Last week, the Alliance Defending Freedom (ADF), a Christian organization purporting to focus on religious liberty issues, filed a complaint with the Department of Education’s Office for Civil Rights (OCR) on behalf of three female high school athletes in Connecticut. The complaint alleges that the three Complainants—cisgender elite track athletes—are being discriminated against because the Connecticut Interscholastic Athletic Conference (CIAC) permits transgender female athletes to compete in girls’ sports. The ADF has a history of instituting suits on behalf of cisgender students, arguing that recognizing transgender students’ gender identities harms their cisgender peers.
Although courts around this country have made clear that being transgender does not make someone any less a girl in the eyes of the law, the ADF Complaint consistently and incorrectly refers to transgender female athletes as “boys” and argues that allowing these “boys” to compete against girls violates girls’ rights to equal athletic opportunities. The Complaint sets forth statistics about male and female athletes to show that in almost every sport male athletes would beat female athletes if they competed head to head. It then argues: “the CIAC permits males with all the hormonal and physiological advantages that come with male puberty and male levels of testosterone to enter and win in girls’ athletic competitions of all sorts, without any exceptions.”
Title IX is the federal law that prohibits discrimination on the basis of sex in any educational institution that receives federal funding. In recent years, federal courts have concluded that Title IX protects transgender students from discrimination based on their gender identity, and that allowing transgender students to participate in activities in accordance with their gender identities does not discriminate against cisgender students. For example, in Doe by and through Doe v. Boyertown Area School District, the Third Circuit Court of Appeals upheld the dismissal of a Title IX claim brought by cisgender students who wanted to prevent transgender students from using the bathrooms and locker rooms that corresponded with their gender identities. The Third Circuit held that the school’s policy treated all students equally, and therefore did not discriminate on the basis of sex.
In an increasing number of cases, courts have held that discrimination on the basis of transgender status is in and of itself sex discrimination in violation of federal civil rights laws, including Title IX. Many of these cases rely on the theory of “sex stereotyping,” which was developed in the Title VII employment discrimination context. In Price-Waterhouse v. Hopkins, the Supreme Court held that discriminating against a female employee for acting too masculine (in the eyes of her employer), constituted sex discrimination under Title VII. So, for example, in Whitaker By Whitaker v. Kenosha Unified School District No. 1 Board of Education, the Seventh Circuit Court of Appeals held that where a school denied a transgender boy access to the boys’ restroom, he had stated a claim under Title IX because “[b]y definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.” A judge in the District Court for the District of Oregon followed Whitaker by holding that “A court order directing District to require students to use only facilities that match their biological sex or to use gender-neutral alternative facilities would violate Title IX.” A judge in the District Court for the District of Connecticut held in 2016 that discrimination on the basis of transgender identity is discrimination on the basis of sex under Title VII. The Sixth and Eleventh Circuits have also held that discrimination against transgender people constitutes sex discrimination in violation of various federal civil rights laws.
There has been little development of the law in the specific area of transgender students competing in high school sports, but the growing body of law making clear that discrimination on the basis of gender identity is sex discrimination would indicate that students must be allowed to participate on teams that match their gender identity. In 2016 the federal government issued a guidance document where it made clear that under Title IX a student’s sex is the same as his or her gender identity, but stated that Title IX permits “age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.” In February 2017 the government withdrew that guidance document, and no published court case has ever determined whether such an exception should be read into Title IX as it applies to athletic teams. The federal government has not issued any new guidance addressing the rights of trans athletes under Title IX.
In the world of amateur and professional sports, trans athletes are subjected to additional requirements that their cisgender peers do not have to meet. The International Olympic Committee, for example, requires male to female (MTF) athletes to undergo hormone therapy until they can prove reduced testosterone levels for at least one year before competing. (The IOC places no requirements on female to male (FTM) athletes.) At the U.S. college level, the NCAA similarly allows FTM students to compete on men’s teams at any time, but MTF athletes cannot compete on women’s teams until they have completed a year of testosterone-suppressing treatment. MTF NCAA athletes are eligible for a two-semester extension of their eligibility time if they use two semesters to complete the testosterone treatment or to have surgical intervention.
Some people have argued that similar requirements should apply to middle and high-school athletes. Such an argument ignores the differences between athletes at the middle and high school levels, and athletes at the college or professional level. First, and most importantly, most minor children cannot legally undergo hormone therapy treatment without parental consent. A rule requiring such treatment before MTF student athletes can participate on the team that matches their gender identity would mean students whose parents do not consent to their treatment will be unable to participate in athletics. In addition, unlike in the NCAA, middle and high school student athletes are not generally able to delay the completion of their education and athletic careers to allow for extra time to undergo hormone therapy treatment. Under a rule like the NCAA’s, middle or high school students who come out as trans and immediately begin treatment would be excluded from participating in their sport for a full year. Students who are forced to sit out a year or more of athletic competition are likely to suffer diminished skills and missed recruitment opportunities, impacting their college educational options and future athletic careers.
The law on gender identity discrimination is established and courts are increasingly reaffirming that gender identity discrimination is sex discrimination that violates Title IX. To the extent courts determine there is some legal obligation to ensure fair play in athletic competitions at educational institutions they must recognize the differences between middle and high school athletes and adult athletes. While time off to undergo hormone therapy treatment may be a surmountable burden for transgender athletes who want to participate in college sports, a similar requirement may very well mark the end of a minor’s athletic participation or career. We will continue to watch to see what the Department of Education does with the Connecticut athletes’ Title IX claim, and whether any courts attempt to address the question of whether Title IX requires schools to address the fairness of athletic competitions and how that impacts trans athletes’ civil rights.
If you have been discriminated against because of your gender identity or gender expression, please contact us at (617) 742-6020.