In many states, decisions around who participates in school-based athletics fall initially to athletic directors and administrators. In some instances, there are governing boards for individual states that create regulations for student athlete participation, including participation based on sex assigned at birth and gender identity. Between 2020 and 2021, a record number of states introduced legislation regarding how transgender and nonbinary student athletes compete in school sports.
To understand the legal landscape for the current social and cultural pressure to legislate the bodies of transgender people, precedent is important. The case for transgender and nonbinary students’ rights gained national attention following a 2013 landmark ruling in Colorado that stated trans students could use the bathroom corresponding to their gender identity. The ruling sparked a national debate that led to the introduction of so-called “bathroom bills” in state legislatures across the country. In Charlotte, NC, the city voted to change the language governing bathroom usage in an effort to be inclusive of the transgender community. As a response, the state of North Carolina passed HB2, the first bathroom bill requiring the separation of public restrooms based on “biological sex.”
The response to the North Carolina decision was swift. The Justice Department sued to block its implementation, large businesses threatened to cancel planned expansions, and the National Collegiate Athletic Association (NCAA) voted to boycott the state. In May 2016, the Obama Administration released a “Dear Colleague” letter addressing joint recommendations from the Department of Education and the Department of Justice in applying Title IX protections to transgender and nonbinary students in public education spaces.
In February 2017, President Trump withdrew the Obama-era guidance. The “Dear Colleague” letter was not without controversy in the first place—it’s rare for two departments to work together and use such strong language to push public schools to adhere to their recommendations. In response to the 2016 “Dear Colleague” issuing, there were several cases filed, including G.G. v. Gloucester School Board, where the Supreme Court upheld the lower court ruling in June 2021. The withdrawal of the 2016 guidance left many school districts and school boards confused about their legal responsibilities in the treatment of both transgender and cisgender students.
Though there are many cases still in progress, the overall legal implication is that Title IX does protect transgender and nonbinary people from discrimination based on sex. In many states, school sports are governed by an Interscholastic Athletic Conference. In one case in Connecticut, the Connecticut Interscholastic Athletic Conference (CIAC) ruled that athletes can compete in gender-based athletics according to their gender identity, not based on their sex assigned at birth. Following a 2018 state championship, three cisgender female athletes sued the CIAC when they lost to two transgender female runners. Though the case was dismissed because the transgender athletes graduated and the complainants could not identify any other transgender athletes currently competing, the issue became a rallying cry for state legislatures to introduce bills restricting the participation of transgender athletes in school sports.
The inclusion of transgender athletes in competitive and championship sports is not a new issue. Both the NCAA and the Olympic governing boards have consulted with physicians, physiologists, and biologists to research and solidify their rulings on the treatment of transgender athletes. The NCAA Executive Committee first adopted policies governing the participation of trans athletes in 2010. Transgender athletes were first able to compete in the Olympics in 2004, and the rules initially were extremely restrictive. The Olympic committee reviewed requirements in 2015, after acknowledging that, in some countries, it would be impossible for athletes to receive gender-affirming health care and legal recognition.
Transgender athletes and their allies have made great headway in combating discriminatory policies, especially in athletics. In January 2021, President Joe Biden signed the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. President Biden references several pieces of legal precedent in the Order, including Title VII of the Civil Rights Act of 1964 and Bostock v. Clayton County—the 2020 Supreme Court Case that ruled protections against sex discrimination also protected members of the LGBTQ+ communities. There are several arguments against the executive order presented by authors and co-authors of state legislative bills attempting to restrict the participation of transgender athletes. Though Bostock v. Clayton was a groundbreaking case in the civil rights of transgender people, the Supreme Court did not extend its ruling to all elements of protected classes—the ruling impacts only employment discrimination.
Support in Schools
There are limitations to what principals and administrators in school districts can do to support transgender and nonbinary student athletes. Because public education is guided by state policy as well as school board policy, it can be difficult to balance best practices for working with transgender and nonbinary students with outside politics. The first critical point in recognizing and honoring the humanity and lived experience of transgender and nonbinary individuals is in language. Transgender people should never be referred to as “biological males” or “biological females.” If absolutely necessary to refer to a person’s sex (and it most often is not necessary), many transgender and nonbinary people reference their “sex assigned at birth,” sometimes using abbreviations like AMAB (assigned male at birth) or AFAB (assigned female at birth).
Since the rise of legislative action focused on preventing transgender athletes from competing, it is important to note that many lawmakers consistently refer to “biological males” as being a threat in female sports, or a threat to the efficacy of competition in female sports. It cannot be stressed enough that transgender women are not a threat to female sports, nor do they have a statistical advantage over cisgender women in athletics. Furthermore, studies conducted by nonprofit organizations such as the Human Rights Campaign, GLSEN, and The Trevor Project note that transgender people are more likely to consider and attempt suicide than their cisgender peers, and schools are one source of acceptance and affirmation that significantly decreases the likelihood of suicidal ideation. It is important that schools affirm the identities of all students throughout the K–12 experience—and that includes in athletic policies.
Even with following best practices, school leaders still work in communities that may not understand the experiences of transgender individuals and may have assumptions about how trans and nonbinary people should be treated in school and school athletics. To decrease the amount of inaccurate information spreading, one step that school leaders can take is to educate themselves and their teams about transgender and nonbinary people. Professional development opportunities for staff should regularly include cultural competency around LGBTQ+ issues, including issues that impact transgender and nonbinary students. School leaders also have the unique position of having access to school boards. Frequently, boards turn to administrators for recommendations of best practices in schools. It is critical that principals and administrators acknowledge and use their influence and power to protect marginalized students, especially when their recommendations can have life-affirming impact.
School-based policy development should start on campuses that serve students and should always keep the well-being of students in mind. Staying informed and being proactive in policy development prevents situations where marginalized people live in fear or struggle because they do not feel their school culture and climate are safe spaces. While a UCLA study estimates 1.4 million transgender adults live in the U.S., there remains a gap in research around how many children identify as transgender. The increased acceptance of the LGB community is evidence that representation and support can lead to individuals becoming confident in living authentic lives. Developing proactive policy protections for transgender individuals in K–12 education saves lives and signals to everyone in school communities that public education is a safe and equitable space.
Sherri Castillo is a doctoral student of education policy and planning at the University of Texas at Austin.