June 10, 2016Client Alert

How Educational Institutions Should Plan for Transgender Student Participation in Athletics in Light of OCR’s Dear Colleague Letter

The Office for Civil Rights (OCR) recently issued a “Dear Colleague Letter” (DCL) regarding the protections that Title IX affords to transgender students who face discrimination. The DCL reiterated OCR’s previously declared position that the department treats transgender students’ gender identity as their sex for purposes of Title IX and its implementing regulations. In short, the DCL provides that transgender students should be treated the same as students of the gender with which they identify.

The DCL identified specific ways that transgender students at higher educational institutions might experience discrimination. Potential violations of Title IX referenced in the DCL include:

  • Restricting transgender students from using the restroom or locker room that corresponds with the student’s gender identity
  • Verbally or physically harassing transgender students
  • Referring to transgender students as the incorrect gender or utilization of incorrect pronouns to identify the student
  • Restricting transgender student access to single sex schools or classes
  • Restricting transgender student access to single sex housing in conjunction with academic institution attendance
  • Failure to take reasonable steps to protect privacy information related to a student’s transgender status

OCR’s identification of these examples as potential Title IX violations should come as no surprise to those who have been following the department’s position on this topic, though the DCL did tread new ground on the topic of athletic participation.

OCR’s desire to take a position on transgender student access to participate on single-sex sports teams has been a source of speculation. While OCR has consistently held that gender identity, as opposed to gender assigned at birth, should dictate the access that transgender students have to educational benefits and services, the National Collegiate Athletic Association (NCAA) has maintained a policy since 2011 that calls for transgender students to complete a number of tasks before they can be granted access to participate in the single-sex sport of their gender identity, including diagnosis of gender identity disorder and, in some instances, hormonal treatment.

OCR declared in the DCL that educational institutions are not prohibited from promulgating policies that condition or restrict transgender access to participate in single-sex sports of the transgender student’s identity when those policies are age-appropriate. In addition, OCR declared that policies restricting transgender student access to sports of the student’s gender identity are acceptable if they are not based on overly broad stereotypes or generalizations about transgender students, but rather on sound, current and research-based medical knowledge about the impact of the student’s participation on the competitive fairness or physical safety of the sport.

Three important takeaways for educational institution administrators are:

  1. OCR’s athletic access policy for transgender students is consistent with its policy on operating and sponsoring single-sex male and female teams. OCR’s policy that allows schools to operate all male and all female teams is founded on the premise that the participation of the opposite sex could jeopardize the competitive equity of the sport or subject participants to physical harm in the case of contact sports. OCR sticks to the same criteria here: competitive equity and safety.
  2. OCR’s position serves as an approval of the NCAA policy on transgender access to varsity sports at the intercollegiate level. The department explicitly states that the NCAA policy is age-appropriate and based on sound scientific research.
  3. While OCR’s stance on the NCAA’s policy is clear, OCR’s position is somewhat ambiguous for middle schools, high schools, junior colleges and universities that offer club and intramural sports. Administrators at schools who fall into these categories are now confronted with the difficult task of determining whether automatically allowing transgender access to their various sports programs is appropriate, given the OCR’s conditioned stance.

With respect to this third point, administrators of educational institutions who are working on policies to govern transgender student access to sports should consider, among other factors, whether a policy that conditions transgender student access to single-sex club or intramural sports at junior colleges and four year colleges violates Title IX.

Given that this scenario involves students who are the same age as NCAA athletes, it can be assumed that such a policy would be considered age-appropriate. In addition, in sports such as soccer, lacrosse and field hockey, the risk of injury could also be construed as similar to participation in the same sport at the varsity level. Intramural sports differ from NCAA varsity sports in that they are recreational and almost always open to all students. Considering the absence of the “competitive skill” criteria for participation, OCR is likely to conclude that transgender students should be granted automatic access to single-sex intramural sports of the student’s gender identity. While club sports are often taken more seriously than intramural sports, they are a competitive level below varsity sports, as evidenced by the lack of recruiting, professional coaching and athletic scholarships. College administrators should be wary of conditioning or limiting transgender student access to non-contact intramural and club sports, where the scientifically supported risk of injury is not as apparent.

While OCR has advanced its position regarding transgender student access to single-sex sports, there still is significant ambiguity to resolve, making proactive planning and careful implementation even more paramount in this rapidly-developing area.

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