Starting next school year, if a transgender student wants to play a sport, the team he or she will be required to try out for may conflict with his or her gender identity thanks to a new rule.
Last October, the University Interscholastic League, which regulates Texas's high school athletics rules, asked hundreds of superintendents to vote on an amendment to its non-discrimination policy that would require gender to be determined by birth certificates. On Thursday, the results were released: The amendment passed 586 to 32. The Texas Education Agency already approved it last November, and so it will become official policy this August.
But to many LGBT advocates, this addition to the "non-discrimination" policy openly allows schools to discriminate based on gender identity, and it will end up barring transgender students from participating in sports at all, thus violating Title IX.
“This policy will effectively prevent many trans students from playing sports in the future because it will force them to negotiate their identity in a way they may not feel is comfortable,” said Chris Mosier, a transgender triathlete who provides consulting for people who write trans-inclusive student-athlete policies. “Texas is ending the athletic careers of young trans athletes before they really have a chance to start.”
As the first known transgender person to qualify for a U.S. National team, Mosier has become a mentor for transgender athletes across the country. He started TransAthlete.com, where he tracks policies affecting transgender athletes at various levels in every state. According to Mosier, 15 states have passed trans-inclusive policies for student athletes, outwardly prohibiting the type of discrimination Texas school districts have now outwardly enabled. The NCAA also has a trans-inclusive policy. So does the University of Texas specifically, which makes UIL's new rule all the more problematic: Given that UT created UIL, UIL is not allowed to draft any amendments that conflict with any of UT's policies.
UT has a non-discrimination policy that explicitly prohibits discrimination based on gender identity.
Kate Hector, a spokeswoman for UIL, would not provide details on the rationale behind why this amendment was necessary, except to say that schools were already doing this informally and that putting it in writing would make UIL “more transparent.” In response to whether officials were concerned that this would discriminate against some kids, thus violating Title IX, Hector said that the amendment was “well vetted” and voting members made a “well-informed decision.”
Meanwhile, Asaf Orr, a Trans Youth Project attorney with the National Center for Lesbian Rights, said that any policy that erects barriers keeping trans athletes off the field is often based on misconceptions. School officials may worry that a boy will want to try out for the girls' team so he can dominate, Orr said, or that a transgender girl will have far superior strength and ability if she's allowed to play with other cisgender girls.
“That just doesn't happen,” Orr said. “Rather, what we're finding is that transgender students who do compete fit right in with the size and skill of their peers. There's a lot of concern about competitive advantage, but it just doesn't pan out in reality.”
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Orr also pointed out that amending birth certificates to correctly reflect a transgender person's gender identity can be a complicated and expensive process. While many transgender people may undergo hormone therapy or gender reconstruction surgery, Orr said that's often not an option for high school kids, who also may have parents who don't accept their gender identity and refuse to help them. Even as cities like Austin and Dallas have passed non-discrimination ordinances protecting gender identity, that apparently won't matter in high school sports, Orr said, where schools are only piling on that lack of acceptance.
“When these institutions are saying, 'Hey, look, it's not appropriate to accept or affirm this child's gender identity,' it sends a message to students and parents that there's something wrong here," Orr said. "It can lead to bullying and harassment, and it can convince parents that maybe it's 'just a stage,' which can be quite harmful.”
Last fall, when LGBT advocates started voicing their concerns about the proposed birth-certificate amendment, the UIL executive director denied that it violated Title IX, writing in a letter, “The UIL makes every effort, in both rule and practice, to provide fair and equitable competition for Texas students in accordance with state and federal law.”
But according to Orr, school districts may have shot themselves in the foot on this one: The prospect of an excluded transgender student-athlete filing a Title IX lawsuit is very real. Fighting one, he said, would be a waste of money for a rule that only takes LGBT rights a step backward.