Tuesday, February 28, 2017

How States Can Better Promote Fairness for Transgender Athletes by Jonathon Reynolds

Mack Beggs, 17, won the Texas state girls’ wrestling title on Saturday culminating in an undefeated season for the young man. Unfortunately, this was not the division Beggs wanted to compete in – a sentiment shared by his competitors and other members of the community. Beggs was born female, but according to the Star-Telegram, his parents recall Beggs identifying as male as early as age 3. After a long wait, Beggs was finally able to begin transitioning a little more than a year ago with the use of testosterone therapy. Naturally, the treatment has promoted substantial growth in muscle mass and physical strength.

There was overwhelming community support behind Beggs’s desire to wrestle in the boys’ division, but the University Interscholastic League, the state’s governing body for public school athletics, prohibits gender integrated athletics. The Dallas Morning News reports that in 2016, 95% of Texas Superintendents voted in favor of amending the UIL’s constitution to require student athletes compete as the gender identified on their birth certificate.

The expansion of sex-separated teams in public school wrestling has been a recent development. I was on a wrestling team in Tennessee from 2005-2008, and I had the opportunity to wrestle several females over that course of time.  My female opponents were never conclusively less capable than the male opponents. Importantly, these opponents were females both on their birth certificate and in identity. Mack Beggs is not. Beggs testosterone therapy and male identity create actual differences between him and his female competitors. Since we have allowed female wrestlers to compete with males as a matter of practice before sex-separated teams, why not allow them to compete now? 

 It’s likely the UIL policy was promulgated to protect female competitors from competitors labeled male on their birth certificate, but incidentally the policy has created a situation where female competitors are forced to wrestle a male. Beggs may not be male according to his birth certificate, but according to his strength, muscle mass, and undefeated season – many would concede that Beggs is male, thus creating the problem the UIL wanted to avoid.

Under the Obama administration’s policy guidance, Beggs likely could have filed an administrative complaint with the Office for Civil Rights, alleging discrimination under Title IX.  The Trump administration, however, recently reversed that policy position.  The Supreme Court will presumably pick sides later this year in its pending case, Grimm v. Glouchester County, which addresses transgender students’ access to bathrooms consistent with their gender.

But even if the Court sides with the new administration and concludes that sex discrimination only means biological sex or the sex indicated on one’s birth certificate, the UIL can still find a workable solution.  If the UIL’s real concern is male domination of the female wresting division, it could adopt a policy whereby females can compete in the male league, but still prohibit males from competing in the female league.

While this sex-based inequity would certainly present a prima facie case of discrimination, it would likely pass judicial scrutiny. In order to survive scrutiny, the state must show an important government interest for the discrimination and that the chosen means are substantially related.  The important interest would be an effort to redress past discrimination against females.  The means would be substantially related to this interest by maximizing opportunity for females. The minimal effect this policy change would have on males further increases the likelihood of surviving scrutiny.

On the other hand, the current justifications for prohibiting girls from competing on boy’s teams are marginal at best. Common arguments for sex-separated athletics focus on safety of the female competitor, but sex is not determinative of the risk you take in a sport—particularly in wrestling. When your competitors are determined by weight division, the organizational structure precludes a situation where a male’s natural difference in size imposes greater risk on his female opponent. Even if the average male within a given weight class is stronger than the average female, it is two individual students who take the mat, not students who represent the mean characteristics of their sex. A 6’3, 140 lbs., male with relatively little muscle mass may face off against a 5’7, 140 lbs. female who is all muscle. Or an overweight and weak 5’4, 170 lbs., male may face off against a lean 5’10, 170 lbs. female. I have seen these types of match-ups on the mat before, and they were no different than had two males of those characteristics competed.

This policy is not far from the preferred one that the National College Athletics Associate already uses. The NCAA policy requires students similarly situated to Beggs compete in the male league. Under NCAA policy, transgender female-to-male students who undergo testosterone treatment therapy like Beggs must compete in the men’s league. Conversely, male-to-female athletes cannot compete on a women’s team without at least one year of testosterone suppression therapy. For transgender students who do not receive hormone therapy, female-to-male students are allowed to compete on men’s or women’s teams while male-to-female students are barred from women’s teams. These policies appropriately accommodate transgender athletes while balancing the interest in safety of the competitors. Under the NCAA policy, a girl – not a boy - may have actually won the girls’ state title, and Mack Beggs could have won the boys’ tournament.

Jonathon Reynolds is a law student at the University of South Carolina.

http://lawprofessors.typepad.com/education_law/2017/02/how-states-can-better-promote-fairness-for-transgender-athletes-by-jonathon-reynolds.html

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