Kids Sports News Network

Students Play Based on Gender Identity

Balian Buschbaum

Balian Buschbaum, former women’s pole vaulter, recently was on Dancing With the Stars.

The intersection between the law and school has always been a tumultuous road as students discovered that they have limited free speech and property rights at school. Figuring out what rights and privileges high school students have when it comes to freedoms and protections of the law has often required a decision from the Supreme Court.

As our nation faces tough issues at all ages, the development of new law regarding high school students continues to take shape.

California enacted Bill 1266 on January 1, 2014 prohibiting discrimination based upon gender. While the law details various provisions to prevent gender preference or gender discrimination, the monumental provision of the bill allows transgender and gender nonconforming students to participate in school sports and competitions with access to school facilities according to their gender identity.  Although a handful of states have enacted policies regarding athletic participation for transgender students, California’s bill is the first state legislation memorializing these policies.

The decision to participate on an athletic team or competition must be left solely to the individual student. The school must accept the student’s gender identity as fact and accommodate them accordingly. There are no requirements for hormone therapy or gender reassignment surgery for a student to qualify for protection under the law as in college.

The law builds upon nondiscriminatory policies to provide transgender students with the same opportunity to succeed as other students. Districts and schools should create a climate for transgender students to feel safe, supported, and included in all school programs and activities.

As case law continues to develop in this area, it’s clear that an individual’s gender identity is incredibly important and should be protected from discrimination. Courts have determined that under the First Amendment an individual has the right to express one’s own gender identity. Often this is expressed through the clothing an individual decides to wear.

Title IX, which prohibits any type of discrimination on the basis of sex in education programs, extends that prohibition to the discrimination of transgender individuals because it is also considered sex discrimination. The U.S. Department of Education has stated that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity and failure to conform to stereotypical notions of masculinity or femininity.”

If the laws and policies seem clear, why is the development of laws and policies for transgender and gender nonconforming individuals so slow?

In the realm of high school athletics the main points of dissention are:

  1. An unfair competitive advantage for transgender students
  2. The comfort factor of other students and parents if a transgender student were to participate according to their gender identity.

Although transgender men (female-to-male) participation in high school sports is often less controversial, there is some concern that transgender women (male-to-female) who compete on women’s teams will take away opportunities for women, or that transgender women will have a competitive advantage over other women competitors. Neither of these concerns should be given enough weight to deny a transgender student the opportunity to participate in high school sports. First, the decision to align with an internal sense of gender identity rather than one’s birth gender is not a decision taken lightly by an individual. One’s gender is a foundational and profound part of his or her personality and identifying with one gender is an authentic and real experience. Second, all individuals naturally display significant physical variation and assumptions regarding an individual’s skills and abilities in athletics are not necessarily accurate.

All students want to be understood. Educators must develop thoughtful and informed practices to provide opportunities for all students, including transgender students, to participate in sports. By doing so, they will recognize diversity, promote acceptance, and transform lives in meaningful and miraculous ways.

Part Two: There’s a Boy in the Girls’ Locker Room

Part Three: She’s the Man

 

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Author: Melanie Grant

Melanie Grant received her bachelor’s degree in sport management from the University of Michigan and her juris doctorate from Brigham Young University. She practices law in Chicago and tries to find time to participate in recreational sports as often as possible.