The politics of exclusion
Analyzing U.S. state responses to interscholastic transgender athletes
Along with Spencer Harris, Scott Jedlicka and Henry Ryan, I have a new peer-reviewed paper just out on the politics of surrounding U.S. state-level legislation regulating participation in interscholastic scholastic sport that focus on transgender children.
Our paper focuses on politics, not policy. This post summarizes the paper and provides a link to the paper at the bottom.
We recognize that the regulatory and policy issues surrounding eligibility for participation in sport according to gender categories can be complex, and that there are legitimate differences of view on what sorts of regulations are appropriate:
The issue of transgender participation in sport is complicated. It is also intensely political and contested. Some complications reside in the varying evidence of performative advantages between males and females across different sports and sport disciplines. Other complications involve different approaches to balancing inclusion and perceptions of fairness (in the absence of conclusive data on possible advantage and mitigation of advantage). The interpretation of evidence is made more complex due to the broader context of law, policy and rights related to discrimination and exclusion.
Despite the policy complexities, the issue of transgender children in scholastic sport has become largely oriented across partisan lines:
As demonstrated in our results, while various political perspectives can be found in the arguments presented by governments and interest groups, there remains a clear pattern of partisan politics with Democrats promoting the status quo/inclusion of transgender athletes in school sport, and Republicans largely arguing for legislation to only permit participation based on gender as presented in the person’s original birth certificate.
On a fast-moving political issue, academic policy analysis — which typically occurs on a much slower pace — requires nimbleness. Our paper thus provides:
. . . a baseline characterisation of recent legislation addressing trans participation in school sport across all 50 states (up to 1 October 2022) to clarify how legislators across the 50 U.S. states are legislating on transgender participation in interscholastic sport and to examine the rationale or basis of these legislative efforts. The data are organised into four clusters predicated on the status of legislation. Each cluster includes data on the political composition of all branches of state government, the framing and content of the legislation, the evidence used to support or justify legislation, and the position of the state’s high school sport association on trans participation in school sport. These data are then analysed alongside qualitative justifications for the legislation provided by elected and other public officials.
Based on published estimates we note a large gap between the magnitude of any policy problem versus the scope of response:
. . . participation estimates portray an exceptionally small number of transgender athletes, yet the collective response of states suggests a significant problem requiring immediate intervention.
Given the many significant issues facing states across the nation, we sought to explore the political dynamics behind the large amount of attention that has been paid to this issue by state legislatures. It turns out, the issue of transgender children in interscholastic sport is not actually about sport or regulation, but rather about using trans children as symbols in a broader political campaign — organized by a small number of groups with a long history of anti-LGBTQ activities.
Let’s have a quick look at our analysis and discussion. Specifically, we complied the following variables at the time of legislative action:
Partisan control of the legislature (Republican, Democrat, or divided)
Party affiliation of the chief executive (i.e. governor) (Republic or Democrat)
Party affiliation of the secretary of state (Republican or Democrat)
Party affiliation of the attorney general (Republican or Democrat)
Share of the state’s popular vote won by Donald Trump in the 2020 presidential election
We define a government trifecta as single party control of legislature and governorship and a government triplex as shared party affiliation among governor, secretary of state, and attorney general.
Based on our analysis we define five clusters of states — which are displayed in the map at the top of this post — according to the colors noted below:
RED: States with enacted legislation that restricts or prevents trans athletes’ sport participation
States where legislation has been introduced to restrict/prevent trans athletes’ sport participation
BLUE: Sub-cluster A: states where legislation failed
ORANGE: Sub-cluster B: states where legislation remains in passage
GREEN: States where bills have not been introduced
CALIFORNIA: States with enacted legislation that protects trans athletes’ gender-affirming sport participation
Some of our findings follow.
First, through September 2022 of the 19 states which passed restrictive legislation, all were strongly Republican:
. . . all 19 states have a Republican-led legislature and 17 of 19 states have a Republican government trifecta (i.e. Republicans hold majorities in both chambers of the legislature and the governor’s office). Furthermore, all 19 of these states saw a vote share for Donald Trump in 2020 of over 50%, ranging from 69% (Idaho, West Virginia) to 51% (Florida).
It is important to note that 8 of these 19 states high school sports associations (HSSA) already had in place policies restricting the participation of trans children in athletics — meaning that the legislation had no practical policy implications. The legislation was thus symbolic.
Among states with no introduced legislation, all are strong Democratic (except one):
To date, legislators in seven U.S. states have not given any formal legislative attention to the issue of transgender athletes’ participation in interscholastic sport (see Table 5). Six of these seven have either a democratic trifecta state government (4) or a unified democratic legislature (2). Additionally, the policies of the state HSSA in these six states explicitly permit sport participation in line with gender identity.
The seventh state is Nebraska — solidly Republican — and whose HSSA requires that students participate in sport in the gender listed on their birth certificate, in principle making legislation redundant.
California is the only state that has legislated participation according to the student’s gender identity:
California remains the only state with progressive legislation requiring that schools permit participation in line with gender identity. California has a democratic trifecta state government and democratic triplex.
Our paper includes a lengthy analysis of the political dynamics underlying the findings summarized above, which will be of interest to both political scientists and advocacy groups. With employ the well-known “multiple streams” framework of John Kingdon to organize our analysis.
We document that across the United States, those promoting restrictive policies (such as aligning participation to the gender listed on one’s birth certificate) do not frame issues in terms of evidence or science, but rather by appeals to values and biases. Science and evidence associated with claims of unfairness, to the extent that they are invoked at all, are assumed or postulated rather than documented or studied. Science is a fig leaf here:
. . . . oftentimes political issues are prioritised based on their alignment with biases, interests, and the overall politics surrounding the issue, rather than reflecting an objective measure of their importance (Majone 1989). The data presented here suggest that perception is prioritised over a more objective evaluation as seen in the low number of state bills that give any scientific rationale for their proposal and in the political strategies and narratives of policymakers and interest groups that may use the transgender issue as a key battleground in a new culture war designed to attract centrists and suburban parents to the GOP (Orr 2020).
The particular issue of interest here is not what the scientific evidence says about competitive advantage or otherwise. Rather, it is the fact that the data show that the majority of states enacting or introducing legislation have done so by framing the issue to appeal to the biases and interests of the Republican party (i.e. commitment to traditional sex/gender conventions, fairness to female sport) with limited, if any attention, to evidence of trans girls or boys having an unfair or inappropriate competitive advantage over other girls and boys within a primary and secondary school context.
We identify a small group of national political advocates that are behind efforts to pass restrictive legislation across the states. Indeed, many of the laws passed by individual states share common language developed by these advocates. These are arguably thus not actually state issues, but issues brought to states by national campaigners.
Specifically:
. . . the major policy entrepreneurs coupling the streams and pushing for legislation against transgender inclusion in school sport are the Alliance Defending Freedom (ADF) and the American Principles Project (APP). These entrepreneurs have promoted a series of anti-trans bills dating back to 2015. More recently, these groups have found the transgender sport issue to be emotive with voters (Orr 2020), and have continued to invest heavily in a coordinated campaign focused on providing legal representation for female athletes against transgender athletes, lobbying state legislatures, creating and disseminating nationwide television and digital commercials to oppose the inclusion of ‘biological males’ in female sport, maintaining social media and website content opposing transgender athletes under the banner of parental rights, and preparing a template bill to enhance the ease with which state legislators can introduce legislation that prevents ‘biological males’ competing in female school sport (Orr 2021).
These various strategies introduce new concepts of symbols (e.g. a transgender girl winning a girls track event) and framing (e.g. using concepts such as ‘biological boys’, fairness, protection) that convey the party brand, sustain the symbolic politics with adversaries, and enhance the prospects of coupling the streams to achieve political ends.
The bulk of our paper offers a much more detailed and nuanced political analysis, which I won’t dive further into here — but please read the paper if you are interested.
Jumping to our conclusions, the political dynamics are not difficult to understand, but the impact of this political campaign on the young people at the focus of the legislation is not well understood.
Efforts to ban transgender athletes from participating in sports – both in general or in their legal gender category – are not solely about sport, nor solely about trans-rights. They are part of a much larger and ongoing political project in the U.S. among a faction of the GOP to roll back a variety of gains achieved by the LGBTQI+ community (Kindy 2022). From the now-familiar ‘bathroom bills’ or ‘Don’t Say Gay’ bills to more recent limitations on healthcare, adoption, school curricula, and even parenting, state legislatures across the country have devoted substantial resources to addressing this putatively urgent issue, even though child welfare advocates, much of corporate America, and a sizeable portion of the national electorate oppose anti-trans policies (Ronan 2021).
Our analysis shows that the degree to which a legislature pursues anti-trans sports legislation is strongly correlated with its partisan composition, with Republican bodies significantly more likely to enact bills into law. A Gallup poll conducted in May 2021 bears out the political expediency for Republicans behind these legislative efforts: 86% of Republican respondents thought that athletes should play on teams that matched their birth gender, while only 10% thought that athletes should participate in alignment with their expressed gender identity (McCarthy 2021).
The extremely small number of trans athletes, trans girls in particular, clearly indicates that legislative action is a solution in search of a problem. It just so happens that both the solution and problem are about national partisan politics, rather than a real-world crisis within states requiring concerted action.
These dynamics suggest that both sport and the general public are being exploited by political entrepreneurs in hope of securing a partisan advantage:
It is unlikely that this will be the last time that sport finds itself being used as a convenient laboratory for the trial and testing of political symbols intended to inflame partisan politics. Sport retains a central position in American culture and is often characterised as apolitical, despite the obvious realities to the contrary. The values invoked to justify the importance of anti-trans legislation (fairness, safety) are deeply linked to conceptions of good sport; so too are the values upon which opposition to this legislation is based, such as inclusion and health.
There is no doubt that this issue will continue to evolve, with federal policy — via Congress (unlikely) or the courts (more so) — a possible result.
Moreover, as a matter of policy, state-level intervention may ultimately be superseded by federal law, policy or regulations. The US. Department of Education under the Biden Administration has proposed rules that would make it illegal to discriminate in education on the basis of gender identity, thus potentially coming into conflict with state-level bans on trans participation in sport under their legal gender. This conflict may ultimately lead to challenges in federal court, with the Supreme Court a possible venue for the resolution of this issue. It is also possible that the state-level legislation diffuses vertically to be the subject of federal legislation under a possible future Republican Congress and president. What is certain is that the fast-moving legislation across states of the past few years represents just the start of what is sure to be a longer-term political and policy dispute in the United States.
As always, I welcome your comments and questions! Thanks for reading.
To read the full analysis, see:
Harris, S., Jedlicka, S., Pielke Jr, R., & Ryan, H. (2023). The politics of exclusion: Analyzing US state responses to interscholastic transgender athletes. International Journal of Sport Policy and Politics, 1-22.
Paid subscribers can access a PDF below — anyone else is welcome to email me for a copy.