Sports, Transgender Rights and the Bodily Politics of Cisgender Supremacy
Purpose and Outline
2. Sports, Bodies, and Title IX
Existing Policies in States and Schools
3. National Context and State-Level Politics in the 2020 and 2021 Legislative Sessions
3.1. National Context from 2017 through 2020
3.2. Parallel Legal Challenge and State-Level Litigation
“Another issue that may come up under both Title VII and Title IX is the right of a transgender individual to participate on a sports team or in an athletic competition previously reserved for members of one biological sex. …The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male”(Bostock v. Clayton County, 47).
3.3. Action in the States, 2020 and 2021
4. Bill Content Themes and Cis Supremacy
4.1. Bill Identification Method and Analysis
4.2. Theme 1: Elevation of Sex Segregation and “Natural” Gendered Physical Hierarchies
“When an equal opportunity to participate in the elementary or secondary school level athletic program of an educational institution or public service is not provided to members of a sex whose overall athletic opportunities have previously been limited, that educational institution or public service shall, where there is demonstrated interest, provide separate teams for members of the excluded sex”(Minnesota H.F. 350).
4.3. Theme 2: Sex Assigned at Birth as Immutable Destiny
“DESIGNATION OF ATHLETIC TEAMS OR SPORTS—(a) Interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by a public primary or secondary school, a public postsecondary institution, or any school or institution whose students or teams compete against a public school or public postsecondary institution shall be expressly designated as one of the following based on biological sex: 1. Males, men, or boys; 2. Females, women, or girls; or 3. Coed or mixed.(b) Athletic teams or sports designated for females, women, or girls may not be open to students of the male sex”(Florida H.B. 1475; similar language is used in bill originating in Wisconsin, West Virginia, Arkansas, New Jersey, Rhode Island, Iowa, and Montana).
“The benefits that natural testosterone provides to male athletes is not diminished through the use of puberty blockers and cross-sex hormones. A recent study on the impact of such treatments found that even ‘after 12 months of hormonal therapy’, a man who identifies as a woman and is taking cross-sex hormones ‘had an absolute advantage’ over female athletes and ‘will still likely have performance benefits’ over women”(New Jersey S. 3540 and A.5545; Rhode Island S. 638; West Virginia H.B. 2676, H.B. 2734, H.B. 2917, and S.B. 341; Kansas S.B. 208 and S.B. 55; Arkansas S.B. 354).
4.4. Theme 3: Bodies as Testimony (Genitals, Hormones, Chromosomes)
4.5. Theme 4: Emphasis on “Protecting” Girl’s and Women’s Sport
4.6. Theme 5: Victims and Offenders, Applying Tactics of Criminality
“The Attorney General shall bring a civil action in circuit court against a state or local official who willfully and intentionally commits an act that violates, or that is designed or intended to violate or frustrate, this section, and may bring a civil action in circuit court against any person who intentionally falsifies any genetic testing required ... In conducting a trial … the court shall conduct the trial in the same manner as the court would conduct a criminal trial”(West Virginia H.B. 2141).
Conflicts of Interest
Archival SourcesAlabama H.B. 391 (2021).Alaska S.B. 140 (2021).Arizona S.B. 1637 (2021).Arkansas S.B. 354 (2021).Arkansas S.B. 450 (2021).Arkansas S.J.R. 16 (2021).Connecticut H.B. 5795 (2021).Connecticut H.B. 6128 (2021).Connecticut S.B. 324 (2021).Florida H.B. 935 (2021).Florida H.B. 1475 (2021).Florida S.B. 1028 (2021).Florida S.B. 2012 (2021).Georgia H.B. 276 (2021).Georgia H.B. 372 (2021).Georgia S.B. 266 (2021).Hawaii H.B. 1304 (2021).Idaho H.B. 500 (2020).Illinois H.B. 4082 (2021).Iowa H.F. 184 (2021).Iowa H.F. 334 (2021).Kansas S.B. 55 (2021).Kansas S.B. 208 (2021).Kentucky H.B. 471 (2021).Kentucky S.B. 106 (2021).Louisiana H.B. 542 (2021).Louisiana S.B. 156 (2021).Maine L.D. 926 (2021).Maine L.D. 1401 (2021).Michigan H.B. 5082 (2021).Michigan S.B. 218 (2021).Minnesota H.F. 350 (2021).Minnesota H.F. 352 (2021).Minnesota H.F. 1657 (2021).Minnesota S.F. 96 (2021).Mississippi S.B. 2536 (2021).Missouri H.B. 1077 (2021).Missouri H.B. 1045 (2021).Missouri H.B. 1184 (2021).Missouri H.J.R. 53 (2021).Missouri H.J.R. 56 (2021).Missouri S.B. 9 (2021).Missouri S.B. 503 (2021).Montana H.B. 112 (2021).New Hampshire H.B. 198 (2021).New Jersey A. 5545 (2021).New Jersey S. 3540 (2021).New Mexico H.B. 304 (2021).North Carolina H.B. 358 (2021).North Dakota H.B. 1298 (2021).North Dakota H.B. 1476 (2021).Ohio H.B. 61 (2021).Ohio S.B. 132 (2021).Oklahoma S.B. 2 (2021).Oklahoma S.B. 331 (2021).Pennsylvania H.B. 972 (2021).Rhode Island S. 638 (2021).South Carolina H. 3477 (2021).South Carolina H. 4153 (2021).South Carolina S. 531 (2021).South Dakota H.B. 1217 (2021).South Dakota S.B. 190 (2021).Tennessee H.B. 3 (2021).Tennessee S.B. 228 (2021).Texas H.B. 1458 (2021).Texas H.B. 3455 (2021).Texas H.B. 4042 (2021).Texas H.B. 4043 (2021).Texas S.B. 29 (2021).Texas S.B. 373 (2021).Utah H.B. 302 (2021).Washington H.B. 1556 (2021).West Virginia H.B. 2141 (2021).West Virginia H.B. 2676 (2021).West Virginia H.B. 2734 (2021).West Virginia H.B. 2917 (2021).West Virginia H.B. 3293 (2021).West Virginia S.B. 341 (2021).Wisconsin A.B. 195 (2021).Wisconsin A.B. 196 (2021).Wisconsin S.B. 322 (2021).Wisconsin S.B. 323 (2021).Protection of Women and Girls in Sports Act of 2020, S. 4649, 116th Cong. (2020).Protection of Women and Girls in Sports Act of 2020, H.R 5702, 116th Cong. (2020).Protection of Women and Girls in Sports Act of 2020, H.R 5603, 116th Cong. (2020).Protect Women’s Sports Act of 2020, H.R. 8932, 116th Cong. (2020).Protection of Women and Girls in Sports Act of 2021, H.R. 426, 117th Cong. (2021).Safety and Opportunity for Girls Act of 2021, H.R. 1417, 117th Cong. (2021).Protection of Women and Girls in Sports Act of 2021, S. 251, 117th Cong. (2021).
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Throughout, I make reference to identities and categories of sex, gender and gender identity (i.e., the gender one regards themself). Language of sex and gender are constantly evolving, so here I use: (1) “cisgender women/girls”, by which I mean those who identify with the sex they were assigned at birth; (2) “transgender women/girls”, which refers to an umbrella category of people who disidentify with the sex they are assigned at birth and who may identify as a woman/girl and/or who seek inclusion in competitive athletic teams designated for “girls” or “women” irrespective of whether they wholly identify as a girl/woman/female (e.g., non-binary, intersex, genderfluid, gender non-conforming people may identify as transgender and seek inclusion as athletes on teams for women; see DeLaCretaz 2021); and (3) “women/girls”. Unless specified, references to “women/girls” connote all those who identify as such, whether cis or trans.
The composition of states considering legislation in 2021 included sixteen states where bans were also considered in 2020, and twenty states with legislation introduced only in 2021. Four states considered legislation in 2020 but not 2021. See footnotes 22 and 37 for specifics.
In addition to sports legislation, an array of other anti-trans bills seeking to ban access to gender-affirming health care, restrict access to segregated public and school bathrooms, or deny changes to sex designated on birth certificates were proposed by lawmakers. As of June 2021, thirteen anti-transgender bills (including sports bans) were passed into state law during the 2021 session (Levin 2021; MAP 2021b).
Soule et al. v. CT Association of Schools et al., No. 3:20-cv-00201 (D. Conn. 2020).
This article focuses on school-sponsored athletics but women’s elite athletics also have a long, racialized history of surveilling women’s bodies through the customs of sex testing (Pieper 2016), which employ white, Western standards of femininity to exclude predominately women of color from the Global South (Karkazis and Jordan-Young 2018).
20 U.S.C. §1681 et seq; Pub. L. 88-352.
I select this focus on state legislatures for research design and analysis purposes to focus on the record of lawmaking. I situate lawmaking in its discursive political context which is shaped by “trans-exclusionary radical feminists” (TERFs) (Goldberg 2014). TERF circles emerged from second-wave liberal feminist movements and have more recently joined cause with conservative interest groups to contest trans inclusion under sex non-discrimination policies (Pearce et al. 2020; Wang 2019; Wuest 2021).
Title IX states that “no person …shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance” [20 U.S.C. § 1681(a)].
Renée Richards’ battle to participate as an out, transgender woman throughout the 1970s in the women’s professional tennis circuit highlighted questions about trans inclusion in women’s sport, but the conversations in that era were largely contained to the professional level and operated to preserve binary competitive categories (see Pieper 2012).
During the 2020–2021 school year, those states included California, Colorado, Connecticut, Florida, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington, and Washington D.C. (GLSEN 2021).
During the 2020–2021 school year, these states included Indiana, Kentucky, and Louisiana (GLSEN 2021).
During the 2020–2021 school year, those states included Alabama, Arkansas, Georgia, Idaho, New Mexico, and Texas (GLSEN 2021).
During the 2020–2021 school year, those states included Arizona, Delaware, Illinois, Iowa, Maine, Missouri, Nebraska, North Dakota, North Carolina, Oklahoma, Ohio, South Dakota, Utah, Virginia, Wisconsin, and Wyoming (GLSEN 2021).
During the 2020–2021 school year, these states included Alaska, Hawaii, Kansas, Michigan, Mississippi, Montana, Pennsylvania, South Carolina, Tennessee, and West Virginia (GLSEN 2021).
Seventeen states (plus D.C.) currently have laws that prohibit discrimination in schools on the basis of gender identity and sexual orientation. Six others have policy that interprets other existing laws as enacting such protections. But twenty-seven states have no laws protecting LGBTQ+ students from discrimination, and two states (Missouri and South Dakota) have laws that prevent schools from penning their own non-discrimination policies (see MAP 2021a).
“Gender identity”, the Obama-era Dear Colleague letter read, “refers to an individual’s internal sense of gender. A person’s gender identity may be different from or the same as the person’s sex assigned at birth;” “sex assigned at birth”, it notes, “refers to the sex designation recorded on an infant’s birth certificate should such a record be provided at birth” (DOE 2016, p. 1).
https://www.youtube.com/watch?v=etkJUCmkPfk (accessed on 24 May 2021).
Similar arguments would also appear in a U.S. Supreme Court amicus brief authored by the Independent Women’s Forum, another conservative interest group, in the R.G & G.R. Harris Funeral Homes, Inc. v. EEOC et al. case concerning sex discrimination under Title VII (Braceras and Milanovich 2019).
https://www.youtube.com/watch?v=Qm1gEdtl06M (accessed on 24 May 2021).
https://www.youtube.com/watch?v=9a0bBU8HZm0 (accessed on 24 May 2021).
In 2020 these include (with sports bill counts in parentheses) Alabama (2), Arizona (1), Colorado (1), Georgia (1), Idaho (1), Indiana (1), Iowa (1), Kansas (1), Kentucky (1), Louisiana (2), Massachusetts (2), Minnesota (2), Mississippi (2), Missouri (3), New Hampshire (2), Ohio (1), South Carolina (1), Tennessee (2), Washington (1), and West Virginia (2).
The ADF is a far-right religious organization that routinely promotes LGBTQ+ antipathy through lawsuits and draft legislation. The Southern Poverty Law Center classifies them as an extremist hate group, a designation also reserved for the Westboro Baptist Church and seven other anti-LGBTQ+ groups (SPLC 2021). ADF’s long-term objective is to seek legal outcomes that allow the denial of LGBTQ+ people goods and services on the basis of religion. Their recent activity is concerned with securing legal definitions of sex as an immutable biological category, and gender as a subjectively determined identity (Wuest 2019, 2021).
The lawsuit followed a Title IX complaint by the athletes to the U.S. Department of Education Office for Civil Rights in August 2019.
Connecticut state law also prohibits discrimination on the basis of gender identity or expression in all areas where the law already protects again sex discrimination (i.e., under Title IX) (MAP 2021a).
Hecox, et al. v. Little, et al., No. 1:2020cv00184—Document 63 (D. Idaho 2020).
Bostock v. Clayton County, 590 US_(2020).
By comparison, the total spending during the 2020 U.S. presidential election was over $14.4 billion (Evers-Hillstrom 2021). Thus spending on these advertisements was comparatively small, even in Michigan where APP spent half of their money. Michigan’s Senate race—the race most aggressively targeted by APP with the anti-trans advertisements—was the eighth most expensive nationally with spending topping just over $197 million.
The full record of U.S. Department of Education notification to the Connecticut districts is archived online (Office for Civil Rights in the U.S. Department of Education 2020), though the Biden administration has announced that the policy therein is inconsistent with Executive Order 13988.
The Biden administration has since ensured that the school districts will receive the funds.
An additional bill was proposed that month in the U.S. Congress (H.R. 426).
Republican members of the U.S. Congress introduced two additional bills in March 2021, S. 251 and H.R. 1417.
South Dakota’s bans followed a circuitous route. Governor Kristi Noem announced a partial veto of the bill (H.B. 1217) passed by the South Dakota state legislature, citing concerns over potential lost revenue from sports championships. During the 2016–2017 collegiate athletic season, the NCAA agreed to withdraw championships from the state of North Carolina due to the passage of a state law that banned the use of public restrooms for transgender people (NCAA 2016). Governor Noem indicated that she would support a ban on participation by transgender athletes at the elementary and high school (but not collegiate) levels; efforts to over-ride her veto failed in the legislature. Noem then issued two Executive Orders which, in effect, accomplished many of the aims of the legislature’s bills through her executive powers (Groves 2021).
In Florida, the legislators finished debate and voting on the bill in late April but then delayed sending it to Governor Ron DeSantis until the end of May, enabling him to sign the bill on June 1, the first day of LGBTQ+ Pride Month.
These eight special session bills in Texas, all proposed after my analyses were complete, are neither included in my study nor in the total 2021 bill counts.
In 2021 these include (proposed sports bill counts in parentheses) Alabama (1), Alaska (1), Arizona (1), Arkansas (3), Connecticut (3), Florida (4), Georgia (3), Hawaii (1), Illinois (1), Iowa (2), Kansas (2), Kentucky (2), Louisiana (2), Maine (2), Michigan (2), Minnesota (4), Mississippi (1), Missouri (7), Montana (1), New Hampshire (1), New Jersey (2), New Mexico (1), North Carolina (1), North Dakota (2), Ohio (2), Oklahoma (2), Pennsylvania (1), Rhode Island (1), South Carolina (3), South Dakota (1), Tennessee (2), Texas (6, not including bills proposed in July special session), Utah (1), Washington (1), West Virginia (6), and Wisconsin (4).
The group wrote, “We ask Congress and the Administration to affirm Title IX’s long-standing commitment to providing biological females with equal experiences and opportunities in competitive sport, and to protecting their safety in contact sports, by permitting recipients of federal funds to continue to operate or sponsor separate athletic teams and events for males and females” (WSPWG 2021, p. 5). Although the group described themselves as a “middle ground” on the questions of trans inclusion, the gendered language they employ align them more closely with anti-trans groups. Their congressional advocacy materials note, “We use ‘female’ throughout to denote a person’s biological sex regardless of their gender identity. We use ‘trans(gender) girl/woman’ throughout to denote a person born male who identifies as a girl/woman”, instead of using trans-affirming language designating sex assigned at birth (WSPWG 2021, p. 5). Members of this working group previously published a high-profile opinion piece advocating for a “carve out” from the Equality Act to prevent Title IX protections from including transgender athletes (Coleman et al. 2019).
The Republican Party has long championed anti-LGBTQ+ causes, having notably led the charge to ban same-sex marriage at both the federal and state levels. Only one anti-trans sports bill in Hawaii (H.B. 1304) came from the desk of a Democratic state legislator.
The long-standing commitment of the Religious Right to antigay politics is well documented (e.g., Critchlow 2005; Herman 1997; Lax and Phillips 2009; Self 2012), as are the consequences of such politics for targeting transgender people (Davis 2014; Murib 2020; Schilt and Westbrook 2009; Stone 2018; Westbrook and Schilt 2014). The tactics of the Religious Right have impacted much policymaking on issues of sexual and reproductive freedom. From the politics of abortion and teen pregnancy (Luker 1984, 1996), to the control of Black women’s sexuality (Collins 2004; Hancock 2004; Roberts 1997), bodies, and the right to queer freedom and autonomy, remain subject to the will of lawmakers (e.g., Kurth et al. 2021).
There is no national sport governing body for interscholastic competition before high school (whereafter the National Federation of State High School Associations organizes the various state-level associations), when youth athletics are far more commonly organized through local/municipal athletic associations or private leagues (Messner and Musto 2016). These environments frequently present inclusion challenges for transgender and gender non-conforming children (Travers 2016).
The exception is for proposed congressional legislation all of which designated their intent to amend federal law.
Supremacist ideology asserts fixed hierarchies among dominant and subordinate groups, typically motivated by ideas about the minority group’s immutable traits that are used to justify the order and retain the already empowered group/identity at the top (e.g., Canaday 2009; Novkov 2001, 2008; Soss et al. 2011).
See also recent caselaw [Gordon v. Jordon School District, Civil No. 2:17-cv-00677-HCN-DAO (D. Utah 1 March 2021)] with respect to football leagues who, a U.S. Circuit Court decided, must only require tryouts for girls to play on existing boy’s teams, not for leagues to offer separate teams for girls (Vejar 2021).
There are some states, like North Dakota, that take an imbalanced approach, explicitly suggesting that while cisgender girls can try out for “boy’s” teams, transgender girls cannot participate on “girl’s” teams. They propose, “This section may not be construed to prohibit a female from participating in a school-sponsored athletic team or event that is exclusively for males” (North Dakota H.B. 1298).
Very few proposed bills specifically reference transgender people (only 4) or employ the term “gender identity” (only 7, all in order to draw contrast to the meanings of “sex”). The four bills (in Kansas, Hawaii, Rhode Island, and West Virginia) only reference transgender people when excerpting a quote from a study.
Some conflate sex and gender, such as in Alabama where lawmakers write, “This bill would provide that public K-12 schools may not participate in, sponsor, or provide coaching staff for interscholastic athletic events at which athletes are allowed to participate in competition against athletes who are of a different biological gender, unless the event specifically includes both biological genders (H.B. 391, now Act 2021-285).
518 U.S. 515 (1996).
Objectively, neither the arguments of lawmakers nor the WSPWG are supported by peer-reviewed science which concludes that there is more we don’t than do know or fully understand about the impacts of hormones on athleticism (Jordan-Young and Karkazis 2019; Karkazis et al. 2012; Karkazis and Jordan-Young 2015; Roberts et al. 2021). One study directly contradicts the arguments advanced by legislators stating, “there is no direct or consistent research suggesting transgender female individuals (or male individuals) have an athletic advantage at any stage of their transition” (Jones et al. 2017, p. 701), but none of the bills acknowledge this finding.
Precisely the same text appears in New Jersey S. 3540 and A.5545; Ohio S.B. 132 and H.B. 61; Rhode Island S. 638; West Virginia H.B. 2676, H.B. 2734, H.B. 2917 and S.B. 341; Arizona S.B. 1637; Iowa H.F. 184 and H.F. 334; and Mississippi S.B. 2536. Similar processes of verifying anatomy, hormones and genetics are outlined in Maine L.D. 926; Florida H.B.1475; Kansas S.B. 208; and Minnesota H.F. 352 and S.B. 2536.
The reference to performance enhancing drugs illustrates the common misperception that gender-affirming health care in the form of puberty-blockers or hormone therapies are no different than anabolic steroids, a position that the International Olympic Committee explicitly rejects.
See Missouri H.B. 1045 and H.B. 1077, in particular.
Much is unknown about athletic performance among transgender athletes. Many studies have a small sample size and trans athletes are rarely included as participants. To the extent that peer-reviewed research has studied trans athletes, they have been more to study elite-level performance and not average youth. The resulting scientific knowledge is biased by specific research designs and often ignores important economic, contextual and cultural impacts on athletic performance.
Specifically, the state of scientific knowledge regarding the relationship hormones and athleticism is complex and inconclusive. Studies suggest multiple factors that contribute to athleticism (Brutsaert and Parra 2006; Guth and Roth 2013). Sporting ability is determined by a range of characteristics, including aerobic and cardiac capacity, body size, mass and flexibility, and blood oxygenation abilities to name a few (Karkazis et al. 2012; Ranković et al. 2010; Tucker and Collins 2012). Non-embodied factors also play a major role in determining athletic performance, including socioeconomic indicators that determine access to training, coaching, and nutrition (Bernard and Busse 2004).
Misdemeanor and felony criminal penalties (for youth and their parents who seek gender affirming care) were also proposed in multiple anti-trans health care restriction bills (see Equality Federation 2021).
B.P.J. et al. v. West Virginia State Board of Education et al., Civil Action 2:21-cv-00316 (S.D.W. Va. Jul. 21, 2021); Brandt et al. v. Rutledge et al., 4:21-cv-00450 (E.D. Ark.)
Throughout the spring, executive agencies began announcing their policy interpretations in response to the Biden E.O. The U.S. Department of Justice announced their intent to produce policy guidelines under Title IX that would restore gender identity protections (DOJ 2021).
In 2019, the U.S. House had previously passed a similar version of the same bill. In fact, different versions of the legislation have been proposed in every Congress since 1974. The inclusion of gender identity protections for transgender Americans is more recent, and has proven to be politically contentious even among Democrats (Vitulli 2010). The Senate Judiciary Committee held a hearing on the act in March; much of the testimony, particularly from witnesses invited by Republican Senators, focused on contesting gender identity protections in sport (U.S. Congress 2021).
For example, at the 2021 meeting of the Conservative Political Action Conference (CPAC), Trump’s speech foregrounded the same anti-trans messaging used across legislative efforts. He stated “Joe Biden and the Democrats are even pushing policies that would destroy women’s sports. Young girls and women are in sets that they are now being forced to compete against those who are biological males” (Weigel 2021).
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Sharrow, E.A. Sports, Transgender Rights and the Bodily Politics of Cisgender Supremacy. Laws 2021, 10, 63. https://doi.org/10.3390/laws10030063
Sharrow EA. Sports, Transgender Rights and the Bodily Politics of Cisgender Supremacy. Laws. 2021; 10(3):63. https://doi.org/10.3390/laws10030063Chicago/Turabian Style
Sharrow, Elizabeth A. 2021. "Sports, Transgender Rights and the Bodily Politics of Cisgender Supremacy" Laws 10, no. 3: 63. https://doi.org/10.3390/laws10030063