Efforts to ban trans athletes questioned
Investigation finds untruths in arguments
As the Arizona Legislature considered barring transgender students from girls and women’s sports last year, the bill’s sponsor zeroed in on 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 she referenced 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, 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 said, “That’s disappointing because apparently it’s rumors or speculation or excuses that somebody has made. 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. 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 nation. 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 or to breaking any records.
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 suits, 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. “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 said in its Connecticut suit.
Supporters of the bans say policies that allow transgender athletes to compete on girls teams violate Title IX, the law that bars discrimination “on the basis of sex” in educational institutions receiving federal funds.
But in June, 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. “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, ADF filed a federal complaint challenging a Connecticut Interscholastic Athletic Conference policy that lets transgender students 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.
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.
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 suit 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 suit claimed took away recruiting opportunities from the plaintiffs, are not.
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.
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.
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.
‘I wasn’t some scrub athlete’
During a discussion at the Conservative Political Action Conference in February, former Southern Utah University runner Linnea Saltz referred to a transgender athlete who has gained mythic status among supporters of these bills: June Eastwood.
The University of Montana runner became the first openly transgender crosscountry 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.
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 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, 60th.
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.
Saltz’s team finished last in that relay. Eastwood’s finished second.
Lawmakers in South Dakota, Idaho and elsewhere cite Eastwood as they argue for limits 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 wasn’t dominant on the men’s team.
“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 U.S. But lawmakers say 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.
In 2019, he worked with Idaho Rep. Barbara Ehardt on a bill she was drafting. 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.”
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 copied ADF’s bill enacted in Idaho last year.
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.
The American Academy of Pediatrics and American Medical Association 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-inthe-country law to bar transgender students from kindergarten to college from competing on girls and women’s 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.