The Legal Intelligencer - Is There a Place for Transgender Athletes Under Title IX?

 

Title IX of the Education Amendment of 1972 was passed by Congress for the purpose of barring sexual discrimination in education programs offered by institutions that receive federal funds. Approximately 16,500 local school districts, 7,000 post-secondary institutions, charter schools and for-profit institutions must comply with Title IX’s mandate.

At under 40 words, the entire text of Title IX reads:

“No person in the United States shall, on the basis of sex, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Although short in text, Title IX has a long history of defining male and female participation in sports. Since Title IX’s enactment, athletes have relied on this law to rid academic institutions of discriminatory practices in athletics. In recent years, transgender persons are also hopeful that Title IX will guarantee them increased access and opportunities in sports.

For persons identifying as girls, participation in high school sports has increased over 10 times since Title IX was signed into law. Participation of National Collegiate Athletic Association (NCAA) female athletes has also risen dramatically under Title IX. The NCAA is comprised of academic institutions that are members of the organization. Within the NCAA, there are three distinct divisions, Division, I, II, and III. Of all the NCAA divisions, Division I female athletes have greater opportunities for participation under Title IX. From 2011 to 2016, there were approximately 150,000 interscholastic sports opportunities for NCAA female athletes. According to data reported by the NCAA, 73,351 female athletes participated in sports in 1982. By 2016, the number of female athletes participating in NCAA competitions increased to 211,886. While, the NCAA is the largest and most prestigious organization governing college athletics, the enjoyment of sports usually begins well before the university level.

In neighborhoods and elementary schools across America, children as young as 6 years old are enrolled in such sports as soccer, lacrosse, basketball and baseball. Most parents who sign their children up for sports programs do so for the purpose of cultivating friendships, discipline and healthy habits. The vast majority of children, regardless of their athletic ability enjoy the early introduction to a sport where they meet children of similar age and spend time outdoors.

The Amateur Athletic Union (AAU), founded in 1888, defines its organizational goal as “Sports for All, Forever.” The AAU is the largest, nonprofit, volunteer, multisport event organization in the world with nearly 700,000 members and 41 sports programs in 55 U.S. districts. The AAU’s mission of offering amateur sports programs for all people to have physical, mental, and moral development is an objective shared by most parents. Parents of transgender children also share a vision of organized sports being a vehicle for their children to cultivate healthy physical, mental, and moral habits. However, religious conservatives, cultural prejudices, and fear-based activism threaten the inclusion of transgender athletes under Title IX.

The public discourse around Title IX’s application to transgender athletes has been shaped by the question of whether to allow athletes born with male biology and genitalia to compete as females. While this question becomes more complex and may call for the input of experts, physicians, or scientists at elite sporting levels such as World and Olympic competitions; thousands of amateur transgender children will be arbitrarily excluded from friendship, physical fitness, and community building opportunities should Title IX be interpreted to not allow them to participate in elementary and high school athletic programs.

The Alabama High School Athletic Association (AHSAA) states that participation in athletics should be determined by the gender indicated on the student athlete’s birth certificate. In April 2021, Alabama Gov. Kay Ivey signed HB391 into law which, in part, bars kindergarten to 12th-grade students, assigned male at birth, from participating in girl-segregated sports under any circumstances. Other states have laws similar to the Alabama statute that prohibit young transgender children and their families from enjoying amateur sports.

It is estimated that in the United States, 60 million children aged 6 to 18 years old participate in organized sports. In 2016, a study by the Williams Institute at UCLA School of Law, found that 0.6% to 0.7% of U.S. adults identify as transgender. The total number of transgender adults accounts for a very small percentage of the U.S. population and it is reasonable to infer that of that amount an even smaller number of child athletes identify as transgender and compete in organized sports.

In spite of the small number of transgender child athletes in organized sports, opponents of transgender inclusion, such as the Independent Council on Women’s Sport (ICON), assert that these athletes are a threat to the Title IX wins secured for women and girls over the last 50 years. In July, ICON issued a “call to action” requesting that its supporters protest the inclusion of transgender athletes under Title IX. Part of ICON’s call to action provided scripted language that its supporters should cut and paste to online comment cards for dissemination to lawmakers. The call to action language included the option for individuals to claim that “…Women (natal females) deserve fair competition and safety in sports. The only way to provide fairness and safety is to protect the women’s sports category on the basis of sex. Women and girls of every age deserve this protection … [not] against biology that does not match their own, placing them in danger and at a disadvantage …” Additionally, ICON supporters opposed to the inclusion of transgender child athletes can send the pre-printed message that states, “… The new proposals to Title IX not only do not protect women, they exclude women. Women depend on sex-based protection to participate and women of faith, disability and various ages depend on it even more. Women of various faiths simply cannot be around males in undress, males in locker rooms or males in some physical activities …”

However, these opponents fail to appreciate the lifelong benefits the small number of young transgender athletes will reap from being included on recreational, elementary, or high school teams. In the United States, transgender persons are 4 times more likely to live in extreme poverty and tragically, attempt suicide at least once over the course of their lifetime.

Transgender children face sexual harassment, bullying, isolation and ridicule inside schools. For these children, the opportunity to form friendships outside of the classroom in a gym or sports field is important to their mental and physical health.

As a junior high school student athlete, Andraya Yearwood finished second in the 55-meter dash at the Connecticut state open indoor track championship. Yearwood expected to celebrate this win but instead had to defend her results because she is a transgender athlete. Yearwood argued that all athletes both cis and trans, have different abilities. Yearwood stated that, “One high jumper could be taller and have longer legs than another jumper …” Yearwood is an example of how Title IX should be interpreted to be inclusive and liberally construed to allow for the participation of all child athletes regardless of the gender assigned at birth.

On June 16, 2021, the U.S. Department of Education’s Office for Civil Rights issued a notice of interpretation outlining the federal government’s position on the treatment of transgender students under Title IX. The notice of interpretation prohibited discrimination based on sexual orientation and gender identity. The Department of Education’s interpretation was based on the 2020 U.S. Supreme Court decision in Bostock v. Clayton County, which found that it was impossible to discriminate against a person based on sexual orientation or gender identity without discriminating against that person based on sex. Then U.S. Secretary of Education Miguel Cardona announced that the Office for Civil Rights was proud “… to enforce Title IX to protect all students from all forms of sex discrimination …”

Our country’s history provides an instructive guide on how exclusion and fear-based segregation is harmful to children and our society as a whole. From 1865 to 1964, judges, educational experts, lawmakers, and “concerned” parents warned that the inclusion of Black students in America’s segregated schools would cause harm, chaos, and confusion if “… white and colored students were taught together …” Though the result of this crooked and flawed rationale was eventually overturned, its residual aftermath continues to plague our academic institutions and negatively impact Black and Brown students to this day.

The inclusion of transgender athletes under Title IX does not mean the displacement of girls and women in sports. The inclusion of transgender children on elementary and high school teams will not result in elite competitions being flooded by athletes, assigned male physiology at birth, pushing out female competitors. Lawmakers and opponents pressing to ensure that Title IX excludes transgender athletes are employing a similarly flawed argument used to validate America’s previously segregated school system, an argument that when calmly peeled back resembles pre-game jitters and unfounded fear.

Title IX should be construed and upheld to include all children regardless of gender assignment. The opportunity to participate in sports is imperative to the growth and development of thousands of children each year. The end game must be the inclusion of any child who wants to join a team, make friends, and build lasting memories playing a sport regardless of how they choose to identify themselves.

Reprinted with permission from the August 11, 2022 issue of The Legal Intelligencer. © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.