Thursday, September 9, 2010
Erin Buzuvis (Western New England College School of Law) has posted Transgender Student-Athletes and Sex-Segregated Sport: Developing Policies of Inclusion for Intercollegiate and Interscholastic Athletics on SSRN. Here is the abstract:
Educators have long recognized the physical, psychological, social, and educational benefits that sport provides to students. Yet today, the barriers to athletic participation that exclude the increasingly visible population of transgender students are largely ignored. With a few notable exceptions, most governing bodies of scholastic and collegiate sports have yet to meaningfully consider how to incorporate transgender students into the existing athletic structure, which for the most part divides male and female athletes into separate programs. Many athletes and sport organizers assume that transgender athletes have an unfair advantage when they compete in sports consistent with their gender identity, whether due to residual, natural physical traits associated with their natal sex (in the case of male-born, female-identified athletes), or with the hormone therapy transition (in the case of female-born, male-identified athletes). At the same time, transgender students may be excluded, discouraged, or simply feel uncomfortable participating in athletics programs that match the sex of their birth but which are inconsistent with their gender identity and gender expression. As a result, for students whose gender identity is inconsistent with their natal sex, the entire sex-segregated world of athletics may be formally or effectively off limits.
A few associations of educational institutions have responded to this problem by adopting policies governing transgender athlete participation. After describing, contrasting, and evaluating these policies, this Article concludes that the best policies are those that, as a general rule, allow athletes to participate in sex-segregated sport in a manner consistent with their gender identity rather than their natal sex. In support of this conclusion, this paper will show that neither law nor science gives clear, dispositive guidance to policymakers seeking to balance the right of transgender athletes to participate with the perceived fairness concerns related to their cross-sex participation. Thus, educational considerations should play a primary role in creating participation policies. These considerations include the physical, academic, and socio-emotional benefits to individual athletes as well as the value that diversity brings to teams, schools, and communities. To best serve these goals, which educators claim as the basis for educationally-supported athletics in the first place, policies governing secondary school and college athletics should allow athletes to participate in a manner consistent with their genuine gender identity. Any exceptions or limitations to this default rule must be made with educational values in mind, and must be narrowly tailored to demonstrable, concrete concerns about fairness.