By Carl Gaul

Does Title IX guarantee transgender people the right to participate in athletics according to their gender identity? Can high schools and universities be held liable for barring a transgender woman from competing on a women’s team? Civil rights issues specific to transgender people are only just beginning to be addressed. Ambiguity as to what the word “sex” means for purposes of discrimination under Title IX leaves businesses and athletic organizations without clear answers.

In the realm of college athletics, the governing statute is Title IX which prohibits discrimination with the very specific language: “[n]o person in the United States shall, on the basis of sex, shall be excluded from participation. . .” (emphasis added).[1] Title IX prohibits discrimination based on sex, but does not prohibit discrimination based on gender, at least not expressly. Further, the term “sex” is not defined in the Education Amendments of 1972, of which Title IX was a piece.

Interpretation of the civil rights statutes to provide protections for transgender people is not without precedent. In Price Waterhouse v. Hopkins, [2] the Supreme Court interpreted Title VII of the Civil Rights Act of 1964 to protect transgender people from harassment related to their gender identity. [3] The plaintiff was denied a promotion in part because of failure to conform to sex stereotypes. [4] The Supreme Court ruled in part that such factors “must be irrelevant to employment decisions,” [5] thus extending language prohibiting discrimination based on sex to also prohibit discrimination based on failure to conform to sex stereotypes.

Further, under the Obama Administration, the Department of Education issued a “Dear Colleague Letter” in 2016 insisting that schools equate gender identity with sex for purposes of bathroom facilities.[6] Specifically, the Letter stated, “[Title IX] and its implementing regulations prohibit sex discrimination. . . . This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”[7] The validity of this interpretation has been the subject of disagreement among the courts: the Fourth Circuit having found that the interpretation is entitled to deference, while the North District of Texas has found the interpretation clearly erroneous. The Fourth Circuit addressed this question in G.G. v. Gloucester School Board,[8] ruling that gender discrimination was prohibited under Title IX in a case involving a transgender student using a bathroom in accord with gender identity, rather than sex.[9] The Fourth Circuit decided this case giving Auer deference the 2016 DOE Dear Colleague Letter.[10] The Northern District of Texas declined to follow the Fourth Circuits’ decision in G.G., ruling that “[d]eference was not owed to Department of Education’s interpretation of . . . [the] term ‘sex’ . . . where the plain meaning of the term as used in regulation when it was enacted referred to biological and anatomical differences between male and female students as determined at their birth.”[11]

For now, the Trump Administration’s more recent “Dear Colleague Letter” has made clear that Obama Era protections for transgender students will be rolled back.[12] There is no way of telling whether this question will be addressed definitively by the legislature or executive branch. However, the school board which lost on appeal in the Fourth Circuit’s G.G. v. Gloucester School Board decision has been granted certiorari by the Supreme Court.[13] The Court will decide whether the DOE’s interpretation of sex to include gender identity is clearly erroneous or entitled to deference. [14] The impact that this decision will have on transgender people participating in sports according to the gender they identify with cannot be overstated.

In the absence of clear answers from the government, sporting organizations have begun developing their own policies to address the situation. Many of these policies are rooted in scientific evidence examined to determine when and how transgender athletes can compete with athletes of their chosen gender without presenting an unfair advantage.[15] These policies also layout different requirements for transgender athletes depending on their original gender; female-to-male (FTM) athletes face far less requirements and regulatory burdens than male-to-female (MTF) athletes.

Three organizations with prominent policies on transgender participation in athletics are: (1) the International Olympic Committee (“IOC”);[16] (2) the National College Athletic Association (“NCAA”);[17] and (3) the Texas’ University Interscholastic League.[18] The IOC does not require athletes to participate in sex reassignment surgery and places different burdens on FTM and MTF athletes.[19] FTM athletes “are eligible to compete without restrictions” while MTF athletes must meet four conditions to be eligible for competition:

• The athlete must have publicly identified as female for at least four years
• Must demonstrate that their testosterone has been maintained below a maximum level for at least twelve months prior to competition
• Must maintain that below-maximum testosterone level throughout the competition period
• And are subject to testing to ensure testosterone levels are compliant.[20]

The NCAA has a similar policy with a lighter burden on MTF athletes.[21] MTF athletes may not compete on women’s teams until completing one year of testosterone suppression treatment. Again, FTM athletes are free to compete on men’s teams without restrictions.[22]

Texas’ University Interscholastic League requires that athletes compete only on teams reflecting their assigned birth gender.[23] Conflicting policies within the governing body have created an absurd situation exemplified by the controversial story of Mack Beggs, a transgender boy who competed, and took first place, in the women’s division at the Texas State Wrestling Tournament this year (2017) despite being two years into his transition.[24] Beggs wanted to compete in the male division, but was barred from doing so by the governing athletic body, University Interscholastic League.[25] The decision to require Beggs to compete in the female division was made despite the fact that he is taking testosterone supplements that would violate competition rules, but for the transition process as a “valid medical purpose.”[26] Requiring Beggs to compete in the female division while taking performance enhancing drugs, even if for a valid medical purpose, resulted in the very issue transgender participation policies are meant to prevent; unfair competitive advantages. Further, the parent of one of Beggs’ opponents filed a lawsuit in attempt to force the University Interscholastic League to move Beggs to the male division, claiming that allowing Beggs to wrestle competitively posed a threat of “imminent bodily harm” to other athletes.[27]

Similarly, mixed-martial-artist Fallon Fox is a transgender woman, MTF, who competes against biological women in full contact cage fights.[28] Many hold the position that Fox has an unfair advantage over biologically female competitors, having gone through puberty as a male.[29] The facts are murky in this area because the effect of gender transitions on athletic performance is contested with well-respected experts in the area on opposite sides of the debate.[30] These arguments, both for and against Fox’s participation in competition, apply to other similarly situated athletes, as well.

No matter the clarity provided by the Supreme Court when it answers the questions presented in G.G. v. Gloucester School Board, athletic organizations will still be left guessing. How to balance the interests of fair competition as determined by conflicting scientific data against Title IX and equal protection under the law is among the next tasks that the legal community will be tasked with answering.

 

[1] 20 U.S.C. § 1681(a).

[2] 490 U.S. 228.

[3] Id.

[4] Id.

[5] Id. at 240.

[6] Dear Colleague Letter on Transgender Students, May 13, 2016, available at https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf.

[7] Id. at *2.

[8] 822 F.3d 709 (4th Cir. 2016).

[9] Id. at 715.

[10] Id. at 719.

[11] Texas v. United States, 201 F.Supp.3d 810, 832 (N.D. Tex. 2016).

[12] Dear Colleague Letter, February 22, 2017, available at https://apps.washingtonpost.com/g/documents/national/departments-of-education-and-justice-roll-back-transgender-student-protections/2344/.

[13] Available at https://www.supremecourt.gov/orders/courtorders/102816zr_feag.pdf.

[14] Id.

[15] See e.g. NCAA Inclusion of Transgender Student-Athletes at 13 (citing Louis Gooren and Mathijs Bunck, Transexuals in competitive sports, 151 European Journal of Endocrinology 425 (2004)) available at https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf.

[16] IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism, available at https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf.

[17] NCAA Inclusion of Transgender Student-Athletes, available at https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf.

[18] John Wright, Texas Districts Pass UIL Restriction on Trans Athletes, The Texas Observer (Feb. 25, 2016), https://www.texasobserver.org/trans-student-athlete-uil-discrimination/.

[19] IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism, available at https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf.

[20] Id.

[21] NCAA Inclusion of Transgender Student-Athletes, available at https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf.

[22] Id.

[23] John Wright, Texas Districts Pass UIL Restriction on Trans Athletes, The Texas Observer (Feb. 25, 2016), https://www.texasobserver.org/trans-student-athlete-uil-discrimination/.

[24] Id.

[25] Id.

[26] Melissa Palmer, 17-Year-Old Transgender Boy Wrestler in Texas Is Forced to Compete as a Girl, Angering Opponents’ Parents, KTLA (Feb. 24, 2017), https://ktla.com/2017/02/24/transgender-high-school-wrestler-target-of-texas-lawsuit/.

[27] Pratik Khandelwal v. The University Interscholastic League, Cause No. 2017-000825-2 at 6 (Feb. 7, 2017), Tarrant County, Texas.

[28] Stephanie Haynes, Leading sex reassignment physicians weigh in on Fallon Fox, BloodyElbow (Mar. 8, 2013), https://www.bloodyelbow.com/2013/3/8/4075434/leading-sex-reassignment-physicians-weigh-in-on-fallon-fox.

[29] Stephanie Haynes, Dr. Benjamin not on board with transgender female, Fallon Fox fighting professionally, BloodyElbow (Mar. 9, 2013), https://www.bloodyelbow.com/2013/3/9/4080712/dr-benjamin-not-on-board-with-transgender-female-fallon-fox-fighting (interviewing Dr. Johnny Benjamin who believes the scientific reflects an unfair advantage for MTF athletes).

[30] See Id.; Haynes, supra Leading sex reassignment physicians weigh in on Fallon Fox.