Women fought for decades to participate in high school and collegiate competitive sports.
Some say that progress is in jeopardy as transgender girls and women compete in women’s athletics.
Lawmakers across the country are leaning on previous progress to turn away transgender girls from competition.
More than two dozen states are debating versions of the same legislation. The bills segregate high school and college sports based on an athlete’s biology or, more specifically, based on an athlete’s gender at birth.
“Women are being replaced by biological males,” Milstead says. “We want to just make sure that it’s fair for women.”
That’s Republican State Representative Rhonda Milstead, of Sioux Falls. She’s the prime sponsor of South Dakota’s bill. Milstead wants to prevent transgender girl athletes from winning unfairly.
“When Title IX was enacted, it was because women had been fighting, and girls had been fighting, for the right for fairness in sports. So, for 50 years, they’ve been active in sports, winning awards, there’s scholarships, there’s all kinds of things that happen when they participate as females.”
Title IX is a federal law that protects people from discrimination in any federally funded school program - based on their sex. Milstead’s bill is model legislation that’s being considered in other states. While some states have simply introduced a bill, many have referred it to a committee for consideration. However, only one state, Mississippi, has a bill signed into law by the governor.
In South Dakota, the bill passed in the House and was revived in the Senate. Governor Kristi Noem says the bill protects women’s sports.
“And, going forward, that that fairness is there that was promised by Title IX and what it means to enforcing that in regards to our constitution, as well,” Noem says.
South Dakota’s current transgender athlete policy is determined on a case by case basis. The state athletics association reviews a transgender athlete’s application. That includes doctors’ notes indicating the athlete is transgender. The association then determines if that athlete would have a competitive advantage. The policy has been used once in the past eight years, when a transgender girl played on a girls’ sports team.
The legislative proposals are part of a national effort. Jennifer Braceras is with the Independent Women’s Law Center. She supports the bills and says they’re designed to push back against states that allow transgender girls and women to compete.
“Men are winning scores of state titles—women’s titles—and, I’m sure—I’m not from South Dakota—but my guess is that legislators see the writing on the wall. If they don’t act defensively, eventually this movement will come to South Dakota.”
When asked for examples, Braceras points to Connecticut. There, several female runners filed a lawsuit in 2020 saying they were deprived of athletic opportunities. Connecticut law allows transgender girls to compete on the women’s track teams.
“I see it really as a defensive act,” Braceras says. “This is happening all over the country and it’s not fair to girls.”
However, some say the bill won’t hold up in the courts.
“I don’t think you can make those arguments with a straight face.” says Libby Skarin, who works for the ACLU of the Dakotas and Wyoming. “I think this is really about something else. It’s about a coordinated political tactic to get discrimination against transgender people enshrined into law.”
Skarin says the legislative proposals ignore two decades of precedent set by federal courts and the U.S. Supreme Court.
“Discriminating against someone because they are transgender is sex discrimination and that is prohibited by Title IX,” Skarin adds.
Despite legal precedents, proponents say athletes born female should not have to compete against athletes born male.
Beth Stelzer is with the group Save Women’s Sports. She’s a housewife, mom and amateur power-lifter from Minnesota.
“When I picked up a barbell for the first time it changed my life,” Stelzer says. “Power-lifting empowered me.”
In a legislative hearing, Stelzer told South Dakota lawmakers that competition inspired her to compete the next year. She trained intensely, two to three hours a day, five days a week. Stelzer says she even trained around a miscarriage. But she says the event was interrupted when a transgender woman, someone she calls a male, was prevented from competition.
“As the day approached, anticipation and excitement were my constant companions. However, activists sullied the day of the contest for everyone there. They disrupted the entire event because a male was not allowed to compete in the women’s championships.”
Stelzer says she never would have bothered training as a power-lifter, if she knew she’d have to compete against transgender women athletes.
“There would be no point," she says.
Stelzer also testified before a North Dakota legislative committee on its version of the bill.
Some women are suspicious and deeply disappointed at how women’s history has become a rallying point for these bills. Sara Lampert is associate professor of history and coordinator of the Women, Gender and Sexuality studies program at the University of South Dakota.
“If you’re going to make arguments about women’s progress here, you need to think about which women you’re thinking about and which women you’re not thinking about,” Lampert says.
Lampert says those who want to prevent trans athletes from competition point to past policy changes designed to protect against gender-based discrimination. She says this bill suggests that women could never succeed competitively based on sexual stereotypes.
“What folks invested in progress for women are trying to do is challenge that—that gender essentialism—and those gender stereotypes and this idea that all women look a certain way, behave a certain way, that their bodies are the same and that they need protecting. That’s crap.”
Lampert says at the heart of the bill is a goal to mischaracterize transgirls and transwomen by referring to them as boys or men or biologically male.
Governor Kristi Noem has until March 26th to sign or veto the bill. The ACLU has not yet said whether it will support a legal challenge.