Transgender Student Athletes Fate Uncertain

A recent letter of enforcement by the U.S. Department of Education, Office for Civil Rights (OCR) places greater uncertainty on the fate of transgender student athletes. In May 2020, the OCR concluded that Connecticut Interscholastic Athletic Conference’s (CIAC) policy to permit student athletes to participate in sports based on their gender identity violated Title IX. The OCR determined that this practice resulted in a loss of athletic benefits and opportunity for female students and was inconsistent with Title IX’s mandate of equal opportunity for both sexes.

CIAC’s Revised Transgender Participation Policy permitted transgender student athletes to compete with other student athletes based on their gender identity instead of their gender assigned at birth. Multiple female athletes filed complaints with the OCR alleging they were unable to win championships and receive certain awards in Track due to CIAC’s policy. The OCR concluded that such policy denied female student athletes athletic benefits and opportunities, including advancing to the finals in events, higher level competitions, awards, medals, recognition, and the possibility of greater visibility to colleges and other benefits in violation of Title IX.

Soon after OCR’s decision, the United States Supreme Court issued a landmark decision – Bostock v. Clayton County, expanding LGBT rights. In Bostock, the Supreme Court concluded that terminating an employee on the basis of sexual orientation or gender identity violated Title VII of the Civil Rights Act of 1964. The underlying rationale in Bostock was that an employer may not treat an employee differently based on his or her sex – to preclude a man from engaging in an activity in which an employer would permit a woman to engage is discriminatory. By way of example, both men and women should be permitted to wear the same type of attire.

On August 31, 2020, OCR revised its letter of enforcement referencing the Bostock decision. OCR concluded that Bostock does not affect its CIAC decision because its regulations authorize single-sex teams and “where separating students based on sex is permissible – for example, with respect to sex-specific sports teams – such separation must be based on biological sex”.

What does this mean for the fate of our transgender student athletes? New York has similar policies and laws to Connecticut. The New York State Public High School Athletic Association’s transgender guidelines provide an opportunity for student athletes to participate in a manner consistent with a student’s gender identity. This is reinforced by the Dignity For All Students Act. There has not been a similar decision with respect to New York State athletics, however, we should be mindful of this decision and possible legal challenges in the future.

Should you have any questions about this topic, please feel free to contact Katherine Gavett at one of the numbers listed below.