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Who Can Be a Woman in Sports?

Posted by Joseph D. Lento | Aug 09, 2020 | 0 Comments

At their core, sports are supposed to be fun, inclusive, and – perhaps most importantly – fair. But recent controversy surrounding transgender student athletes participating in competitive, school-based sporting events raises questions around science, laws, and policies for schools and states, as well as what's fair for other student athletes. 

Like gender itself, the issue of who should be allowed to participate in certain sports is complex. But even at first glance, recent stories about transgender women competing against biological women in high school sports highlight several concerns.

No one wants to discriminate against transgender individuals, as they face enough hardships in their day-to-day lives already – but at the same time, no one wants to give anyone an unfair advantage in competition, as participants' strength, endurance, and physical size are often deciding factors in who emerges victorious.

In situations where a correct answer is not immediately apparent, the law can serve as a guide. Digging a little deeper reveals that legal obligations exist to protect transgender student athletes.

The Complaint: A Violation of Title IX

Two transgender girls from Connecticut, Andraya Yearwood and Terry Miller, were recently caught in the middle of a legal controversy over their participation on their high school track team. The athletes drew national attention after choosing to compete in girls' track and field events instead of boys' and subsequently winning multiple races. This drew the ire of many parents, community members, and biologically female students, who insisted Yearwood and Miller had an unfair athletic advantage because they were born male.

The case attracted the attention of Alliance Defending Freedom (ADF), a legal organization that has argued many anti-LGBTQ positions over the years. Attorneys for ADF filed a federal lawsuit challenging the Connecticut Interscholastic Athletic Conference (CIAC) policy on transgender inclusion in sports that had allowed Yearwood and Miller to compete in girls' track.

In its complaint, ADF argued that the CIAC policy violated Title IX, a federal civil rights law enacted by Congress as part of the Education Amendments of 1972. The law prohibits sex discrimination for federally funded schools in areas including admissions, athletics, and employment. Title IX applies to all educational institutions that accept federal funds, including public K-12 schools, colleges, and universities.

On this basis, ADF wanted to bar the CIAC "from permitting males – individuals with an XY genotype – from participating in events that are designated for girls, women or females."

Background on Transgender Participation in Sports

Despite ADF's claims, most states allow transgender athletes to compete in sporting events that align with their gender identity. Eighteen states – including Connecticut – allow transgender high school athletes to compete in boys' or girls' sports based on the gender they identify with instead of the sex they were assigned at birth. These states don't require hormone replacement therapy or birth certificate amendments. Meanwhile, 10 states base the decision on the student's birth certificate, 16 states decide on a case-by-case basis, and six states have no policy at all.

Additionally, in 2014 President Obama's Justice and Education departments issued guidance outlining transgender inclusion in schools, interpreting Title IX to include transgender students among its protected groups. "The Departments treat a student's gender identity as the student's sex for purposes of Title IX and its implementing regulations," the letter said. "This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity."

This means treating a transgender girl or transgender boy differently based on the fact that their gender identity differs from the sex they were assigned at birth constitutes sex discrimination, which is prohibited under Title IX. This supports Yearwood and Miller's decision to compete on the girls' track team and bars the school from discriminating against them for doing so or treating them differently from other female athletes.

The Resolution: Discrimination is Illegal

This year on June 15, the Supreme Court offered further support to transgender athletes and other transgender individuals across the country. In a 6-3 majority opinion authored by Associate Supreme Court Justice Neil Gorsuch, the court held that Title VII of the 1964 Civil Rights Act protects LGBTQ people from employment discrimination, which had previously been murky legal territory.

According to Gorsuch, "an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

As a result of this Supreme Court decision, similar protections from sex discrimination for LGBTQ individuals will extend to other federal laws, including Title IX – especially since court precedent has determined that the same rules apply to both Title IX and Title VII, which protects employees against discrimination based on certain specified characteristics including race, color, national origin, sex, and religion.

This suggests that if a person is fired from a job because they are transgender, this constitutes sex discrimination. Legally establishing a connection between gender identity and sex discrimination in the workplace paves the way for the same principles to be applied in other situations, including high school sports.

Have You Experienced Sex Discrimination?

While Andraya Yearwood and Terry Miller were legally allowed to compete in girls' high school track events, that doesn't mean the discrimination they experienced was harmless. Miller does not know whether competitive track is part of her college plans, and Yearwood has indicated her running career is over.

Similarly, complex legal battles over gender and inclusion in sports rage on. Attorney Joseph D. Lento is experienced in Title IX claims and has successfully resolved hundreds of Title IX cases at schools across the country through negotiation and the Title IX hearing process. Call the Lento Law Firm a call at 888-535-3686 or contact us online.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Joseph D. Lento has more than a decade of experience passionately fighting for the futures of his clients. Mr. Lento represents students and others in disciplinary cases and other proceedings at universities and colleges across the United States while concurrently fighting in criminal courtrooms in Philadelphia, the Pennsylvania counties, and New Jersey. Mr. Lento has helped countless students, professors, and others in academia at more than a thousand universities and colleges across the United States. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide.

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