By Aaron Lacey, ESQ
On June 26, the U.S. Supreme Court decided that no state could limit or prohibit same-sex marriages in an opinion that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons… to define and express their identity.” As gay and lesbian couples celebrate the legal affirmation of their identity, another group within the LGBTI universe, one present on many campuses, continues to work toward greater recognition of its own: the transgender community. These efforts have been rewarded in recent years by federal policy makers, as agencies for the first time have articulated their positions regarding the application of federal discrimination laws to transgender individuals.
Postsecondary institutions, in response, have been working hard to better incorporate transgender employees, students, and student-athletes into campus life, including revising discrimination statements and updating policies and procedures to comply with emerging guidance. However, as is always the case when crafting new policies based on developing law (a common occurrence in contemporary higher education), questions remain regarding the practical application of such guidance, and how it should be implemented when in conflict with guidance issued by other organizations. As we discuss below, such conflict appears to be particularly present in the realm of college athletics.
Emerging federal policy regarding transgender individuals on campus
Federal policy impacting the treatment of transgender individuals on campus first began to take shape in 2012. At that time, the EEOC held in Macy v. Department of Justice that discrimination against an employee based on his or her transgender status constitutes “sex discrimination” and, as such, is prohibited under Title VII of the Civil Rights Act of 1964. In reaching its decision, the Commission expressly overturned its own prior decisions, in which it historically had held that claims of discrimination based on the transgender status of an individual were not actionable.
Two years later, in an April 2014 guidance letter, the U.S. Department of Education’s Office of Civil Rights, for the first time, officially stated its position that the prohibition on sex discrimination found in Title IX of the Education Amendments of 1972 protects individuals from discrimination based “on gender identity or failure to conform to the stereotypical notions of masculinity or femininity.” The Department affirmed this position in a subsequent December 2014 guidance letter, specifically stating that students who are transgender or do not conform to gender stereotypes are protected from sex-based discrimination under Title IX. In addition, the Department observed in the letter that where a school separates students on the basis of sex (e.g., restrooms, dorms, athletic activities), the school “generally must treat transgender students consistent with their gender identity.”
Most recently, in February 2015, the Department submitted a “Statement of Interest” in Tooley v. Van Buren Public Schools, a federal court case filed in Michigan in which a transgender boy argues that his public school violated Title IX and the Equal Protection Clause. In its Statement of Interest, the Department offers the most comprehensive discussion to date of its views regarding the application of Title IX to transgender individuals.
According to the plaintiff in Tooley, the school did not allow him to use the bathroom consistent with his gender identity, and “outed” him to both students and parents, referring to him as “Olivia,” and using feminine pronouns when referring to him in class. At the outset of its argument, the Department states:
Similar to the language of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ” 2000e et seq., Title IX prohibits discrimination “on the basis of sex” in education. 20 U.S.C. § 1681(a)… “On the basis of sex” includes discrimination based on the fact that an individual is transgender (i.e., has a gender identity different from the person’s sex assigned at birth) or the perception that an individual has undergone, or is undergoing, a gender transition.
The Department then argues that the facts presented by the plaintiff in Tooley establish a prima facie case of sex discrimination based on his gender identity, transgender status, and nonconformity to sex stereotypes, citing its earlier guidance that a school “generally must treat transgender students consistent with their gender identity.”
The NCAA’s approach
At the heart of the Department’s position in Tooley is the principle that a postsecondary institution should, in all respects, and at all times, treat a transgender student or employee consistent with his or her gender identity, as articulated by the transgender individual. This position is consistent with, and generally reflects, the positions being advanced by other federal agencies, including the Equal Employment Opportunity Commission and the Department of Justice. It is not entirely consistent, however, with the position articulated by various governing bodies and associations that oversee professional and collegiate athletics, including, most notably, the National Collegiate Athletic Association (NCAA).
In August 2011, well before the federal government began to articulate its views regarding the application of federal law to the treatment of transgender individuals on campus, the NCAA addressed the incorporation of transgender individuals into NCAA-sanctioned competition. In a document titled “NCAA Inclusion of Transgender Student-Athletes,” the NCAA’s Office of Inclusion outlines the following participation guidelines for transgender men and women, respectively:
A transgender male (assigned the female sex at birth) who is not taking any hormone treatment related to gender transition may compete on either a women’s team or a men’s team. However, if the transgender male has received a medical exception for treatment with testosterone, the transgender male’s participation on a women’s team would render the team ineligible to compete for a women’s NCAA championship.
A transgender female (assigned the male sex at birth) who is not taking any hormone treatment related to gender transition may not compete on a women’s team, or the team will become ineligible to compete for a women’s NCAA championship. Only after completing a calendar year of testosterone suppression treatment may she compete on a women’s team without impacting the team’s eligibility status.
This NCAA policy approach, which requires in certain instances that medical benchmarks be achieved before an athlete may compete consistent with his or her gender identity, is similar to the policies of the National Junior College Athletic Association, International Olympic Committee, USA Track and Field, USA Boxing, and a host of other governing bodies of amateur and professional athletics. Although the details differ, such policies seek to quell objections concerning the “legitimacy” of an individual’s transgender status — and ensure the fairness of the athletic competition — by requiring transgender individuals to demonstrate that various benchmark combinations have been achieved before they may compete consistent with their gender identities.
The Department, however, does not in any way qualify its position regarding the treatment of transgender individuals. In the Department’s view, an institution’s obligations under Title IX are not impacted by the nature of the gender transition (i.e., male to female or female to male), nor by the degree to which the transition has been completed. Similarly, there is no expectation that an individual demonstrate that any medical steps have been taken to facilitate a transition, or that the stated gender is sincerely held or otherwise inherent to the individual’s identity. And the Department’s policy, it should be noted, applies equally to the campus, the court, and the field.
Dealing with policy discrepancies
Of course, this discrepancy between the NCAA and federal policies creates a dilemma for campus administrators. If a transgender female with less than a calendar year of testosterone suppression treatment tries out for and makes an NCAA women’s team, how should an institution respond? If the institution permits the transgender woman to compete, it jeopardizes the eligibility of the team to compete for an NCAA championship. If the institution refuses to permit the transgender woman to compete until the medical benchmarks have been satisfied, it appears to violate Title IX.
We readily acknowledge that the likelihood of any particular administrator contending with this scenario is remote. To our knowledge, the number of transgender athletes seeking to compete on NCAA teams, even if increasing, remains in the single digits. In addition, some athletic associations, like the National Association of Intercollegiate Athletics (NAIA), remain silent on the issue of transgender athletes. As such, there is no tension between association guidelines and federal policy. And some organizations that oversee athletic competition have adopted policies that are consistent with the views expressed by the Department. The National Intermural-Recreational Sports Association (NIRSA), for example, updated its policies in 2014 to permit individuals to compete consistent with their gender identity, without qualification.
Nonetheless, the discord between the Department’s position and the NCAA policy, which is emblematic of policies implemented by amateur and professional athletic associations around the world, suggests that additional discussion is warranted regarding the application of federal anti-discrimination laws to transgender individuals participating in collegiate athletic competition. The time for this conversation is unquestionably ripe. Recognition of the transgender community is increasing rapidly, and the individual arguably contributing most to its rise is Caitlyn Jenner, a transgender woman formerly considered the world’s greatest athlete.
Aaron Lacey is a partner in Thompson Coburn’s Higher Education practice, and editorial director of REGucation, the firm’s postsecondary law and policy blog. You can reach Aaron at (314) 552-6405 or alacey@thompsoncoburn.com, or find him on Twitter (@HigherEdCounsel). This article originally appeared as a REGucation post. It should not be considered legal advice. You should contact an attorney if you have specific questions about the issues discussed here.
