Transgender with them. As of recently, transgender athletes

Transgender
Athletes in Sports: A Look at Policies Around the U.S.

Donnell
Ray

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Georgia
State University

 

Abstract

This paper will discuss transgender
athletes and the policies that are associated with them. As of recently,
transgender athletes and their livelihood has become a big debate recently
within the sports arena. The main debate is whether transgender athletes should
be allowed to play sports as their own classified gender or as the gender they
were assigned at birth. This paper will take a further look in to various
cases, sources, and policies that have been implemented throughout history.

More specifically, there will be discussion about the history of transgender
policy in sports, various leagues including high school, college and
professional, their policies, and how these policies have affected the sport.

 

Transgender Athletes in Sports:

A Further Look at Various Policies
Around the U.S.

Topic of Discussion

The topic of discussion that will be explained and analyzed
in this paper is the topic of transgender athletes. Before explaining what a
transgender athlete is, it is important to understand the two terms separately
before putting them together. A transgender person is defined as, “a person of
a gender not traditionally associated with their sex at birth. There are also
gender identities within transgender such as transgender man, transgender
woman, transgender male, transgender female, and transgender person” (Katz 219).

An athlete is a person who plays sports or is “proficient” in sports. So, as it
sounds, a transgender athlete is a person who is proficient in sport, but
identifies with the gender that is opposite to the sex they were born with.

Transgender people, in general, have long been a taboo topic of discussion as
well as transgender people in sports.

Recently, the topic has reached a peak in its controversy
due to the Lesbian, Gay, Bisexual, and Transgender (LGBT) community gaining
more and more rights and genders becoming more openly fluid. Regarding sports
law, transgender athletes have been the topic of numerous debates for years.

The debates, specifically, have centered around creating policies where
transgender athletes do not feel excluded or targeted when it comes down to
creating a level playing field. There are even more arguments that go into the
debates. For example, “Of particular concern is that transgender and intersex
athletes may have unfair physiological advantages over their cisgender opponents”
(Gleaves). The opposing side to that argument is, “As the National Collegiate
Athletic Association (NCAA) has stated, contrary to those stereotypes, ‘the
assumption that all male-bodied people are taller, stronger, and more highly
skilled in a sport than all female-bodied people is not accurate.'” (Katz 217).

While the debates around transgender athletes are ending, by discussing this
topic in depth and analyzing its history, despite its controversial nature,
this paper can shed some light on where policies are now and what direction
these policies are headed to in the future based on past and current policies.

Title IX

When thinking about policies regarding transgender
athletes, Title IX is the first topic of discussion. Title IX, a federal law
enforced within the United States, is a part of the Education Amendments of
1972 and is considered a byproduct of the Civil Rights Act of 1964 that ended
discrimination on sex, race, color, religion, age, national origin, and public
accommodation. Specifically, and as stated by the Department of Education,
Title IX is defined as, “No person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity receiving
Federal financial assistance” (Title IX and Sex Discrimination). What does this mean regarding transgender athletes? How
did the topic become so complicated? That is hard to determine. According to
this, Title IX applies to any program or activity that receives federal
funding, but because not all programs are funded by the federal government or
federally funded, this changes the dynamic of the conversation. Will transgender
athletes that go to private schools have to deal with the discrimination
because the school’s athletics do not receive federal funding? Another issue
comes down to one phrase and specifically, one word within the Department of
Education’s statement: “on the basis of sex”. The definitions of sex and gender
have created a unique issue in society, because sex is mentioned a lot as to
avoid saying gender. The next section, history, will further discuss sex versus
gender specifically and what these difference and terms mean for transgenders
and specifically, transgender athletes and policies affecting them.

History

            In 1968, International Olympic Committee (IOC) created a
policy of sex verification that focused specifically on women and the
prevention of male athletes competing and participating in women’s events.

Because they were unable to successfully medically test this verification, the
policy had to be abandoned in 1999. The inclusion of athletes born as women or
men and being able to participate in the opposite sex’s sports has been in
question for a while and prior to 2003, there was no sports policy in place to
directly address transgender athletes.

            While there was no policy that directly addressed
transgender athletes, many people point towards the Civil Rights Act of 1964
which makes it unconstitutional to discriminate anyone based on their race,
color, religion, sex or, national origin. People also look towards the 14th
Amendment of the United States, specifically, the Equal Protection Clause which
passed in 1868. In Reed v. Reed (1971), a case about a married couple seeking
to designate an administrator over their deceased son’s estate, the Supreme
Court ruled, for the first time, that the Equal Protection Clause of the
Fourteenth Amendment prohibits differential treatment against persons based on
their sex. Should this not apply to the treatment of transgenders and their
participation in sports?

While these two laws, the Civil Rights Act of 1964 and the
Equal Protection Clause of the Fourteenth Amendment, are looked towards to
justify allowing transgenders to compete in the sport with the gender of
choice, the laws specifically use the word “sex” and not “gender”. What’s the
difference? “Sex has been defined as “the distinction between male and female;
or the property or character by which an animal is male or female”, whereas
gender has been defined as ‘the difference between men and women based on
culturally and socially constructed mores, politics, and affairs.'” (Acklin
115). Craig v. Boren (1976) became the first case to result in statutory or
administrative sex classifications subject to “intermediate scrutiny” under the
Equal Protection Clause of the Fourteenth Amendment. Keeping this case in mind,
if a transgender athlete were to file a lawsuit or take a case to the Supreme
Court, their “sex” not their self-identified “gender” would be scrutinized and
the case would not be able to be applied to the Fourteenth Amendment’s Equal
Protection clause unless that transgender legally changes their gender. Because
transgenders experience discrimination based on the gender they choose to
identity as and not because of their born sex, it is difficult for them to
claim discrimination as they are not yet a protected class under the
constitution. To date, there has been no federal case that has addressed the
issues of transgenders or specifically, transgender athletes.

            The 2003 “Stockholm Consensus”, a sports consensus on sex
reassignment in sports, was put into place for the 2004 Olympic Games to be
held in Athens, Greece. Before transgender athletes could compete, however, the
IOC’s Medical Commission included three criteria that transgender athletes had
to meet in order to compete in the Olympics. The first criteria stated that the
transgender athletes must undergo hormone replacement therapy for a minimum of
two years. The second criteria, transgender athletes must be legally recognized
as the sex in which they wish to compete with. Finally, transgender athletes must
have sex reassignment surgery to compete with their desired genders.

            More recently, the greatest recognized organization dealing
with university sports, the National Collegiate Athletic Association (NCAA),
which has its’ headquarters placed in the United States, published a policy in
August of 2011 involving the inclusion of transgender athletes. Following this,
many states and school districts have sought to mirror and implement a similar
policy. Like the International Olympics Committee (IOC), however, it requires
transgender athletes undergo hormonal treatments “for a period of time” before
participating in the sport of their desires.

            Most recently, the Office of Civil Rights (OCR) within
Department of Education released a 52-page document in 2014 called “Questions
and Answers on Title IX and Sexual Violence”. As stated within this document:

“Title IX
protects all students at recipient institutions from sex discrimination,
including sexual violence. Any student can experience sexual violence: from
elementary to professional school students; male and female students; straight,
gay, lesbian, bisexual and transgender students; part-time and full-time students;
students with and without disabilities; and students of different races and
national origins”

This policy loosely interpreted that transgender students
(and athletes) were protected under Title IX. However, the talk changed once
again, because later that year, the OCR released provisions to the document
that was interpreted that transgender athletes were protected, but the
protections did not include intramural athletics. This concluded that
transgender students can participate in some school-based activities, but not
all (Michel 149). Because of this, the OCR has opened the topic of discussion
once again.

            As the struggle for allowing transgenders to compete in the
sports as their self-identified gender continues, for this struggle to turn
into a win for the transgender community, the United States Congress must amend
the Civil Rights Act of 1964 to include transgenders as a protected class.

Until that happens,” as a short-term supplementary solution, the U.S.

Department of Education should recommend Congress pass a bill that conditions
federal funding of state after-school competitive sports programs on the
complete inclusion of all students. That bill should clearly outline an
inclusive transgender participation policy, granting transgender students the
right to play interscholastic sports regardless of where they reside” (Acklin
137).

Cases

Richards vs. US. Tennis Association.

History. In 1977,
Renee Richards was a transgender athlete who transitioned from male to female.

She was an accomplished athlete, competing in the male division when she was a
male, and the female division as a female. Competing in numerous championships
as a woman even after the sex-change operation, Richards made it all the way to
finals of the women’s singles at the Mutual Benefit Life Open, however the US
Tennis Association (USTA) did not let her compete because she was born a male.

She further went on to state the USTA violated her rights by asking her to
complete a sex-chromosome test and preventing her from being ranked as a
women’s professional.

Decision. The Supreme
Court favored the plaintiff, Richards.

Importance. This case
was very important because it is regarded as on the of the first cases that
directly dealt with transgender athletes and their rights. By winning the case,
Richards set the precedent to where other transgender athletes should not have
to take a sex chromosome test to compete in the sport of their chosen identity.

However, as stated in the History section, it was not until after 2004 where
sex-change tests and other criteria was considered null and void.

Khandelwel vs. The University Interscholastic League

History. In 2015, an
athlete told the University Interscholastic League (IUL) that she was
transitioning from a female to male. She also gave the IUL the proper
documentation of her transition, most noticeably that she gave documents that
she was taking testosterone. Because of this, she asked the IUL for permission
to compete in the men’s division. The IUL denied her request and she was forced
to compete against other women throughout the 2015-16 seasons. She was also
denied for the 2016-17 season and now she could possibly get denied again.

Decision. The judge
for this case threw out the lawsuit. In other words, this case was dismissed,
meaning the policy that allowed for the minor to wrestle against girls while
born a male will stand.

Importance. This case
was very big because this was a major blow to the transgender athlete talk.

Because the case was dismissed, this gives other Leagues the free reign to not
allow other athletes to compete because of their change.

Worley v. Ontario Cycling Association

History. Canadian
cyclist Kristen Worley went through gender reassignment surgery in 2001 and she
tried to start competing again in the Olympics after her surgery. She applied
for a Therapeutic Use Exemption for testosterone, but her approval took 10
months instead of the normal few days or weeks. Without approval, her bodily
health suffered, and it prevented her from training. She argued that she was
being discriminated against because she was transgender, and she also argued
that the IOC did not want her case to be brought in a civil court.

Decision. The court
ruled in favor of Worley.

Importance. First, the
court allowed Worley’s case to be heard in a civil court. This was huge because
all previous cases were privately settled so the IOC, for example, could
continue to uphold their policies. The fact that this case was settled in a
civil court, so this forced the IOC to change their policies. This case was
also important because it set the precedent for other court cases regarding
transgender athletes to be settling within a civil court if the transgender
athlete’s basic human rights were compromised. If the issue in the court was
more directly related to human rights, not sport athlete rights, more
progressive policies could be enacted quicker than it would if the case was
decided arbitrarily.

Other Policies (High
School/Collegiate)

Collegiate

One of the largest governing bodies in the sports world,
the National Collegiate Athletic Association (NCAA) has various rules regarding
transgender athletes. Per the NCAA bylaws, this is their current policy:

“1. A trans
male (FTM) student-athlete who has received a medical exception for treatment
with testosterone for diagnosed Gender Identity Disorder or gender dysphoria
and/or Transsexualism, for purposes of NCAA competition may compete on a men’s
team, but is no longer eligible to compete on a women’s team without changing
that team status to a mixed team.

2. A trans
female (MTF) student-athlete being treated with testosterone suppression
medication for Gender Identity Disorder or gender dysphoria and/or
Transsexualism, for the purposes of NCAA competition may continue to compete on
a men’s team but may not compete on a women’s team without changing it to a
mixed team status until completing one calendar year of testosterone
suppression treatment.”

This policy states that female-to-male athletes can compete
in the gender of their choice if the choice is the male division, but if the
athlete wants to compete in the female division, the team must specifically be
listed under the mixed category (Buzuis 314). On the other hand, Male-to-female
athletes must compete in the male division until testosterone suppression
treatment is done for at least a calendar year. As talked about in the Worley
vs. Ontario Cycling Association, this can have harmful effects, so the amount
of suppression is very vital thus creating a thin line to where basic human
rights could be violated. This policy is progressive in a sense that athletes
are not required to have a sex-change operation or take any sex-chromosome
test.

High School

For high schools, there are not as many policies as those
at the collegiate and professional levels, however the policies have tended to
be more controversial. Ranked from liberal to most conservative, the following
states’ policies are listed below.

California. California
has been the only state to pass laws at the state level regarding transgender
athletes. They are free to compete with the gender that they classify as,
meaning that they are also free to use whichever restrooms/facilities (Brown 315).

            Connecticut. There are
some policies that Connecticut have put into place, but it has shown to not be
the most progressive like California. In their state, more specifically the
Connecticut Interscholastic Athletic Conference (CIAC), transgender athletes
have to show that their athletes do not have a significant advantage over other
athletes before they are allowed to participate (Brown 215). The school
district must verify that the athlete, based on school records and daily life
activities, is bona fide (genuine).

Georgia. On the other
extreme side of things, Georgia has one of the harshest policies regarding its
transgender athletes. In an article by Krista Brown, it states that “The GHSA
dictates that “a student’s gender is determined by the gender noted on
his/her certificate at birth.” The GHSA does not provide any other directives
concerning transgender student-athletes. However, GHSA Executive Director Ralph
Swearngin did state that there is an appeal process if someone’s gender
orientation is “not traditional.”

This goes to show that each state is not consistent with
the way that their policies regard transgender students, since the issue has
not been discussed on a national level. This proves that there is still much
more work to do to create a more progressive policy system on a state and even
a national level.

Conclusion

In his
book, The Power of Words, Rev. J. Martin said, “Words are free. It’s how
you use them that may cost you.” The rights of transgender athletes only come
down to one word: “sex.” The rights of transgender athletes only come down to
the omission of one word: “gender. “Though many may believe the two words are
interchangeable, they’re not. As stated previously, sex is biological while
gender is social. Transgender athletes who have not legally undergone a sex
change cannot claim part of their rights guaranteed to them by the Equal
Protection Clause of the Fourteenth Amendment or the Civil Rights Act of 1964,
because the law only acknowledges legal sex and not gender. The law only
acknowledges certain classes as a protected class under the law and being
transgender is not one of those classes. Transgender athletes should be able to
compete in the sport they identify with and in order for that to happen,
policies need to be adopted, amended, etc. More routes would include the
Fourteenth Amendment being amended by the states, a Supreme Court case being
ruled constitutional or unconstitutional and applied to the Fourteenth Amendment
or the United States Congress would need to pass a law that applies to the
Fourteenth Amendment the same way they passed the Civil Rights Act of 1964 and
applied it to the Fourteenth Amendment.

 “The Onus of
Inclusivity: Sport Policies and the Enforcement of the Women’s Category in
Sport.” authored by S. Teetzel offers an example of how such policies may be
targeted towards women who may not appear as feminine as women are expected to
appear or men who may not display a person who appears as manly as men are expected
to appear, by stating, ” By subjecting women athletes who look more muscular,
androgynous, or masculine than their competitors to sex verification procedures,
and requiring them to plead their cases to a panel of experts to continue
competing in the women’s category, … is also reminiscent of witch hunts …”.

The issue then becomes, how do you enforce these policies and how do you apply
it equally across the board and prevent the policy from being abused?

To conclude, Gleaves, J. and Lehrbach, T (2016) points out
in, “Beyond fairness: the ethics of inclusion for transgender and intersex
athletes,” that the importance of illustrating gendered stories and how sports
allow for transgender athletes to “narratively” develop their sense of
masculinity or femininity. As stated previously, Transgender athletes should be
able to compete in sports with their self-identified genders not only for
fairness reasons, but reasons of safety and progression in said transgender. If
they can’t compete with their identified gender, would their safety as an
identified woman in a males’ locker room or vice versa not pose an issue of
safety? Many questions need answers in order to allow for transgender athletes
to compete with their self-identified gender. Moving forward, policies to allow
this to happen have to be very specific with their wording, how it is to be
enforced and answer any questions about possible issues resulting from the
policy before the policy move is made.