Tracking similarities in transgender sports bans across the country

Apr 14, 2022, 7:11 AM | Updated: Jun 19, 2022, 10:00 pm

SALT LAKE CITY – After learning about two transgender sprinters winning girls’ races on the other side of the country four years ago, Idaho Rep. Barbara Ehardt got to work.

The Republican lawmaker and basketball coach of more than 30 years said she feared cisgender girls in her own state could lose out if the state didn’t step in to restrict transgender athletes’ participation in school sports.

“Gosh, somebody should do something,” she remembers thinking. “And it dawned on me that I was the person that could do something.”

But she needed help navigating the legal nitty-gritty, so she consulted the Alliance Defending Freedom (ADF), she said. Eventually, the Arizona-based conservative Christian legal group decided to play a bigger role in her effort, she told the KSL investigators, sending her a model bill its attorneys drafted.

The measure passed in 2020, becoming the nation’s first law banning transgender girls in school sports. Other states, including Utah, were quick to follow. Fifteen now have bans in place, although some are on hold because of lawsuits.

A national wave   

The proposals have cropped up in a total of 38 states, with many mirroring much of Ehardt’s measure.

To analyze just how closely they align with the original Idaho law, the KSL Investigators compared them using software designed to check for plagiarism.

We found one bill introduced in West Virginia, for example, is nearly a carbon copy, at a 95% match. The state ultimately passed a different version that had less in common – 9% — with the Idaho law. But like Idaho, it cited “inherent differences” between men and women as “cause for celebration.”

Similarities across several states include other word-for-word references to traits like lung volume and testosterone, and other statements about differences in biology. Many include notes about prior court cases and include a basis for cisgender players to sue if their school doesn’t follow the law and they believe they’ve been deprived of an opportunity.

Overall, the KSL Investigators found versions of bills in six states that were at least a 50% match to Idaho’s bill, in addition to West Virginia: Florida (54%), Kansas (65%), New Jersey (80%), North Carolina (66%) Rhode Island (73%) and Mississippi (77%).

Some of the measures we analyzed using Copyscape’s program were later revised, and not all similarities were apparent due to punctuation or numbering on the bills.

We found 12 states with measures that had less than 5% in common with Idaho, including Alabama and Connecticut, which both had zero matching phrases. Eight more states ranged in the 5%-20% zone, five more hovered in the 20-29% realm, and another five varied from 30-46%.

Utah’s unsuccessful 2021 proposal was just a 9% match to Idaho, and the rate dropped lower for the 2022 version set to go into effect in July, which had almost no word-for-word similarities.

Rep. Kera Birkeland, R-Morgan, who sponsored the Utah measures, said ADF sent her a model bill, but as she hammered out details and negotiated with advocates and others, it underwent drastic changes. For example, Birkeland, a high school girls basketball coach, says she wanted to allow transgender kids to be practice players for girls’ teams, while ADF’s version did not. 

Rep. Kera Birkeland, R-Morgan, the sponsor of HB11 Student Eligibility in Interscholastic Activities, speaks at a hearing Monday. The bill would appoint a commission to decide if transgender kids can play sports. (Scott G. Winterton, Deseret News)

Last year, Ehardt testified in favor of Birkeland’s bill and others in Montana and South Dakota.

When lawmakers in other states got in touch, Ehardt said she referred them to ADF for help with tricky legal questions.

She described the organization as “hugely helpful, especially when it comes to the legality. They cross their t’s and dot their i’s, and it’s just simply something that legislators can’t do.”

Outside influence 

The group is part of a coalition called Promise to America’s Children, which also includes the conservative American Principles Project and Eagle Forum, among others. The coalition backs bills like Ehardt’s, and its website offers to send model bills to lawmakers.

Political scientist Matthew Burbank says it’s no secret that legislators don’t always craft their own proposals, and groups from both the political left and right often draw up proposals to pitch.

“You kind of think, well, that’s odd that, you know, both Alabama and Utah and North Dakota are all debating the same piece of legislation,” Burbank said. “And almost always it’s coming through those channels of somebody pushing model legislation.” 

For example, he said, organizations like the conservative American Legislative Exchange Council often draft model bills focused on issues like taxes or technology.

In recent years, however, more proposals tied to social issues have surfaced, he said, and many have sailed through overwhelmingly Republican statehouses.

But it can be difficult to know who is backing the efforts.

KSL+: Unpacking HB11 and the debate surrounding transgender athletes

Unlike political campaigns, organizations pushing legislation aren’t required by law to disclose exactly where the money comes from, Burbank noted.

ADF didn’t answer KSL’s questions about how many states it worked with on the bills. But a spokeswoman emphasized that it’s common for lawmakers to ask groups from across the political spectrum for feedback on bills.

The organization raised about $65 million in 2020, tax returns show. And it does more than help write legislation.  

ADF also gets involved in court cases. The group intervened in lawsuits over the legislation now on hold in Idaho and West Virginia, and previously it represented a Colorado baker who refused to make a cake for a gay couple in 2012.

“ADF is regularly invited to draw upon our constitutional expertise to provide input into forthcoming bills,” the nonprofit said in a statement, adding it has argued several cases before the U.S. Supreme Court.

The bans on transgender students in sports are characterized by emotional debate. Supporters say they’re needed to guarantee an even playing field because of the potential physical advantages some transgender girls could have.

“These girls have a right under Title IX to compete with a fair playing field,” Birkeland said, referring to the federal law barring discrimination based on sex in schools.

But opponents say the legislation is unconstitutional and discriminatory. While Utah’s new law is focused on school sports, more is at stake, according to Gillian Branstetter, press secretary for the National Women’s Law Center in Washington, DC. 

“This is critically, an effort to keep the door open towards more harsh penalties,” Branstetter said. “Exclusion of transgender girls from sports helps the very extreme movement that is doing far, far worse harms to transgender people.”

Birkeland said she sees it differently.  

“It’s not discriminatory by nature to say if you want to play our sport, you’re absolutely welcome to try out, and here’s the team that you must try out for,” she said.  

A last-minute change

After the 2021 bill failed, politicians and advocates spent about a year negotiating. They hammered out a compromise that would create a commission to determine a transgender student’s eligibility to play a sport.  

The plan fell apart in the last hours of the 2022 session after Birkeland says only an all-out ban had the support to pass.  

After a year of negotiating behind the scenes, Troy Williams with Equality Utah said the last-minute change did not fit with Utah’s collegial style of politics often referred to as the “Utah Way.”  

Lawmakers override Cox veto, ban transgender athletes in high school sports

He says several Republican lawmakers called him up with a similar message. 

“I hate this bill,” he recalled them saying. “I don’t want to vote for it. But the county convention is coming up, and I’m fearing for my political seat.” 

Williams noted four transgender students in Utah play sports and just one is a girl. He says they deserve the same opportunities as their classmates.  

“It’s moral panic, it’s hysteria, and it’s cruel,” he said of the law.   

Birkeland believes Utahns had ample opportunity to express their views.   

“We had a whole year-plus of discussion of what would a ban look like and how far — how extensive — would that ban be,” she said. 

After Gov. Spencer Cox vetoed the measure with an impassioned rebuke, lawmakers overrode the Republican governor’s veto. The law takes effect July 1.  

Emiley Morgan and Daniella Rivera contributed research.   

Have you experienced something you think just isn’t right? The KSL Investigators want to help. Submit your tip at investigates@ksl.com or 385-707-6153 so we can get working for you.

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Tracking similarities in transgender sports bans across the country