Transgender Student-Athletes

Jessica McNallyEducation LawMay 3, 2012

Introduction Key definitions Case Study Current state of the law Impact on collegiate athletic departments Current strategies Additional Issues Questions

Overview

What does the termTRANSGENDER

mean?

a person whose internal/psychological gender identity is different from their gender assigned at birth

◦ Female-to-Male (FTM) transgender: person who is born in a female body, but identifies as a male.

◦ Male-to-Female (MTF) transgender: person who is born in a male body, but identifies as a female.

Transgender

Birth/Assigned Sex- assigned at birth based on anatomical, physiological, and chromosomal characteristics.

Gender Identity- person’s internal sense of being a man or woman.

Gender Expression- socially constructed sets of behaviors and appearances associated with being male (masculine) or a female (feminine).

Transsexual- refers to someone who transitions from one gender to another (includes MTF and FTM)

Key Definitions

Transitioned- descriptor preferred by some people who have completed their gender transition (hormone therapy, counseling, and surgery)

Gender Non-Conforming- people who are perceived to have qualities that do not conform to traditional social expectations.

Sexual Orientation- emotional or sexual attraction to others based on the gender of that other person.

More Definitions

International Olympic Committee (IOC) National Collegiate Athletic Association

(NCAA) Transgender Student-Athletes (TSA) United States Tennis Association

(USTA)

Key Acronyms

Case Study: Renee Richards v. United States Tennis Association 93 Misc. 2d 713; 400 N.Y.S.2d 267(8/16/1977)

USTA was in violation of the Human Rights Law in the state of NY

Richards participated in the US Women’s Open without submitting to a sex verification test.

Looked to medical professionals for expertise on gender verification criteria◦ Endocrinologist, psychologist, gynecologist

Renee Richards 1977

What the court found…

No federal legislation explicitly prohibits discrimination based on “gender identity/expression”

Interpretation of the law ◦ Discrimination, equal protection, and human

rights◦ Some states have specified transgender people in

their anti-discrimination laws

Current State of the Law

The Employment Non-Discrimination Act (ENDA)◦ Bill introduced in 2009 to U.S. Congress◦ Prohibits public and private employers from using

sexual orientation or gender identity as the basis for employment decisions

Title IX of the Education Amendments 1972◦ Successfully used to address discrimination in schools

based on gender stereotypes Equal Protection Clause of 14th Amendment

◦ Several successful cases involving allegation of discrimination against LGBT students.

Federal Protection

Non-Discrimination Laws◦ 13 states enacted laws prohibiting discrimination

based on sexual orientation or gender identity/expression

◦ 8 states prohibit discrimination based on sexual orientation

◦ Additional states have protected transgender people under disability and medical discrimination laws

Student Rights Laws◦ 12 states protect student from discrimination based

on sexual orientation OR gender identity◦ 4 states specifically protect based on sexual identity

State Protection

So what does this mean for Collegiate Athletics?

What responsibility do Educational Institutions have?◦ Athletic departments are responsible to enhance educational, social,

physical, emotional and mental aspects of all students-athletes through competition

What criteria is appropriate in determining the gender of a student-athlete?◦ Physical, psychological, hormonal components

How can fair competition be ensured?◦ Gender advantages, performance enhancing drugs (hormone

therapy) How can Institutions avoid litigation?

◦ Education, pro-active policy development Where should institutions look for guidance on this

issue?◦ NCAA, IOC, Medical and legal expertise, case law

Areas to consider…

National Collegiate Athletics Association◦ Governing body for over 1,200 educational

institutions◦ Institutions are comprised of over 400,000

student-athletes◦ Oversees 89 Championships in 23 sports

NCAA

2003: a work group was established to begin to

formulate a position statement and guidance for membership institutions

2007-2009: an information packet with current NCAA Position and resources is provided to member inquiries

2010- NCAA had received 30 distinct inquiries from membership institutions asking for assistance with TSA participation no official policy had been created

How the NCAA Responded

Institutions were allowed to make participation decisions on their own

Rules do not prohibit TSA participation Gender classification is based on state ID Championship access rules require males on

female teams to declare “mixed” team status and render them ineligible for women’s NCAA championships

Use of medications are subject to NCAA banned drugs policy and review committees

NCAA Position Statement

Hormone therapy may include testosterone supplementing for FTMs

Testosterone is an NCAA banned substance George Washington University

◦ Kye Allums 2010- 1st D1 Basketball player to come out publicly as transgender Media attention raised social awareness GW has worked with NCAA and other professionals to

determine eligibility Kye has decided not to receive hormone therapy or surgery

until after graduation in 2012

Challenges for Educational Institutions

2011- Official Policy on TSA participation states:“a transgender student-athlete may participate in

sex-segregated sports activities so long as the athlete’s use of hormone therapy is consistent with the NCAA policies and current medical standards.”

FTM- must have medical exception for testosterone and may participate on male team (no longer eligible for female team)

MTF- must be on testosterone suppressant therapy for 1 calendar year and may participate on female team. Regular evaluation of ongoing therapy documentation required

NCAA Institutes Formal Policy

How Universities are Responding…

Educate yourself◦ Use available resources/collaborate with others

Adopt an effective and fair policy◦ Be aware of governing bodies policies◦ Educate coaches, student-athletes, community

Be aware of laws pertaining to non-discrimination◦ Include “gender identity/expression” in all official non-

discrimination documentation Outlined in report “On The Team” by Pat Griffin/Helen Carroll

Best Practices

Building Accommodations◦ Gender neutral bathrooms/locker rooms

Separate changing areas Travel/Hotel Accommodations

◦ Separate rooming◦ Separation vs. Inclusion (grey area)

Dress Code/Apparel Distribution◦ Traditionally male/female uniforms or formal attire◦ Equipment manager distribution of appropriate

clothing

Additional Thoughts

“Athletic Organizations who don’t take action to prepare for the possibility of transgender or transsexual student-athletes wanting to compete are going to put themselves in crisis mode…The smart ones are going to start investigating what they need to do and what the implications are, so when it does

happen, they will be in a position to make good policy.”

-Pat GriffinDirector of Women’s Sports

Organization

Over 400 collegiate institutions have policies prohibiting discrimination based on gender identity/expression◦ www.transgenderlaw.org/college/index.htm#policies

UPenn Healthcare Plan inclusion policy up to $50,000◦ http://thedp.com/index.php/article/2010/04/u._adds_trans

gender_insurance

Current University Policies

While an NCAA policy is useful in eligibility and participation, a lot of questions will remain as to the appropriate daily operations of administrations, coaches and fellow student-athletes with regards to TSA participation

Likely a case-by-case approach will be used to determine instances of discrimination suites

Policy development and advocacy for transgender people is in progress

Conclusion

It Takes a Team! ◦ Campaign initiative by WSF

On The Team: Equal Opportunity for Transgender Student Athletes ◦ Report generated from national think tank- by Pat Griffin and

Helen Carroll NCAA Position Statement 2007 Website:

◦ http://www.transgenderlaw.org/college/index.htm#policies Organizations:

◦ NCLR◦ WSF◦ NCAA◦ OIC

Resources

Questions