The Chicago Daily Law Bulletin Published Timothy Liam EPSTEIN'S Article Entitled, "Policy allowing transgender athletes to compete challenged."

On May 15, the U.S. Department of Education Office of Civil Rights issued a letter of impending enforcement action in response to a complaint filed against the Connecticut Interscholastic Athletic Conference and six Connecticut school districts.

In the OCR complaint, three cisgender female high school student-athletes alleged that the CIAC’s policy permitting transgender athletes to compete in interscholastic competition based on their gender identity was discriminatory against cisgender female student-athletes.

Although the policy complies with Connecticut’s transgender anti-discriminatory statute, OCR ultimately held that the CIAC and the school districts were in violation of Title IX for implementing or enforcing the policy. Consequently, OCR plans to either suspend, terminate, or refuse to grant federal financial aid to the CIAC and the school districts or refer the cases to the U.S. Department of Justice.

OCR’s decision only applies to the CIAC and the named school districts. Nonetheless, OCR’s decision has created confusion for educational institutions nationwide. Specifically, federally funded educational institutions across the country may now feel compelled to adjust their policies to ensure they continue to receive federal financial assistance.

Title IX is a federal statute that prohibits discrimination on the basis of sex in federally funded educational programs or activities. 34 C.F.R. Sec. 106.1. The rationale behind Title IX is that if an educational institution allows or endorses sexual discrimination, the federal government condones such action and will demonstrate its opposition by suspending any support or assistance to that institution. The scope of Title IX is quite large, covering anything from athletics to housing. 34 C.F.R. Sec. 106.31-43.

For athletics, Title IX explicitly prohibits any person to be excluded from participation in, be denied benefits of, be treated different from another person or otherwise be discriminated against in any federally funded educational institution or program on the basis of sex. 34 C.F.R. Sec. 106.41(a).

In this case, the complainants contended that the policy denied cisgender female student-athletes from receiving athletic benefits and opportunities. To support their allegation, the cisgender female student-athletes claimed that no matter how hard they train, transgender female student-athletes will always have a physical advantage over them. One cisgender female student-athlete contended that this policy could lead to females being “completely eradicated from their own sport.” Thus, they argue that allowing student-athletes that are biologically male, but identify as females, to participate in female athletic competitions denies biological female student-athletes the ability to participate in post-season events and receive awards and scholarship opportunities.

On the other side, the CIAC and respective school districts argue that not only is the policy nondiscriminatory, but instead advances nondiscriminatory efforts. Specifically, the CIAC posits that not allowing students who identify as females to be recognized as females in interscholastic athletics deprives those students of meaningful opportunities to participate in interscholastic sports.

OCR ultimately determined whether discrimination based on gender identify is protected under Title IX. Consistent with the current administration’s position, OCR’s decision was that it does not. Accordingly, OCR held that unlike male student-athletes, the policy created an unfair playing field for females which consequently denied cisgender female-student athletes the benefits of athletic competition. To support its conclusion, OCR compared the transgender females’ athletic competition results to cisgender females’ results.

In addition to the confusion as to what protection transgender people are entitled to regarding discrimination in athletics, OCR’s decision places educational institutions in a difficult position.

Connecticut is one of several states that has enacted legislation prohibiting discrimination based on one’s gender identity. Conn. Gen. Stat. Sec. 46a-51. Therefore, CIAC’s implementation of the policy and the school districts’ enforcement was fully compliant with state law.

However, OCR has made it clear that such a policy likely violates Title IX. Accordingly, for states that have legislation prohibiting gender identity discrimination, federally funded educational institutions realistically can comply with either state or federal law, but not both. Furthermore, if a state’s law directly conflicts with Title IX, the doctrine of preemption derived from the U.S. Constitution compels Title IX to preempt the state’s law.

Nonetheless, it is important to note that OCR’s decision is not a legal ruling. OCR is a part of the executive branch, and therefore, enforces federal law. However, shortly after the OCR’s finding was announced to the parties, a federal lawsuit was filed by the three cisgender females. Soule, et al. v. Connecticut Association of Schools, Inc., et al., 320-cv-00201 (D. Conn. Feb. 2020).

The allegations raised in the complaint are those that were raised with OCR. The three cisgender females claim CIAC and the respective school districts violated Title IX by failing to provide accommodation for the interests and abilities of girls and failed to provide equal treatment, benefits, and opportunities for girls.

However, unlike OCR, this federal court has the ability to make a monumental legal ruling. In addition to asking for an injunction prohibiting any transgender students from competing in female interscholastic athletic competition and the removal of all records obtained by these athletes, the three cisgender females have asked the court to declare that CIAC and the respective school districts to have violated Title IX by implementing the policy.

The federal court’s decision will essentially either confirm or reject OCR’s position taken in this case. If the court holds that the policy does not violate Title IX, OCR would be improperly enforcing Title IX. However, if the court decides that the policy does in fact violate Title IX, the court would essentially validate OCR’s position.

Though there is little precedent on this issue, a recent U.S. Supreme Court decision may be an indication of how this court will decide. On June 15, the court held in a 6-3 decision that Title VII, which prohibits workplace discrimination based on one’s sex, includes gender identity and sexual orientation. Bostock v. Clayton Cty., Georgia, 2020 U.S. LEXIS 3252 (2020).

Although SCOTUS’s holding only applies to workplace discrimination, the rationale behind this decision may be applied by the federal district court.

Regarding the Title VII ruling, SCOTUS specifically stated, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

This determination may validate the transgender female athletes’ argument that prohibiting transgender athletes from competing in athletic events that align with their gender identity is discrimination based on sex.

However, there is a distinct difference between these cases. The Title VII cases dealt with only employees alleging they were discriminated against. In this case, both cisgender female and transgender female athletes contend a ruling not in their favor results in discrimination against them.

In fact, Justice Samuel Alito’s dissent discussed the impact the Title VII ruling will have on this case. Specifically, Alito vocalized the cisgender female athletes’ argument that women do not have an equal opportunity to participate in sport when transgender female athletes are allowed to participate in women’s competition. Alito further reiterated that a ruling in favor of the transgender female athletes undermines one of Title IX’s major achievements, giving young women an equal opportunity to participate in sports.

As is evident from the Title VII cases, the United States’ highest court is split on Connecticut’s transgender policy. Although the Title VII decision gives the transgender female athletes hope, the cisgender female athletes can find comfort that multiple SCOTUS justices have found merit in their argument.

The Title VII ruling has created an equal amount of clarity and confusion. Gender identity now falls under the scope of sex. Therefore, prohibiting transgender athletes from competing in athletic competition reserved for their gender identity would logically result in a Title IX violation. However, if it is determined that cisgender female athletes are losing an equal opportunity with such policies, cisgender female athletes will then be the class discriminated against.

With the attention SCOTUS has given to this issue, a resolution of this case likely will not be in the near future. In the meantime, educational institutions and programs throughout the country will now need to reevaluate their transgender policies regarding athletics. Due to the risk of losing significant federal financial assistance, many anti-discriminatory transgender policies involving athletic may be removed for the upcoming school year.

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