By Alyson J. Guyan and Gregg E. Clifton, of Jackson Lewis
“Transgender” is an umbrella term for a person whose gender identity presentation is outside stereotypical gender norms and who may seek to change his or her physical characteristics through hormones, gender reassignment surgery, or other actions. Specifically, one’s internal psychological identification as a boy/man or girl/woman does not match the person’s sex at birth. For example, a male-to-female (MTF) transgender person is someone who was born with a male body, but who identifies as a girl or a woman. A female-to-male (FTM) transgender person is someone who was born with a female body, but who identifies as a boy or a man.
There is no federal anti-discrimination law based on gender identity or expression; however, federal courts and the EEOC have concluded that transgender discrimination is discrimination “based on … sex” and violates Title VII and some state courts and human rights agencies have ruled transgender employees are protected by their state anti-discrimination laws. Many states have also explicitly included gender identity and/or gender expression in their employment non-discrimination statutes. In addition, many employers, including schools, are adding gender identity or expression to their non-discrimination policies. Many parents and student-athletes are insisting that athletic programs accommodate transgender students and requiring educational leaders to ensure these students have access to equal opportunities in all academic and extracurricular activities (including athletics) in a safe and respectful school environment.
The National Collegiate Athletic Association (NCAA), which organizes athletic competition at over 1,000 colleges and universities, does not require gender confirming surgery or legal recognition of a player’s transitioned sex in order for transgender players to participate on a team which matches their identity. However, the issue of transgender athletic participation becomes more complicated when the athlete’s use of hormone treatments is at issue.
In 2011, the NCAA’s Office of Inclusion, “to provide guidance to NCAA athletic programs about how to ensure transgender student-athletes fair, respectful, and legal access to collegiate sports teams based on current medical and legal knowledge,” provided best practices and policy recommendations for member institutions, as well as guidance for implementing those policies.
Any transgender student-athlete who is not taking hormone treatment related to gender transition may participate in sex-separated sports activities in accordance with his or her assigned birth gender.
A trans male (FTM) student-athlete who is not taking testosterone related to gender transition may participate on a men’s or women’s team.
A trans female (MTF) transgender student-athlete who is not taking hormone treatments related to gender transition may not compete on a women’s team.
The participation of FTM and MTF student-athletes who are currently undergoing hormone treatments is treated differently.
A FTM student-athlete who has received a medical exception for treatment with testosterone for diagnosed Gender Identity Disorder or gender dysphoria and/or Transsexualism may compete on a men’s team, but is no longer eligible to compete on a women’s team without changing the team status to a mixed team. A mixed team is only eligible to compete for men’s championships.
A MTF student-athlete being treated with testosterone suppression medication for Gender Identity Disorder or gender dysphoria and/or Transsexualism may continue to compete on a men’s team, but may not compete on a women’s team without changing it to a mixed team status until completing one calendar year of documented testosterone-suppression treatment.
The use of banned substances, like testosterone, by student-athletes further complicates the issues for FTM and MTF student-athletes. Specifically, NCAA Bylaw 31.2.3 identifies testosterone as a banned substance, and provides for a medical exception review for demonstrated need for use of a banned medication. It is the responsibility of the NCAA institution to submit the request for a medical exception for testosterone treatment prior to the student-athlete competing while undergoing treatment. In the case of testosterone suppression, the institution must submit written documentation to the NCAA of the year of treatment and ongoing monitoring of testosterone suppression.
Another NCAA regulation that can be impacted by transgender student-athlete participation is mixed team status. A mixed team is a varsity intercollegiate sports team on which at least one individual of each gender competes. A mixed team shall be counted as one team. NCAA rules state that a male participating in competition on a female team makes the team a “mixed team.” Such a team is ineligible for a women’s NCAA championship but is eligible for a men’s NCAA championship. However, when a female competes on a men’s team, the team remains eligible for a men’s NCAA championship. Once a team is classified as a mixed team, it retains that status through the remainder of the academic year without exception.
Though the number of transgender students is small, research indicates that the number is growing. As the number of people who assert their status as transgender as teenagers and children increases, support for their specific transgender rights has also increased. In response to these societal demands, college leaders must be prepared to accommodate the educational needs and protect the rights of transgender students. To respond to these realities, athletics conferences and individual universities/colleges are well advised to ensure their policies and procedures on the inclusion of transgender student-athletes are in line with the NCAA Inclusion of Transgender Student-Athletes best practices and policies to provide fair, respectful, and legal access to collegiate sports for all student-athletes.
