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Open in new tab By Christin Flynn Lal, JHBL Staff Member
On February 12, 2020, three female high school student track-athletes from Connecticut filed a lawsuit in federal court against the Connecticut Interscholastic Athletic Conference (“CAIC”) (Selina Soule, et al v. Ct. Ass’n of Schools, Inc., et al. No. 3:20-cv-00201-RNC). The complaint argues that CAIC’s policy, which allows transgender student-athletes to participate in sports based on their gender identity, is a violation of Title IX’s equal protection and accommodation for girls. By allowing “males,” meaning transgender girls, to compete against them in track events, CAIC irreparably harmed the plaintiffs by the loss of victories and the public recognition associated with victories; loss of opportunities to advance to higher-level competitions; and loss of visibility to college recruiters. Among other demands, the plaintiffs request relief by enjoining the two transgender girls from participating in the winter and spring 2020 track seasons.
Despite an increasingly open attitude among Americans to the inclusivity of transgender people, an unsettled legal definition of “sex” and whether “gender identity” is included in that definition has resulted in cultural and legal conflict. The visibility of transgender people is increasing in our society through entertainment, advocacy, and non-discrimination court cases for public accommodations and employment, and this most recent legal challenge brings the conflict to new boiling point in our nation’s schools.
Background of Transgender Students Under Title IX
Congress passed Title IX of the Education Amendments Act of 1972 (“Title IX”) with the goal of extending educational programs to women. Title IX reads “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” By any measure, Title IX has been a resounding success, with girls’ participation in high school athletics increasing exponentially, from approximately 250,000 in 1972 to 7.9 million students in 2017.
The inclusion of transgender people for purposes of sex discrimination under Title IX cases has primarily focused on issues around harassment. Cases settled by the Department of Education have clarified that under Title IX, sex discrimination includes harassment based both on “biological” sex as well as failure to conform to gender stereotypes. Critically, courts frequently look to Title VII as authority for guidance on Title IX cases because Title IX does not define “sex” or “on the basis of sex.” Federal courts and administrative agencies such as the Equal Employment Opportunity Commission (“EEOC”) regularly recognize that Title VII’s prohibition on sex discrimination applies to transgender plaintiffs. Many Title VII cases that involve sex discrimination specifically draw from the landmark Supreme Court case Price Waterhouse v. Hopkins in which a female employee was denied promotion in part because she did not conform to gender stereotypes. For example, in Whitaker v. Kenosha Unified School District No. 1 Board of Education, the Seventh Circuit applied Title VII principles in a Title IX context to find that the prohibition on sex discrimination requires schools to treat a transgender person consistent with gender identity, not necessarily sex assigned at birth.
A Patchwork of School Policies Puts Participation Rights at Risk
While courts have long recognized that states and even local school districts have broad authority to protect the physical, mental, and moral well-being of its youth, this freedom has resulted in a patchwork of conflicting policies as to transgender student-athlete participation causing confusion at interscholastic competitions. State interscholastic participation policies typically fall into three general categories: inclusive policies, policies requiring some medical intervention, and restrictive policies. Other states have no policies and leave the decision up to the individual school districts.
Connecticut’s policy is inclusive, meaning it allows participation for transgender student-athletes students in a sex-segregated sport that aligns with their gender identity without having to undergo any medical treatments. Other states, such as Texas, have restrictive policies which requires student participation in sports based on the assigned sex on their birth certificate. These requirements leave only those transgender students who have gone through the expensive and difficult process of obtaining a court order to correct gender markers on their birth certificates the option of participating based on their gender identity. Restrictive policies can sometimes lead to an absurd result. For example, when a Texas transgender boy named Mack Beggs wanted to participate on his high school wrestling team, because his birth certificate indicated he was assigned female at birth, he was forced to compete against girls despite his objections and having fully medically transitioned to a boy. He was subsequently undefeated, won two state girls’ championships, and is now wrestling in college on the men’s team under less restrictive, National College Athletic Association (“NCAA”) policies.
The Bottom-line for Transgender Student-Athletes
More important than winning state championships, getting media exposure or access to college scholarships, is the health benefit that all students gain from participation in sports. By contrast, exclusion, stigma and discrimination have long-lasting negative health consequences on transgender people, including greater risk of post-traumatic stress disorder, depression, anxiety, suicidality and hypertension as adults. In April 2019, the Trevor Project reported that 54% of transgender and non-binary respondents to their youth survey seriously considered suicide, and 29% of transgender and non-binary youth respondents attempted suicide. Sports participation can serve as a critical protective factor against adolescent suicide by helping to reduce the feelings of hopelessness and suicidal behavior, and contributing to a sense of belonging and greater social integration.
Throughout the complaint, the plaintiffs use the word “male” to describe the transgender athletes, denying their legally recognized status, denying their identities, and perpetuating the unfounded fear of males taking over girls’ sports. This strategy, along with the fact that some of the plaintiffs regularly place ahead of the transgender students in races, in fact, one plaintiff won a sprint race two days after filing the complaint, undermines any legitimate concerns that may be made about fairness. Courts have consistently upheld the rights of transgender students to participate in the daily life of high school as any other student, for them to use the facilities that align with their gender identities, and to be free of the physical and emotional harm of stigmatization and discrimination. Transgender adolescents are among the most vulnerable children in our population, and states have an obligation to protect the health and safety of each high school student by enacting non-discriminating statutes of inclusion. The particular vulnerability of transgender students can be mitigated by inclusion in athletics according to that student’s gender identity, giving them the same opportunity as any other student to enjoy the physical, social and emotional benefits that accompany being part of a team working towards common goals.
Sources
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Doe v. Boyertown Area Sch. Dist., 893 F.3d 518 (3rd Cir. 2018).
Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1048 (7th Cir. 2017).
Lindsay A. Taliaferro et al., High School Youth and Suicide Risk: Exploring Protection Afforded Through Physical Activity and Sport Participation, J. Sch. Health, Vol.78, No. 10, 545, 551-52 (2008).
Scott Skinner-Thompson & Ilona M. Turner, Title IX’s Protections for Transgender Student Athletes, 272 Wisc. Journal of Law, Gender & Society, Vol. 28:3, 271, 274 (2014).
Debunking the “Bathroom Bill Myth,” Accurate Reporting on Nondiscrimination: A Guide for Journalists, Glaad.org (April 2017). https://www.glaad.org/sites/default/files/Debunking_the_Bathroom_Bill_Myth_2017.pdf
Robert P. Jones, Natalie Jackson et al, America’s Growing Support for Transgender Rights, Public Religion Research Institute, (Apr. 2019). shttps://www.prri.org/research/americas-growing-support-for-transgender-rights/
Equal Access to Education: Forty Years of Title IX, U.S. Dep’t of Justice, 2 (June 23, 2012) hppt://www.justice.gov/crt/about/edu/documents/titleixreport.pdf
High School Policies, Transathlete.com (Sept. 2019) https://www.transathlete.com/k-12
Transgender wrestler Mack Beggs wins second Texas state girls’ championship, The Wash. Post (Feb. 25, 2018) https://www-washingtonpost-com.ezproxysuf.flo.org/news/early-lead/wp/2018/02/25/transgender-wrestler-mack-beggs-wins-second-texas-state-girls-championship/.
The Trevor Project, National Survey on LGBTQ Youth Mental Health 2019, https://www.thetrevorproject.org/wp-content/uploads/2019/06/The-Trevor-Project-National-Survey-Results-2019.pdf.
Christin Flynn Lal is a second year day student at Suffolk University Law School, and plans to practice public interest law with the goal of protecting the rights of vulnerable people. She currently interns at the Massachusetts Supreme Judicial Court, and previously interned at the National Consumer Law Center and the Massachusetts Appleseed Center for Law and Justice. Christin has an upcoming Note publication entitled Inclusion is Necessary to Protect the Health and Safety of Transgender Student-Athletes: Are Recent Legal Challenges Enough to Move the Goalpost? Christin may be reached at clal@su.suffolk.edu.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.