The Challenges Ahead for Transgender Athletes and Title IX Under Trump

As the Department of Education appears to consider new Title IX policies, transgender student athletes are among those with most at stake.

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Jul 28 2017, 2:02pm

Photo by Leslie Plaza Johnson/Icon Sportswire via Getty Images

The White House announcement on Wednesday that transgender people would be banned from serving in the military, and the news that the Department of Justice filed a brief in federal appeals court claiming that employment discrimination against trans people is completely legal under Title VII, were just the latest reminder that the Trump administration is conducting an all-out assault against transgender Americans. And for the past six months, transgender students have had to fend for themselves, with Donald Trump's first strike against trans rights throwing them into an uncertain legal limbo.

Under Barack Obama, the Departments of Justice and Education mandated that federally funded schools honor the gender identity of transgender students under Title IX, but they revoked that guidance just a few weeks after Trump took office. "This is an issue best solved at the state and local level," Secretary of Education Betsy DeVos said in a statement, and did not supply any replacement guidance at the time.

Now the Department of Education appears to be moving forward in formulating new policies on Title IX, including for trans students. Earlier this month, transgender athletic activist Athena del Rosario met with Secretary of Education Betsy DeVos and Candice Jackson, the acting assistant secretary for civil rights, in Washington, D.C. That same week, former Olympic gold medal winner Caitlyn Jenner appeared on The View, saying that she had also met with members of the Trump administration, including the Department of Education. While a lot of attention has been paid to settling Title IX bathroom facility policy for trans students, the DOE will also need to address the rights of transgender student athletes and ensure their fair access to sporting opportunities under the law. (VICE Sports' request for comment from the Department of Education was declined.)

After her meeting with del Rosario on July 13, DeVos responded to a reporter's question about the definition of "sex" in Title IX: "I think there's been a lack of clarity in this area and I think it's time for Congress to address this." A bill already has been introduced in the House, HR 2796, which would explicitly revoke any legal interpretation of federal civil rights law that would interpret gender identity to be protected against discrimination on the basis of sex.

According to Jennifer Levi, an attorney with GLBTQ Legal Advocates and Defenders (GLAD), the courts have already established that discrimination against trans kids is sex discrimination, with Gavin Grimm's suit against his district (Grimm v. Gloucester County School Board) and other cases forcing them to parse what constitutes "sex discrimination" under Title IX.

"The very definition of being transgender relates to a person's sex either because it turns on a person's assigned sex, lived sex, or gender transition," Levi said in an email to VICE Sports. "There is no way to understand a person being transgender without having some concept of their sex, sexual identity, or gender identity. Therefore, discrimination against a transgender person for being transgender is sex discrimination."

Few sports issues are as controversial as trans women's participation in women's athletics. There are two cultural assumptions in play: the first is that men are inherently stronger, faster, and more athletic than women; the second is that trans women are really men who pretend to be women, which ignores the lived experience and physical changes that come with transitioning. While it's true that cisgender (meaning not trans) men have a hormonal advantage over cis women, this advantage doesn't apply to trans women who are on hormone replacement therapy (HRT). Of all the issues that fall under Title IX regarding protections for trans students, sports presents a unique challenge to policymakers in terms of balancing the need for equal access with concerns over any unfair competitive advantage.

When it comes to setting DOE Title IX regulations, DeVos does not require approval or input from either the White House or her department, which could explain why the DOE is so willing to listen to trans advocates while the rest of the executive branch is actively discriminating against them. The issues facing trans kids, and by extension trans athletes, aren't going away anytime soon. It's important that all transgender students are treated fairly and equally under the law, no matter what state they reside in, and it's an encouraging sign that a department in the Trump administration is at least willing to discuss potential national policy with advocates.

Betsy DeVos
DeVos speaks with reporters about Title IX. Photo by Jasper Colt-USA TODAY NETWORK

Right now at the high school level, each individual state interscholastic athletic association has its own set of rules regarding transgender athletes. While each state is slightly different, they generally follow one of three models.

In the first, which exists in states like Texas, Indiana, and North Carolina, student athletes are required to compete in the sex categories according to what is listed on their birth certificates. In the second type of policy, called the "self declaration model", which 16 states follow, athletes are free to compete in the category of their gender identity as long as they are registered with the school as the sex of the category with which they wish to compete. Lastly, 20 states require some form of hormonal intervention for trans girls (students assigned male at birth who transition to female) to participate in girls' sports, while trans boys (students assigned female at birth transitioning to male) are allowed to play boys' sports without having to undergo medical treatment. This third model is also what the NCAA follows for college sports.

Trans athlete activists are decidedly split on which approach best protects the rights of students. One camp contends that trans girls should have medical intervention in order to compete, with no equivalent requirement for trans boys, so that there is a level playing field. The other explains that trans people are valid in their chosen genders regardless of medical transition status, and the fear is that introducing a medical test for sports may make it easier for schools to discriminate in other policies pertaining to trans students.

As a trans woman myself, I understand all too well what being forced to play on the boys' teams in high school can be like. But as an athlete, I can't help but consider the competitive imbalances potentially contained in both the birth certificate and open declaration models.

Relying on birth certificates to determine participation in sex-segregated sports ignores the effect of sex hormones on the human body, and therefore how hormone replacement therapy or puberty blockers for adolescents might affect athletic performance. Trans boys who are taking testosterone as part of their medical transition, like Texas wrestler Mack Beggs, will have the strength and build of an average teenage boy given enough time on the hormone. (The Texas University Interscholastic League, the governing body for the state's high school athletics, and a Texas state court both ruled that Beggs' testosterone treatments were not performance-enhancing because they have a legitimate medical use.) If those same trans boys are required to compete against girls, as Beggs was, it's not only a significant performance advantage—Beggs went 72-0 this past season, easily winning the Texas girls' state wrestling championship—but also a potential physical safety issue for their female opponents.

There are also legal considerations to the birth certificate approach. Most states still require genital reassignment surgery in order to change sex on a birth certificate, a procedure that in the U.S. is generally permitted only for those over the age of 18. Ohio, Idaho, and Tennessee do not allow sex to be changed on birth certificates at all. Classifying trans students according to their birth certificate sex would run afoul of the original intent of Title IX, which sought to guarantee equal access to educational opportunities across all genders.

Settling this balancing act between fair competition and equal access for transgender students under existing case law is the biggest challenge facing any DOE attempt to roll out new policies around school sports.

While the fairest approach might seem to be requiring a medical intervention for trans girls to compete, there is reason to believe it may not hold up under legal scrutiny. In Lusardi v Department of the Army, for example, the U.S. Equal Employment Opportunity Commission ruled that "An agency may not condition access to facilities—or to other terms, conditions, or privileges of employment—on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual's gender identity." In other words, government agencies cannot require a trans person to pass a medical test before they are treated according to their gender identity. The EEOC ruling was based on Title VII, which covers employment discrimination, but the same logic could potentially apply to Title IX.

"Title IX will not sanction some medical treatment litmus test for a transgender girl to play sports with all other girls. Nor should it," Levi said. But regardless of the law, when it comes to athletics, this can sometimes present competitive fairness issues.

In Connecticut, where students are allowed to play sports in accordance with their gender identity regardless of medical transition status, freshman transgender female sprinter Andraya Yearwood won the state championships in the girls' 100- and 200-meter sprints this past spring. According to media reports, the 14-year-old has yet to begin HRT or puberty blockers, something that could have contributed to an advantage over her cis female competitors this past year. Yearwood is gracious, explaining that she just wants to run, and would happily give back her medals to continue running with her teammates, but for many critics, she shouldn't have been allowed to compete in the first place.

With the expense of puberty blockers or other medical interventions, requiring them for trans sport participation would create a very real barrier to participation; blockers can be up to $1,200 per month, regular HRT is significantly cheaper. Additionally, all current transition-related medications are off label for use with transgender patients, and not all of them are consistently covered by insurance. Besides the cost, some trans people socially transition without hormonal intervention. It's clear there are legal access issues as well that come along with requiring a medical intervention simply to allow trans participation.

For all the arguments about hormone levels and competitive fairness, trans activists on this issue refer back to the original purpose of Title IX. The law was passed to ensure that everyone has equal access to educational opportunities, regardless of gender. That itself doesn't require a perfectly fair competitive environment, simply that the door of opportunity remains open to all.

"Participation in school-based sports is about supporting students in their development of strength, teamwork, collaboration, self-esteem, and beyond," Levi said. "Transgender boys and girls need to develop these skills alongside their non-transgender peers. They must be allowed to do so regardless of their individual medical needs relating to transition."

The ancient Greeks took a three-pronged approach to education: mind, body, and spirit. That philosophy has served as a foundation for organizations from the YMCA to the NCAA. Trans activists are simply asking for the same chance as everyone else has at all three.