Transgender sports bans become conservative litmus test
Washington — The battle for LGBTQ rights has entered a new front as conservatives mount widespread efforts to bar transgender girls from participating in school sports, with activists warning support for the policies will be a crucial test for Republicans poised to seek higher office in the coming years.
Lawmakers in at least 25 states have proposed measures restricting transgender athletes from competing in school sports. And much like the debate several years ago over allowing transgender students to use the bathrooms and locker rooms that match their gender identity, the push to bar transgender athletes from girls' and womens' sports has emerged as the latest flashpoint in the culture wars.
"This has become a litmus test for Republican and conservative voters," Terry Schilling, president of the American Principles Project, a conservative think tank, said of restricting transgender girls and women in athletics. "It's an important victory for Republicans to achieve, and a base of conservative voters are going to look at politicians who betray this issue as not trustworthy."
Idaho became the first to pass legislation barring transgender girls and women from participating in women's sports, but a federal judge halted enforcement of the measure. Mississippi, Arkansas and Tennessee have since enacted legislation barring transgender student-athletes from joining female sports teams. But Arkansas Governor Asa Hutchinson on Monday vetoed a bill that would have gone further by banning gender-affirming medical treatments for transgender youth.
The way in which the battle over the bans is playing out in South Dakota shows how politically fraught the issue could be for Republicans navigating their base, suburban voters and potential economic repercussions.
Governor Kristi Noem, a Republican expected to run for president in 2024, originally cheered on a bill approved by the legislature addressing transgender athletes. But she declined to sign it, citing concerns it would be swiftly blocked by the courts.
Instead, she proposed revisions to the measure, which the legislature refused to make. Noem subsequently issued two executive orders addressing the issue — one states that in South Dakota, only females based on their biological sex can participate in any school-sanctioned girls' or women's athletic event, and the other limits participation for transgender athletes at the state's higher education institutions.
While Noem had urged the state legislature to outlaw transgender girls from school sports, her decision not to sign the bill and instead call for changes sparked backlash from conservatives who said she cowered to the NCAA and other businesses.
Schilling warned in a statement Noem's move "will certainly haunt her should she decide to run for any office in the future." With scores of activists it plans to engage in 2024, he told CBS News his group intends to "make sure we have a strong crop [of presidential candidates] and the weak guys don't get through."
"It's very simple," he said. "It's a matter of fortitude and whether or not you as president will be willing to withstand high amounts of pressure."
Conservative activists say President Biden's victory propelled the issue among Republicans in state houses, as Mr. Biden took swift action once in office to protect LGBTQ rights, including rescinding former President Donald Trump's ban on transgender troops in the military and issuing an executive order that aims to prevent and combat discrimination on the basis of gender identity or sexual orientation. Mr. Biden's anti-discrimination executive order states "children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports."
"Had Trump been reelected, you wouldn't be seeing it as much because it wasn't an eminent threat," Schilling said.
Some Republicans see the issue as having the potential to resonate beyond the core base, particularly with suburban women who have children enrolled in sports or voters who strayed from Mr. Trump because of his rhetoric and behavior but may be turned away by policies perceived as Democratic overreach.
"It's not about the Republican base, it's about white suburban voters," one North Carolina-based GOP strategist told CBS News.
The Independent Women's Forum, a conservative group focused on women's issues, has been supportive of state-based legislation in response to Mr. Biden's executive order, arguing it undermines Title IX, the federal law that prohibits discrimination on the basis of sex by institutions that receive federal dollars.
"Governor Noem has it exactly backwards. It's women's competitive athletics at the varsity and collegiate levels that are threatened by the participation of biological males, not first grade girls' soccer," Jennifer Braceras, director of Independent Women's Law Center, told CBS News.
But the Justice Department's Civil Rights Division issued a memo to federal agencies late last month stating that "after considering the text of Title IX, Supreme Court caselaw, and developing jurisprudence in this area, the Division has determined that the best reading of Title IX's prohibition on discrimination 'on the basis of sex' is that it includes discrimination on the basis of gender identity and sexual orientation."
The issue of transgender athletes in female sports has been a key topic among possible GOP presidential contenders, in addition to Noem.
Mr. Trump devoted time in his address at the Conservative Political Action Conference last month to decry policies allowing transgender girls to compete, claiming they will "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," he said. "It's not good for women. It's not good for women's sports, which worked so long and so hard to get to where they are."
And as speculation over Nikki Haley's potential presidential run intensified earlier this year, the former U.S. ambassador to the United Nations and governor of South Carolina, weighed in on the issue, writing in an op-ed for National Review that Mr. Biden's executive order was "an attack on women's rights."
"If this trend isn't stopped, the achievements of so many brave women over so many years will be erased. That's wrong. It's insulting. And women know it, too, whether they're retired athletes, middle-aged mothers, or a 16-year-old girl thinking of signing up for swimming," she wrote. "They're just afraid to speak out, because they know they'll be silenced and called bigots."
Among Republicans, 74% support banning transgender athletes from competing on women's sports teams, as do 40% of Democrats, according to a poll from Politico and Morning Consult conducted early last month. The survey also found 53% of registered voters favor such prohibitions.
Kyle Kondik, an elections analyst at the University of Virginia's Center for Politics, said Republicans see the issue as one in which they can have an advantage over Democratic opponents, particularly in gaining support from populist voters who are more culturally conservative yet aligned with the Democratic Party on economic issues.
In places like Youngstown, Ohio, northeastern Pennsylvania and Minnesota's Iron Range, those voters' support for Democrats has fallen away. As more companies and organizations like the NCAA enter the political fray and denounce policies pushed by Republicans, like the bans for transgender athletes, Kondik suggested this trend could drive those voters toward GOP candidates.
"If the Democrats are viewed as the party of the cultural left and big business is associated with the cultural left, does that lead to more resentment from culturally conservative voters and push them into the hands of Republicans and be a motivating tool for Republican candidates to do better?" Kondik told CBS News. "Republicans use these wedge issues as important motivating tools."
He also noted for GOP candidates on the ballot in 2022, running on cultural issues may be "sounder ground" than running against Mr. Biden's $1.9 trillion economic stimulus package, which enjoyed broad support.
But Noem's reference of the NCAA backlash in South Dakota shows the perils for Republicans pushing these issues as well. The so-called bathroom bill in North Carolina led the NCAA to pull its championships out of the state, and other businesses followed, creating economic consequences for the state. Those dynamics weakened then-Republican Governor Pat McCrory, who lost reelection to Democrat Roy Cooper in 2016. Cooper signed legislation rolling back the so-called "bathroom bill" in 2017.
"If the Republicans overreach in their reforms, it can backfire on them," the North Carolina GOP strategist warned. "If it becomes an issue that creates economic fallout, then it can become a problem for them."