Transgender Student-Athletes

1. Transgender Student-Athletes Jessica McNally Education Law May 3, 2012

2. Overview • Introduction • Key definitions • Case Study • Current state of the law • Impact on collegiate athletic departments • Current strategies • Additional Issues • Questions

3. What does the termTRANSGENDER mean?

4. Transgender • a person whose internal/psychological gender identity is different from their gender assigned at birth • Female-to-Male (FTM) transgender: person who is born in a female body, but identifies as a male. • Male-to-Female (MTF) transgender: person who is born in a male body, but identifies as a female.

5. Key Definitions • Birth/Assigned Sex- assigned at birth based on anatomical, physiological, and chromosomal characteristics. • Gender Identity- person’s internal sense of being a man or woman. • Gender Expression- socially constructed sets of behaviors and appearances associated with being male (masculine) or a female (feminine). • Transsexual- refers to someone who transitions from one gender to another (includes MTF and FTM)

6. More Definitions • Transitioned- descriptor preferred by some people who have completed their gender transition (hormone therapy, counseling, and surgery) • Gender Non-Conforming- people who are perceived to have qualities that do not conform to traditional social expectations. • Sexual Orientation- emotional or sexual attraction to others based on the gender of that other person.

7. Key Acronyms • International Olympic Committee (IOC) • National Collegiate Athletic Association (NCAA) • Transgender Student-Athletes (TSA) • United States Tennis Association (USTA)

8. Case Study: Renee Richards v. United States Tennis Association 93 Misc. 2d 713; 400 N.Y.S.2d 267(8/16/1977)

9. What the court found… • USTA was in violation of the Human Rights Law in the state of NY • Richards participated in the US Women’s Open without submitting to a sex verification test. • Looked to medical professionals for expertise on gender verification criteria • Endocrinologist, psychologist, gynecologist Renee Richards 1977

10. Current State of the Law • No federal legislation explicitly prohibits discrimination based on “gender identity/expression” • Interpretation of the law • Discrimination, equal protection, and human rights • Some states have specified transgender people in their anti-discrimination laws

11. Federal Protection • The Employment Non-Discrimination Act (ENDA) • Bill introduced in 2009 to U.S. Congress • Prohibits public and private employers from using sexual orientation or gender identity as the basis for employment decisions • Title IX of the Education Amendments 1972 • Successfully used to address discrimination in schools based on gender stereotypes • Equal Protection Clause of 14th Amendment • Several successful cases involving allegation of discrimination against LGBT students.

12. State Protection • Non-Discrimination Laws • 13 states enacted laws prohibiting discrimination based on sexual orientation or gender identity/expression • 8 states prohibit discrimination based on sexual orientation • Additional states have protected transgender people under disability and medical discrimination laws • Student Rights Laws • 12 states protect student from discrimination based on sexual orientation OR gender identity • 4 states specifically protect based on sexual identity

13. So what does this mean for Collegiate Athletics?

14. Areas to consider… • What responsibility do Educational Institutions have? • Athletic departments are responsible to enhance educational, social, physical, emotional and mental aspects of all students-athletes through competition • What criteria is appropriate in determining the gender of a student-athlete? • Physical, psychological, hormonal components • How can fair competition be ensured? • Gender advantages, performance enhancing drugs (hormone therapy) • How can Institutions avoid litigation? • Education, pro-active policy development • Where should institutions look for guidance on this issue? • NCAA, IOC, Medical and legal expertise, case law

15. NCAA • National Collegiate Athletics Association • Governing body for over 1,200 educational institutions • Institutions are comprised of over 400,000 student-athletes • Oversees 89 Championships in 23 sports

16. How the NCAA Responded • 2003: a work group was established to begin to formulate a position statement and guidance for membership institutions • 2007-2009: an information packet with current NCAA Position and resources is provided to member inquiries • 2010- NCAA had received 30 distinct inquiries from membership institutions asking for assistance with TSA participation • no official policy had been created

17. NCAA Position Statement • Institutions were allowed to make participation decisions on their own • Rules do not prohibit TSA participation • Gender classification is based on state ID • Championship access rules require males on female teams to declare “mixed” team status and render them ineligible for women’s NCAA championships • Use of medications are subject to NCAA banned drugs policy and review committees

18. Challenges for Educational Institutions • Hormone therapy may include testosterone supplementing for FTMs • Testosterone is an NCAA banned substance • George Washington University • KyeAllums • 2010- 1st D1 Basketball player to come out publicly as transgender • Media attention raised social awareness • GW has worked with NCAA and other professionals to determine eligibility • Kye has decided not to receive hormone therapy or surgery until after graduation in 2012

19. NCAA Institutes Formal Policy • 2011- Official Policy on TSA participation states: “a transgender student-athlete may participate in sex-segregated sports activities so long as the athlete’s use of hormone therapy is consistent with the NCAA policies and current medical standards.” • FTM- must have medical exception for testosterone and may participate on male team (no longer eligible for female team) • MTF- must be on testosterone suppressant therapy for 1 calendar year and may participate on female team. Regular evaluation of ongoing therapy documentation required

20. How Universities are Responding…

21. Best Practices • Educate yourself • Use available resources/collaborate with others • Adopt an effective and fair policy • Be aware of governing bodies policies • Educate coaches, student-athletes, community • Be aware of laws pertaining to non-discrimination • Include “gender identity/expression” in all official non- discrimination documentation Outlined in report “On The Team” by Pat Griffin/Helen Carroll

22. Additional Thoughts • Building Accommodations • Gender neutral bathrooms/locker rooms • Separate changing areas • Travel/Hotel Accommodations • Separate rooming • Separation vs. Inclusion (grey area) • Dress Code/Apparel Distribution • Traditionally male/female uniforms or formal attire • Equipment manager distribution of appropriate clothing

23. “Athletic Organizations who don’t take action to prepare for the possibility of transgender or transsexual student-athletes wanting to compete are going to put themselves in crisis mode…The smart ones are going to start investigating what they need to do and what the implications are, so when it does happen, they will be in a position to make good policy.” -Pat Griffin Director of Women’s Sports Organization

24. Current University Policies • Over 400 collegiate institutions have policies prohibiting discrimination based on gender identity/expression • www.transgenderlaw.org/college/index.htm#policies • UPenn Healthcare Plan inclusion policy up to $50,000 • http://thedp.com/index.php/article/2010/04/u._adds_transgender_insurance

25. Conclusion • While an NCAA policy is useful in eligibility and participation, a lot of questions will remain as to the appropriate daily operations of administrations, coaches and fellow student-athletes with regards to TSA participation • Likely a case-by-case approach will be used to determine instances of discrimination suites • Policy development and advocacy for transgender people is in progress

26. Resources • It Takes a Team! • Campaign initiative by WSF • On The Team: Equal Opportunity for Transgender Student Athletes • Report generated from national think tank- by Pat Griffin and Helen Carroll • NCAA Position Statement 2007 • Website: • http://www.transgenderlaw.org/college/index.htm#policies • Organizations: • NCLR • WSF • NCAA • OIC

27. Questions