By John G. Long, of Michael Best & Friedrich
The Office for Civil Rights (OCR) recently issued a “Dear Colleague Letter” (DCL) regarding the protections that Title IX affords to transgender students who face discrimination. The DCL reiterated OCR’s previously declared stance that the department treats transgender student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. Summarily stated, transgender students should be treated the same as other students of the gender in which they identify.
The DCL identified specific aspects of the educational experience in which potential discrimination against transgender students can occur. Potential violations of Title IX which were referenced in the DCL include:
Restricting transgender students from using the restroom or locker room that corresponds with the student’s gender identity;
Verbally or physically harassing transgender students;
Referring to transgender students as the incorrect gender, or the utilization of incorrect pronouns to identify the student;
Restricting transgender student access to single sex schools or classes;
Restricting transgender student access to single sex housing in conjunction with academic institution attendance, and;
Failure to take reasonable steps to protect privacy information related to students’ transgender status.
OCR identifying these examples as potential Title IX violations should come as no surprise to administrators and attorneys who have been following the department’s position on this topic over the past years; the DCL did tread some new water on the topic of athletic participation.
OCR’s desire to take a position on transgender student access to participate on single-sex sports teams has been a source of speculation. While OCR has consistently held that gender identity, as opposed to gender assigned at birth, should dictate the access that transgender students have to educational benefits and services, the National Collegiate Athletic Association (NCAA) has maintained a policy since 2011 which calls for transgender students to take a number of steps before they can be granted access to participate in the single-sex sport of their gender identity, including diagnosis of gender identity disorder and in some instances hormonal treatment.
OCR declared in the DCL that educational institutions are not prohibited from promulgating policies that condition or restrict transgender access to participate in single-sex sports of the transgender student’s identity when those policies are age-appropriate. In addition, OCR declared that policies restricting transgender student access to sports of the student’s gender identity are acceptable if they are not based on overly broad stereotypes or generalizations about transgender students, but rather are based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.
Three important takeaways for educational institution administrators are:
OCR’s athletic access policy for transgender students is consistent with OCR’s policy on operating and sponsoring single-sex male and female teams. OCR’s policy that allows schools to operate all male and all female teams is founded on the premise that the participation of the opposite sex in the sport could jeopardize the competitive equity of the sport or subject participants to physical harm in the case of contact sports. OCR sticks to the same criteria here: competitive equity and safety.
OCR’s position serves as an approval of the NCAA policy on transgender access to varsity sports at the intercollegiate level. The department explicitly states that the NCAA policy is age-appropriate, and based on sound scientific research.
While OCR’s stance on the NCAA’s policy is clear, OCR’s position is somewhat ambiguous for middle schools, high schools, junior colleges and universities that offer club and intramural sports. Administrators at schools who fall into these categories are now confronted with the arduous task of determining whether automatically allowing transgender access to their various sports programs is appropriate, given the OCR’s conditioned stance.
On point three, administrators of educational institutions who are working on policies to govern transgender student access to middle school sports, high school sports, junior college sports and college varsity and intramural sports should consider the following questions:
Is restricting automatic transgender access to single-sex middle school sports age-appropriate?
Research on the rate of traumatic injuries that occur in contact sports at the high school level is revealing that more injuries occur in high school contact sports than was previously believed. Research on the rate of injuries in middle school contact sports, such as football, lacrosse and hockey is not as developed, but stories have emerged that seem to demonstrate the physical risk of participating in middle school contact sports, even at the middle school level. Similarly, the effect of opposite gender integration in single-sex sports at the middle school level is less likely to result in a potential competitive imbalance as it is at the high school level. Administrators of middle schools who choose to adopt a policy that conditions the access of transgender students from automatic participation in sports of their gender identity will need to support such a policy with scientific research demonstrating the risk of injury or harm on competitive balance.
Such administrators will also need to address the basic question of whether or not the selection of participants for middle school sports is based upon competitive skill in the first place. For example, middle school football in Texas might have different criteria for selection than middle school tennis in Alaska.
Is a policy for transgender student access to varsity high school sports that is similar to the NCAA’s policy appropriate for high school interscholastic athletic associations?
While participation in high school sports is very often conditioned on competitive skill, like college varsity sports, the DCL stopped short of declaring that high school athletic associations are free to adopt the same policy as the NCAA. Varsity high school contact sports seem less ambiguous, as more and more medical studies are revealing the high risk of physical harm that comes with participating in varsity high school contact sports. Conditioning automatic transgender student access to single-sex non-contact sports is a little less clear. Interscholastic athletic associations who choose to condition transgender access to single-sex non-contact sports should be prepared to support their policy with “sound” medical studies that objectively demonstrate that the participation of transgender students would harm the competitive equity of the sports in which the policy applies.
Would a policy that conditions transgender student access to single-sex club or intramural sports at junior colleges and four year colleges violate Title IX?
Given that this scenario involves students who are the same age as NCAA athletes, it can be assumed that such a policy would be considered age-appropriate. In addition, in sports like such as soccer, lacrosse and field hockey, the risk of injury could also be construed as similar to participation in the same sport at the varsity level. The interesting dynamic with intramural sports and to a lesser degree club sports is the absence of the “competitive skill” criteria for participation. Often in intramural sports, any student is eligible to participate, and this factor alone could lead the OCR to conclude that transgender students should be granted automatic access to single-sex intramural sports of the student’s gender identity. While club sports are often taken more seriously than intramural sports, it is undisputable that club sports are a level below varsity sports in competition level, as evidenced by the lack of recruiting, competitive coaching and athletic scholarships. College administrators should be wary of conditioning or limiting transgender student access to non-contact intramural and club sports, where the scientifically supported risk of injury is not as apparent.
In conclusion, while OCR has advanced its position regarding transgender student access to single-sex sports, there is still quite a bit of ambiguity to resolve. It is my guess that we will continue to see this issue develop at the rapid pace that we have experienced over the past few years.
