Transgendered Student-Athletes
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Jessica McNally Education Law May 3, 2012
Introduction Key definitions Case Study Current state of the law Impact on collegiate athletic departments Current strategies Additional Issues Questions
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.
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)
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.
International Olympic Committee (IOC) National Collegiate Athletic Association (NCAA) Transgender Student-Athletes (TSA) United States Tennis Association (USTA)
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
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
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.
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
What responsibility do Educational Institutions have?
What criteria is appropriate in determining the gender of a student-athlete?
◦ Athletic departments are responsible to enhance educational, social, physical, emotional and mental aspects of all students-athletes through competition ◦ Physical, psychological, hormonal components
How can fair competition be ensured?
How can Institutions avoid litigation?
Where should institutions look for guidance on this issue?
◦ Gender advantages, performance enhancing drugs (hormone therapy) ◦ Education, pro-active policy development
◦ NCAA, IOC, Medical and legal expertise, case law
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
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
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
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
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
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 nondiscrimination
◦ Include “gender identity/expression” in all official nondiscrimination documentation Outlined in report “On The Team” by Pat Griffin/Helen Carroll
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
“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 Griffin Director 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_tran sgender_insurance
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
It Takes a Team!
On The Team: Equal Opportunity for Transgender Student Athletes
◦ Campaign initiative by WSF
◦ Report generated from national think tank- by Pat Griffin and Helen Carroll
NCAA Position Statement 2007 Website:
Organizations:
◦ http://www.transgenderlaw.org/college/index.htm#policies
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NCLR WSF NCAA OIC
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