Proposed rule on determining gender could spell trouble for trans athletes and UIL; Olympics adopts progressive policy
JAMES RUSSELL | Staff Writer
Last October, the 32-member legislative council of the University Interscholastic League, the statewide body overseeing high school sports and other extracurricular activities, voted to send to member schools a rule declaring that a student’s gender would be determined by the gender marker on their birth certificate or other forms of identification.
When Rafael McDonnell, communications and advocacy manager for Resource Center, heard about the rule change, he immediately e-mailed Charles Breithaupt, UIL’s executive director.
He told Breithaupt the proposed rule violates a 2014 determination by the Department of Education’s Office of Civil Rights that under Title IX, the federal law prohibiting sex-based discrimination in any federally funded program, discrimination on the basis of gender identity is a form of sex discrimination.
McDonnell also noticed another problem: the rule changes did not add sexual orientation or gender identity to UIL’s nondiscrimination policy.
“By omitting these classes, UIL is further putting itself on shaky ground concerning Title IX, exposing the league to potential investigation, litigation and besmirching the good name and reputation of UIL in Texas and beyond,” McDonnell warned Breithaupt.
McDonnell even offered to arrange a meeting to discuss the changes.
But in a Nov. 5 response, Breithaupt defended the proposed policy. And he declined to meet with McDonnell.
“The UIL appreciates your concerns but respectfully disagrees that the UIL has made a ‘grave error.’ The UIL makes every effort, in both rule and practice, to provide fair and equitable competition in compliance with state and federal law. While I appreciate your desire to discuss this matter further, you clearly do not agree with the UIL’s passage of this proposal,” Breithaupt wrote.
Graeme Reid, director of the LGBT Rights Program for Human Rights Watch, an international human rights advocacy group, also wrote Breithaupt with concerns.
In his Nov. 4 letter, Reid warned that ratifying the law would impose a “stricter standard” than other collegiate groups, including the National Collegiate Athletics Association and the International Olympic Committee.
On Nov. 2, just two days before Reid sent his letter, the Education Department ruled a Palestine, Ill. school district violated Title IX for refusing to allow a transgender girl on a girls’ sports team to use the girls’ locker room. If the district did not remedy the situation in 30 days, the Education Department warned, it would risk losing some or all of its Title IX funding.
Reid warned Breithaupt that passage of the proposed UIL rule could result in similar consequences for Texas school districts. “We urge the UIL to revisit the policy to ensure that every student’s gender identity is respected,” Reid added.
Ryan Thoreson, a fellow in Human Rights Watch’s LGBT Rights Program, said the organization has yet to receive a response from Breithaupt or any other UIL official.
Transgender student athletes are allowed to participate in sports in 15 different states. But the fight to acknowledge or affirm the rights of trans athletes is not confined to Texas.
The South Dakota House of Representatives passed a bill Jan. 27 that would prevent transgender students in public schools from using facilities consistent with their gender identity.
In Virginia, the fight’s now playing out in court.
On Jan. 27, the American Civil Liberties Union appeared before a federal appeals court arguing a Gloucester, Va. County School Board policy segregating transgender students from their peers by requiring them to use separate restroom facilities violates Title IX.
The lawyers representing Gavin Grimm, a transgender male, said the policy violates federal non-discrimination laws and the 14th Amendment to the U.S. Constitution. Last September, the district court ruled against Gavin and dismissed his Title IX claim, despite a brief filed by the U.S. Department of Justice stating that, “there is public interest in ensuring that transgender students have the opportunity to learn in an environment free of sex discrimination.”
The district court ruling kept the policy in place and prevented Gavin from starting his junior year with access to the boys’ restroom, even though he has been living as a boy and taking hormone therapy.
The ACLU filed its appeal with the 4th Circuit last October.
“Ever since this battle with the school board began more than a year ago, I’ve been forced to confront ridicule and public insult from people who refuse to see me as a human, male student worthy of respect and equal treatment,” Grimm said. “But in spite of the humiliation I feel every time I’m forced to use the bathroom, I will continue to stand up for myself and other transgender students who shouldn’t be treated differently simply because of who they are.”
This is the first time that a federal court of appeals will consider the issue.
Different in the Olympics
Not every entity is restricting the rights of transgender athletes.
Just this month, on Sunday, Jan. 24, medical officials with the International Olympic Committee recommended transgender athletes be allowed to compete without gender reassignment surgery.
The committee last looked at the issue in 2003.
According to the new recommendations, female-to-male athletes will be able to participate in men’s competitions “without restriction.” Male-to-female athletes, however, will need to prove their testosterone levels have been below a certain level for the past year to be allowed to compete.
Societal changes and scientific research contributed to the changes, according to an IOC document.
“It is necessary to ensure insofar as possible that trans athletes are not excluded from the opportunity to participate in sporting competition. The overriding sporting objective is and remains the guarantee of fair competition,” the document reads.
“To require surgical anatomical changes as a pre-condition to participation is not necessary to preserve fair competition and may be inconsistent with developing legislation and notions of human rights,” it noted.
The IOC’s recommendations closely follow Transgender Law and Policy Institute guidelines for policies related to transgender youth athletes.
The guidelines note scientific data shows little to no difference in hormonal levels between the sexes.
“Gender segregation in children’s sports is purely social. It is not based on any significant physiological differences. From a medical and physiological perspective, there is nothing about being transgender that gives any particular child a physical advantage over others,” according to institute’s guidelines.
Meanwhile back in Texas
According to Texas UIL spokeswoman Kate Hector, if the council does not pass a rule then the rule instead goes onto a ballot referendum.
While unable to speak to the specific rule change regarding trans student athletes, sometimes the council wants to get the feel of a majority of school district superintendents, she said.
This year, there are 11 different rules on the ballot. That’s because a committee appointed to review the association’s rules during the summer found that many of them needed clarification.
“The only other step is for the Texas Education Commissioner to approve its placement on the ballot,” Hector said.
Former commissioner Michael Williams, who stepped down Jan. 1, approved placement on the ballot referendum for the proposed rule regarding trans students.
Gov Greg Abbott appointed former Dallas school board trustee Mike Morath to replace him.
A superintendent gets one vote for every high school in his or her district. Ballots have been sent to member school districts and are due at the beginning of February.
The final decision comes down to superintendents’ vote.
If the proposed rule passes, McDonnell said, UIL would likely face lawsuits from LGBT advocacy groups.
“If UIL wants to see a lawsuit, [they will],” he predicted.
This article appeared in the Dallas Voice print edition January 29, 2016.