptions and stereotypes, not on anything that’s actually happening in our country or around the world."

ADF, bill sponsors and supporters say their bills are needed to preserve fairness in girls and women’s sports, asserting that transgender girls are males who should compete only on boys or co-ed teams and that the threat of one girl losing an athletic opportunity justifies the legislation.

“In short, if males compete in girls’ events after puberty, equally gifted and dedicated female athletes simply can’t win,” ADF argued in its lawsuit in Connecticut.

Supporters of the bans say that policies that allow transgender athletes to compete on girls teams violate Title IX, the nearly 50-year-old law that bars discrimination “on the basis of sex” in educational institutions receiving federal funds.

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But this month, the Department of Education decided that Title IX protects transgender and gay students.

“The narrative that they’re focused on, which is ‘we're trying to protect women's sports,’ directly undermines the existence of transgender people,” said Alphonso David, president of the Human Rights Campaign. “What they're effectively trying to say is … we will refuse to allow you to participate in sports consistent with your identity, because we don't think that you actually exist as a trans person.

“They're not trying to regulate high school sports because there is no problem.”

The Connecticut case

With few examples to point to, ADF and sponsors of the bills have leaned heavily on the organization’s lawsuit in Connecticut – one presented largely without context in legislative hearings around the country.

The day before Grace Waggoner testified in Arizona, ADF filed a federal complaint challenging a Connecticut Interscholastic Athletic Conference policy that allows transgender students to participate on teams according to their gender identity. It brought the case on behalf of four high school runners who are cisgender, meaning their gender identity matches the sex they were assigned at birth.

Between them, high school runners Andraya Yearwood (right) and Terry Miller (left) won 15 Connecticut girls' track titles from 2017 to 2019. A federal judge threw out a lawsuit that challenged the state athletic association rules that allowed them to compete.
Between them, high school runners Andraya Yearwood (right) and Terry Miller (left) won 15 Connecticut girls' track titles from 2017 to 2019. A federal judge threw out a lawsuit that challenged the state athletic association rules that allowed them to compete.

Those athletes said competing against two transgender runners deprived them of competitive opportunities, state titles and chances to be recruited to compete in college. Between them, Terry Miller and Andraya Yearwood won 15 individual state championships from 2017 to 2019.

High school track athletes Alanna Smith, left, Selina Soule, center, and Chelsea Mitchell were the original plaintiffs in a lawsuit the Alliance Defending Freedom filed in February 2020. They sought to block a state policy that allows transgender athletes to compete in girls sports.
High school track athletes Alanna Smith, left, Selina Soule, center, and Chelsea Mitchell were the original plaintiffs in a lawsuit the Alliance Defending Freedom filed in February 2020. They sought to block a state policy that allows transgender athletes to compete in girls sports.

ADF said that in allowing transgender students to compete with girls, “Plaintiffs and other girls are forced to step to the starting line thinking, ‘I can’t win.’ ‘I’m just a girl.’”

But, advocates said, even ban supporters’ top example leaves out facts.

One of the plaintiffs, Chelsea Mitchell, went on to beat Miller three times after the lawsuit was filed. Indeed, each of the three original plaintiffs beat either Miller or Yearwood – or, in Mitchell’s case, both – in state championship races.

Mitchell, who herself won 10 individual state titles, and another plaintiff, Selina Soule, have since graduated. Soule opted out of her college’s track and field season, and Mitchell is competing in college. Miller and Yearwood, who the lawsuit claimed took away recruiting opportunities from the plaintiffs, are not.

“What people get wrong is that they are only looking for the highlights, for the victories not taking into account all of the times the athlete doesn’t get to the podium,” said Mosier, the triathlete.

A federal judge dismissed the case as moot in April since Miller and Yearwood had graduated and the remaining plaintiffs could not show they will face a transgender athlete. ADF is appealing.

A tiny fraction of athletes

Although they're small in number, transgender athletes are competing – with little controversy.

USA TODAY’s survey of high school associations found that 14 states had records of as many as 65 transgender girls and as many as 98 transgender boys, whose athletic participation these bills largely would not restrict.

Some states gave imprecise numbers, so USA TODAY counted the maximum possible total. Most states gave numbers dating from 2016, but some go as far back as 2013. Roughly 30 transgender athletes competed during this academic year.

While some states couldn’t provide information because their policies prohibit transgender students from competing on teams that don’t match their birth certificates, others allow it and do not track it.

Students in the 14 states that had records of transgender athlete participation filled more than 2.1 million roster spots on high school teams in 2018-19, according to the National Federation of State High School Associations, so even if all of the athletes USA TODAY found in its survey participated that year, transgender students would represent a tiny fraction overall.

“It’s not well tracked,” said Mosier, “and it hasn’t been well tracked because, quite frankly, it hasn’t been an issue.”

Kristen Waggoner and ADF argue that it is. During an interview, she asserted with few details that her daughter had also faced a transgender athlete in soccer.

“We’re witnessing it regularly,” Kristen Waggoner said. “The moms, we have plenty of discussions about it.”

But that isn’t borne out by the state’s numbers.

The Arizona Interscholastic Association estimated two transgender girls have been approved to participate since 2015. By comparison, girls in Arizona claimed nearly 53,000 roster spots in 2018-19, according to the National Federation of State High School Associations.

High school athletic associations surveyed by USA TODAY reported receiving just two complaints about transgender participation since 2016 – one in Texas and another in Hawaii.

Pressed by other lawmakers, sponsors of the bills could not find complaints about existing policies. The Associated Press surveyed sponsors in more than 20 states, and hardly anyone could point to a case in their state that their legislation would address.

More often than not, legislators failed to provide examples from their states in hearings or to USA TODAY.

Of those who did, several lawmakers cited inaccurate information.

Montana State Rep. Rhonda Milstead sponsored the state's bill to ban transgender girls from competing on girls' sports teams.
Montana State Rep. Rhonda Milstead sponsored the state's bill to ban transgender girls from competing on girls' sports teams.

Rep. Rhonda Milstead, who sponsored the bill in South Dakota, said that the Sioux Falls school district had three transgender athletes competing on girls teams in 2019 and described one who dominated in basketball. Asked who these players were, she said, “I do know names but they’re under 18.”

These figures don’t match those kept by the South Dakota High School Activities Association, which said it has had only one transgender girl compete since 2013. That student didn’t live near Sioux Falls and generally performed like an average high school female athlete, said Dan Swartos, the association's executive director.

As South Dakota lawmakers have introduced several bills aimed at transgender athletes in recent years, Swartos said the stories of transgender students playing sports exceed reality.

“Most of the stories that I’ve heard in regards to this in South Dakota have not been true,” he said. “They’re either completely off base or bits and pieces of different stories that are intertwined together and misunderstandings that happen along the way.”

‘I wasn’t some scrub athlete’

During a discussion at the influential Conservative Political Action Conference in February, Milstead joined former Southern Utah University runner Linnea Saltz to speak about the issue – and Saltz referred to a transgender athlete who has gained mythic status among supporters of these bills.

June Eastwood, a University of Montana runner, became the first openly transgender cross-country runner in major college sports in 2019-20 after undergoing hormone therapy for a year to suppress testosterone, as required by NCAA rules.

But bill proponents often exaggerate Eastwood’s accomplishments or take them out of context.

“Me and my case, the one that they want to cite, is the worst possible evidence they could possibly cite because I’m kind of the prime example of why this stuff actually kind of works, why the medical transition does create fair and meaningful opportunities for everyone,” Eastwood told USA TODAY.

June Eastwood, right, competed for the University of Montana's men's track and cross country teams from 2016 to 2018 before transitioning.
June Eastwood, right, competed for the University of Montana's men's track and cross country teams from 2016 to 2018 before transitioning.

Saltz submitted testimony on behalf of the bill in Montana in March, saying “all hope was lost” in college when she learned she was going to compete against a “male-to-female” runner who before coming out as transgender had run race times for the men’s team that would have dominated the women’s field. She confirmed to USA TODAY she was talking about Eastwood.

But here’s what actually happened on the track: Eastwood was a good but not dominant runner, just like she was for the men’s team before she transitioned. She finished first in a few races, but not with extraordinary times. In other races, she finished 15th, 19th and 60th.

June Eastwood competes at a meet in her senior season.
June Eastwood competes at a meet in her senior season.

Saltz did not directly compete against Eastwood in an individual race, though she did compete on a relay team against Eastwood’s team at the Big Sky Conference indoor track and field championships in February 2020 – the only time Saltz and Eastwood competed in the same race.

Saltz’s Southern Utah team finished last in eighth place in that distance medley relay race in Idaho. Eastwood’s Montana team finished second.

ADF also has posted video on YouTube from that medley relay race to promote these bills.

The video shows Eastwood taking the baton when her team was in sixth place and then passing a few runners during the final, 1,600-meter leg of the relay to finish second. The performance didn’t affect Southern Utah’s standing in last place, a position it held every leg of the relay.

“I did make up some ground” in that medley relay race, Eastwood told USA TODAY. “But I ran the same time as I ran the next day (in the mile). It wasn’t like I was out there just destroying everybody and running an unreasonable or unrealistic time.”

Another ADF video showed Eastwood winning the mile race the next day by a margin of about four seconds, with a time of 4:50.28.

But the ADF videos left out this context: Eastwood’s time was not extraordinary among Big Sky women. Other runners in that same race have bested it in other races.

After winning the mile, Eastwood competed later that day in the 3,000-meter race but finished 15th.

Lawmakers in South Dakota, Idaho and elsewhere have cited Eastwood as they argue for restrictions on transgender athletes.

Eastwood notes that before she transitioned to the women’s team, she performed as one of Big Sky’s top runners but was not dominant on the men’s team.

A study published in 2015 backs that up, finding that the race times for transgender women slowed after transitioning with testosterone suppression. Instead of dominating female competition, the study also essentially said that if they were midlevel distance runners against male competition before transitioning, they were midlevel runners against female competition after transitioning.

“I wasn’t some scrub athlete,” Eastwood said. “That’s the story that they tell is that I was some mediocre athlete who transitioned to win, but that’s not what happened.”

Grassroots and astroturf

ADF attorneys say their Connecticut lawsuit tripped a surge of grassroots legislation around the country. But lawmakers say that the wording and ideas in their bills and the testimony behind them in many states came directly from ADF.

Matt Sharp, senior counsel at ADF, first testified in 2016 in support of South Dakota reversing a state high school sports association policy allowing transgender participation – before Miller or Yearwood set foot on a track in Connecticut.

In 2019, he worked with Idaho Rep. Barbara Ehardt on a bill she was drafting. Ehardt, a former Division I basketball player and coach, said the idea came to her while she was watching news coverage about Miller and Yearwood.

Idaho State Rep. Barbara Ehardt, R-Idaho Falls, testifies in January in support of a Montana bill that would ban transgender women and girls from competing in high school and college women's sports. The bill was very similar to Ehardt's own bill, drafted by the Alliance Defending Freedom, which was signed into law in Idaho last year and is currently embroiled in legal battles at the federal level.
Idaho State Rep. Barbara Ehardt, R-Idaho Falls, testifies in January in support of a Montana bill that would ban transgender women and girls from competing in high school and college women's sports. The bill was very similar to Ehardt's own bill, drafted by the Alliance Defending Freedom, which was signed into law in Idaho last year and is currently embroiled in legal battles at the federal level.

Sharp contacted her to offer a pre-written bill, known as model legislation, which she adopted, Ehardt said. In February 2020, she introduced her bill the day after ADF filed its lawsuit in Connecticut. Ehardt said she viewed it as a “collaborative partnership of trying to move this forward.”

“That you were able to just help piece legislation together that has become model legislation throughout the United States has been an amazing journey, very gratifying,” Ehardt said.

Several legislators said they had contacted ADF or used its language in drafting their bills.

“The Alliance Defending Freedom template started in Idaho, and it was pretty much what was used across the country this year,” Milstead said in South Dakota. “Most states including our state tweaked it to fit their state somewhat.”

At least 71 bills were filed during this legislative session, and more than half include at least one element of the ADF’s model legislation. Legislators in 28 states introduced bills with the language and foundations of ADF’s. Two states that signed them into law almost exactly copied ADF’s model bill enacted in Idaho last year.

After providing the language of the bills, ADF supplied testimony to support it. ADF, its plaintiffs or other outsiders connected to the group, such as Idaho's Rep. Ehardt, have testified in at least 11 states in support of these bills.

Soule, a plaintiff in the Connecticut lawsuit, told a House committee in South Carolina, “Not only was it frustrating, heartbreaking and demoralizing to know I could not win, it was even more concerning to see how it was affecting girls track and field and if changes are not made soon, we are facing the complete eradication of women’s sports.”

To be sure, the ADF is not alone in backing these bills. Representatives from conservative groups including the Pacific Justice Institute, Concerned Women for America and Eagle Forum testified in several states.

But ADF, which reported $65 million in revenue in 2020, has been the most prominent group behind the sports bills, as several lawmakers noted.

“We are recognized by a lot of legislators and others as having a unique legal expertise on this issue,” Sharp said.

While transgender rights advocates – including the American Civil Liberties Union and Human Rights Campaign – testified in a handful of states, the bills have faced grassroots opposition. Clergy, coaches, a presidential candidate, doctors, cisgender athletes, transgender athletes, an attorney general, and school and sport officials appeared to oppose these bills.

Warnings of harm

The bills ADF promotes could harm not only transgender girls and women, opponents say, but they could also lead to discrimination against cisgender girls and women who don't meet someone else's ideal of femininity.

A majority of the bills cover students in K-12 settings, where sports play a valuable role in socialization, team building and skill development. Transgender rights advocates said that affirming transgender girls’ identity during the school day but then requiring them to participate on the boys teams – as these bills would call for – would have harmful effects, including subjecting them to bullying and undermining their care as they transition.

Transgender youth are already at increased risk of suicide. The Centers for Disease Control and Prevention’s 2017 Youth Risk Behavior Survey found that 1.8% of high school students identified as transgender, with nearly 35% of those students attempting suicide in the previous year.

Citing those statistics, the American Academy of Pediatrics and American Medical Association are among medical groups opposing the bills. They have filed a brief supporting a lawsuit that seeks to stop Idaho’s law.

Represented by the ACLU, plaintiffs in that case are challenging Idaho’s first-in-the-country law to bar transgender students from kindergarten to college from competing on girls and women’s sports teams.

They have highlighted that Idaho’s law opens all girls in the state up to potentially invasive medical exams and lacks clarity over who can raise complaints about an athlete.

The law calls for a physician to certify a student’s internal and external reproductive anatomy, how much testosterone her body produces and her chromosomal makeup. Similar criteria to confirm a student’s sex was included in bills in 13 other states.

Kyle C. Velte at the University of Kansas School of Law in Lawrence, Kansas, in 2018.
Kyle C. Velte at the University of Kansas School of Law in Lawrence, Kansas, in 2018.

“Parents of all girls, trans and cis alike, should be very worried about these kinds of bills because it really tries to prescribe what it means to be a real girl and what it means to not,” said Kyle Velte, an associate law professor at the University of Kansas who testified in opposition to the bill in that state. “And suspicion about anybody can land any kind of girl in the situation of having to have this invasive and traumatic experience of genital inspections.”

Ehardt, who sponsored the Idaho bill, said that as a practical matter, such exams wouldn’t be necessary because other questions already required on the Idaho High School Athletic Association’s form would make clear if a student is transgender. Nevertheless, she said including a chromosomal requirement – which transgender students could never pass – was critical to the law.

None of the states’ bills clarifies who can challenge an athlete’s gender identity and how – which opponents say leaves it open to abuse by a losing team, rival or someone who wants to harass a student. Idaho’s attorney general raised the same concern in advice to the legislature before the law passed.

Cisgender female athletes could come under undue scrutiny, especially if they’re taller or more muscular than others.

In a legislative hearing in Texas in April, Karen Thompson testified that parts of her athletic career in public schools were “hell” because she was teased about her height. She’s 6-foot-2 and said she’s still misgendered and called “sir.”

The Texas bill “gives legal sanction to those who are frustrated by young girls’ athleticism,” she said. “Can you imagine the assaults if a young female or nonbinary athlete looks too male, especially if she’s strong and talented? Can you imagine the assault to her psyche, if she constantly has to prove through invasive examinations or documents who she is?”

During hearings, several girls and women testified that they don’t need protection from their transgender peers.

Beatrix Frissell, a cisgender female runner at the University of Montana, competed alongside Eastwood last year and finished ahead of Eastwood in the 3,000-meter race at the Big Sky event in 2020.

“Not once did I feel that my transgender teammate had an unfair advantage in my sport,” she stated in testimony submitted to the Montana legislature. Frissell also said the law would be “a violation of my own privacy as a female athlete.”

In Montana, the bill passed into law. In most other states, the bills died for this legislative session, which is already over or ending, but advocates fear they could be taken up again in the future.

The ACLU is challenging the laws in Idaho and West Virginia, arguing they violate Title IX and the Equal Protection Clause of the U.S. Constitution. ADF has intervened on behalf of two collegiate athletes in Idaho.

A federal district court judge there issued an injunction to prevent the law from taking effect while the case proceeds, saying plaintiffs “are likely to succeed in establishing the Act is unconstitutional as currently written.”

This month, the Justice Department filed a statement of interest in the West Virginia lawsuit, arguing the state “cannot demonstrate that prohibiting a handful of transgender student athletes from playing on athletic teams consistent with their gender identity is substantially related to any important government interest.”

As courts weigh in, the scarcity of real problems is likely to play a role. Equal protection claims would balance how well these laws solve a problem against the discrimination against transgender girls.

“In any of these cases, you have to balance the real harm against the harm that happens if you invoke some law that’s an absolute bar to playing,” said Anneliese Schaefer, who testified in Missouri about her daughter’s experience petitioning to play on the girls soccer team for her senior season after a year of hormone therapy.

“There’s been these red herrings put out there that women are at risk, so we have to keep these trans kids off the field. That is what is unfair, because it’s not real.”

Contributing: Dan Keemahill, Claire Thornton

This article originally appeared on USA TODAY: Transgender sports bans pushed by conservatives citing untrue claims

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