By Kelsey Krier*

March 2, 2016

During the 2015 ESPYs, Caitlin Jenner’s acceptance of the Arthur Ashe Courage Award marked an iconic moment for the history of sports in the United States.[1]  This was the first time in the history of the ESPYs that a transgender individual would receive the coveted award, and Jenner made sure to use the opportunity to discuss the pressing hardships transgender athletes face on a regular basis.[2]  Specifically, Jenner’s acceptance of the Arthur Ashe Courage Award and speech have helped gain awareness of transgender youth athletes, and the legal issue of whether or not they should be permitted to participate in school funded athletic programs – particularly, whether transgender youth should be able to play on teams according to their new gender identity.[3]

Title IX is Up to Bat

The construction of “fair, practical and legally sufficient policies” concerning transgender youth athletes in school sports is one of the most recent, and more difficult, civil rights issues educational institutions and sport governing bodies have had to handle.[4]  However, the Department of Education got the ball rolling by releasing an updated policy clarifying Title (IX) extends to all students, including transgender students.[5]  Although this policy update does not explicitly state transgender youth are permitted to play on the same team as the gender they identify with, it is the first step of potentially providing that right.[6]  For now, the policy update at least implies that this issue may fall under Title IX’s discrimination of transgender students.[7]

Playing the Game Under Case Law

Title IX is further explained in the case of Student v. Arcadia Unified School District.[8]  In this case, the National Center for Lesbian Rights (NCLR) represented a middle school student that recently transitioned from female to male.[9]  The incident that sparked the complaint was the school’s refusal to allow the student to bunk with male students during an overnight field trip.[10]  Rather than bunking with his male friends, the transgender student was forced to stay in a cabin alone with his father as his chaperone.[11]  The student felt isolated and hurt that the school was not accepting him as the male he had transitioned into, and his parents then filed a complaint with the Department of Education.[12]

The NCLR argued that the school was violating Title IX and was sexually discriminating against the student because he is transgender.[13]  In July of 2013, the Department of Education’s Office of Civil Rights and the Department of Justice resolved the issue with a Resolution Agreement.[14]

The Resolution Agreement Calling Foul on Arcadia Unified School District

Although the Arcadia Unified School District refused to admit any unlawful conduct, it did agree to implement the Resolution Agreement created by the U.S. Department of Education, Office for Civil Rights, and the U.S. Department of Justice, Civil Rights Division.[15]  The Resolution Agreement mandates activity from both individuals and the district as a whole.[16]

One of the first parameters of the Resolution Agreement is the use of an expert consultant.[17]  Specifically, the District will have one or more third-party consultants to support and assist the District in applying this Resolution Agreement.[18]  Next, the Resolution Agreement lays out specific measures the district must follow in regards to the transgender student, and for those in the future.[19]  The measures are as follows:

  1. Provide the Student access to sex-specific facilities designated for male students at school consistent with his gender identity; however, the Student may request access to private facilities based on privacy, safety, or other concerns;
  2. Provide the Student access to sex-specific facilities designated for male students at all District-sponsored activities, including overnight events and extracurricular activities on and off campus, consistent with his gender identity; however, the Student may request access to private facilities based on privacy, safety, or other concerns;
  3. Treat the Student the same as other male students in all respects in the education programs and activities offered by the District; and
  4. Ensure that any school records containing the Student’s birth name or reflecting the Student’s assigned sex, if any, are treated as confidential, personally identifiable information; are maintained separately from the Student’s records; and are not disclosed to any District employees, students, or others without the express written consent of the Student’s parents or, after the Student turns 18 or is emancipated, the Student.”[20]

The district must also revise all of its policies, procedures, regulations, and related documents and materials to include gender-based discrimination as a form of discrimination based on sex, and state that gender-based discrimination includes “discrimination based on a student’s gender identity, gender expression, gender transition, transgender status, or gender nonconformity.”[21]

To Play or To Bench: How Schools Across the Country Are Reacting

State associations, including Vermont, Maine, Virginia, Kansas, Washington, Colorado, and Illinois, have made policies regarding transgender student-athletes in school funded sports programs.[22]  These policies might serve as models for districts attempting to develop transgender strategies at the local level in the future.[23]  Along with looking to state associations’ policies for inspiration, schools can look to a recent report co-sponsored by NCLR and the Women’s Sports Foundation, entitled On the Team: Equal Opportunity for Transgender Student Athletes.[24]  This report provides guidance on how schools can create policies regarding transgender athlete inclusion that make everyone, or at least as many people as possible, comfortable and happy.[25]  It may be easier said than done to create policies around transgender athletes, a topic often seen as new and often controversial, but with the resources out there small steps are being made to make practical policies beneficial for all mindsets.  Perhaps, with more cases like Student v. Arcadia Unified School District starting to arise, the government will enact these resolution agreements in federal law.


* Staff Writer, Jeffrey S. Moorad Sports Law Journal; J.D. Candidate, May 2017, Villanova University Charles Widger School of Law.

[1] See Brian Stelter, Caitlyn Jenner to Receive ESPYs Award, CNN Money (June 1, 2008), http://money.cnn.com/2015/06/01/media/caitlyn-jenner-espys-award/index.html (discussing announcement of Jenner’s nomination for award and reasoning behind it).

[2] See Katy Steinmetz, The Case for Allowing Transgender Athletes in Youth Sports, Time (July 16, 2015), http://time.com/3961696/transgender-athletes-school-sports/ (quoting Jenner’s speech when she called for transgender youth to be “given the chance to play sports as who they really are”).  This article emphasizes the fact that Jenner was unable to be herself while she was an Olympic runner, because at the time she was still identifying as Bruce Jenner and would not have dared to come out as transgender, nor would she have been able to run as a female athlete. See id.

[3] See id. (explaining issues transgender youth face in regards to school funded/supported athletic programs, and how Jenner’s award has fueled fire of this controversy).

[4] See Lee Green, 2014 Sports Law Year-in-Review, Nat’l Federation of State High School Ass’ns (Jan. 8, 2015), https://www.nfhs.org/articles/2014-sports-law-year-in-review/ (introducing legal issue of transgender athletes in school funded sports).

[5] See id. (explaining that Department of Education released updated policy in April 2015, explicitly stating that the policy is meant to protect any and all students).

[6] See U.S. Dep’t of Ed., Questions and Answers on Title IX and Sexual Violence 5 (Apr. 29, 2014), available at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (clarifying that Title IX protects all students, despite sexual orientation or gender identify, but not explicitly mentioning discrimination in regards to school sports).

[7] See id.  The Policy update suggests that transgender youth may, in the future, be legally permitted to participate on the sports team of the gender the identify with, based on its clarification that transgender students are protected under Title IX from discrimination in schools.  See id.

[8] Arcadia v. Unified Sch. Dist., OCR Case Number 09-12-1020, DOJ Case Number 169-12C-70 (2013) [hereinafter Arcadia Resolution Agreement], available at http://www.nclrights.org/wp-content/uploads/2013/09/Arcadia_Resolution_agreement_07.24.2013.pdf; see generally Case Summary & History: Student v. Arcadia Unified School District, Nat’l Center for Lesbian Rights, http://www.nclrights.org/cases-and-policy/cases-and-advocacy/student-v-arcadia-unified-school-district/ (last visited Mar. 1, 2016) (explaining background and outcome of case).

[9] See Case Summary & History: Student v. Arcadia Unified School District, supra note 8.

[10] See id.

[11] See id.

[12] See id.

[13] See id. (explaining relevance of case under Title IX).

[14] See id. (discussing Resolution Agreement made by Office of Civil Rights and Department of Justice).

[15] See Case Summaries, Arcadia Unified School District, U.S. Dep’t of Justice (updated Oct. 14, 2015), http://www.justice.gov/crt/case-summaries  (summarizing case and resolution agreement).

[16] See id.

[17] See Arcadia Resolution Agreement, supra note 8 (summarizing case and resolution agreement).

[18] See id.

[19] See id.

[20] Id. at 3.

[21] Id. at 4.

[22] See Green, supra note 4 (explaining which state associations have already created policies regrding transgender athletes).

[23] See id. (stating that existing policies “might serve as models for districts attempting to develop transgender strategies at the local level”).

[24] Pat Griffin & Helen J. Carroll, On the Team: Equal Opportunity for Transgender Student Athletes, Nat’l Center for Lesbian Rights, Oct. 4 2010, available at http://www.nclrights.org/wp-content/uploads/2013/07/TransgenderStudentAthleteReport.pdf; see also Green, supra note 4 (discussing report).

[25] See generally Griffin & Carroll, supra note 24 (providing options and guidance for schools trying to create transgender athlete policies).

 

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