By Courtney E. Dunn, of Segal McCambridge
The specifics of transgender athletes competing both with and against cisgender athletes has become a topic on which schools, sports programs, and leagues nationwide have been seeking guidance. With positions rooted in tradition, fairness, privacy, and the risk of personal injury on both sides of the coin, interscholastic athletic associations and local leagues are in the process of navigating best practices for all athletes. While there has been no clear answer to this new legal landscape, defining factors determining the placement of transgender athletes have been emerging on a state-by-state basis, with an amendment to Title IX and similar governing authority in the mix. Ultimately, it will likely take a Supreme Court ruling on this topic to reach a conclusion, but in the meantime, leagues are left to their own devices to come up with a plan that best suits all athletes.
Title IX Amendment
The purpose of Title IX is to regulate equity and fairness in sports. Naturally, then, it is a starting place to seek answers for transgender athletes’ eligibility on teams which have historically been cisgender. Under the proposed Title IX regulation, schools are met with flexibility; it mandates that public schools from kindergarten to the twelfth grade would not be permitted to adopt a “one-size-fits-all policy that categorically bans transgender students from participating on teams consistent with their gender identity.” Instead, schools are given the opportunity to develop “team eligibility criteria.” The Department of Education, however, has not addressed what criteria to apply to determine an athlete’s eligibility. For example, questions remain as to what criteria is in the realm of Title IX’s nondiscrimination on the basis of sex requirement. Can a school determine a player’s eligibility based upon his or her birth certificate information? Does the criteria take into account certain sports versus others, and the likelihood of injury or privacy issues associated with them? Can a school determine criteria based upon a student’s gender identity, regardless of whether he or she has begun to/plans to transition physically? With ambiguities, the Title IX amendment has not set forth a clear path tailored to all athletes that would absolve schools of liability based upon discrimination.
Protection of Women and Girls in Sports Act of 2023
This bill[1], which passed the House of Representatives on April 20, 2023, generally acts to prohibit school athletic programs from allowing individuals whose biological sex at birth was male to participate in programs that are for women or girls. It suggests that it would be a violation of Title IX for federally funded education programs or activities to operate, sponsor, or facilitate athletic programs or activities that allow individuals of the male sex to participate in programs or activities that were previously designated for women. According to the bill, sex is based on an individual’s reproductive biology and genetics at birth. It is worth noting that the bill does not prohibit male athletes from training alongside female athletes, as long as doing so does not deprive female athletes of corresponding opportunities, such as scholarships – another factor that is heavily weighed within this general landscape.
State-By-State Regulations
In the absence of a categorical set of instructions, states have formed their own guidelines by which they currently operate. Across the country, some states have taken to determining which team an athlete will play on based solely upon the sex listed on his or her birth certificate. Other states have banned transgender women from participating in women’s sports, though there is often no reciprocating ban for transgender men who seek to participate in men’s sports. Perhaps this is a less sought-after endeavor. Not all policies have been as cut and dry – Arizona, for example, requires students to submit a letter telling the student’s “gender story,” which is a letter of support from a parent or healthcare provider. Arizona has a Gender Identity Eligibility Committee which then reviews a prospective athlete’s gender story to determine placement. New Jersey previously proposed the “Fairness in Women’s Sports Act.” This Act mandated that athletes were required to “prove” their gender by providing a doctor’s note indicating a genital exam or a testosterone/chromosome panel. Not every state has drafted such strict legislature, and it is expected that these policies will continue to shift as the legal landscape is solidified.
While this topic is widely debated, there is no official count of transgender athletes at any level. That being said, there is still the risk of exposure to liability for sports programs if not handled with care. While the obvious risk is discrimination, remaining concerns include personal injury lawsuits and privacy violations. In terms of personal injury, there is no set statistic regarding increased risk of harm on the playing field, or whether insurance companies can expect to adjust their policies accordingly. Seemingly handled on a case-by-case basis, the latter has been considered discretionary for the time being so long as adequate consideration is given to accommodations on a nondiscriminatory basis.
Despite the various attempts at inching toward general resolution, anecdotes are publicized daily detailing perceived discrimination from both transgender and cisgender athletes who have been affected by this growing issue. A topic to be taken in stride, schools and organizations should expect to be met with more questions than answers while the details of eligibility are parsed out. Aside from the unresolved question of transgender athletes performing on cisgender teams, yet to become broadcast have been these same questions with regard to athletes who identify as nonbinary or gender fluid, and what their eligibility criteria for their preferred teams and sports would look like.
For now, there is no hard and fast rule delineating how to proceed liability-free. The only clear guidance is that a categorical ban of transgender athletes participating in a sport, absent the consideration of some form of eligible criteria, is discriminatory.
[1] https://www.congress.gov/bill/118th-congress/house-bill/734
