Student athletes’ participation in sports is often correlated with higher academic achievement and self-esteem. However, in 2011 almost 30% of LGBTQ athletes reported that they were harassed or attacked for their sexual orientation or gender identity while on a school sports team. The discrimination against LGBTQ athletes that occurs in school sports extends from early childhood all the way up to professional sports leagues.
Some recent progress has occurred in professional leagues. Notably, the NFL has included sexual orientation in its non-discrimination policy. Further, states including California have approved laws that allow student athletes to choose whether they want to compete as male or female based on their gender identity. However, this area of law and policy is just beginning to evolve.
Title IX of the Education Amendments of 1972 is a federal law banning sex discrimination in educational institutions (including in activities like sports) that receive federal funding. The ban on sex discrimination is supposed to be enforced at the elementary, secondary, college, university, and graduate school levels. Recently, both the Department of Education and a federal district court judge have determined that sex discrimination in this context encompasses sexual orientation discrimination.
This development followed on the heels of a change in policy announced by the EEOC in connection with Title VII. In the policy change, the EEOC stated that it would interpret and enforce Title VII’s prohibition on sex discrimination in employment as also prohibiting discrimination based on gender identity or sexual orientation.
In the district court case Layana White and Haley Videckis v. Pepperdine University, two women in a romantic relationship sued a university claiming that their basketball coach had mistreated and discriminated against them due to their sexual orientation. The university argued that Title IX didn’t apply to sexual orientation discrimination, but the judge ruled that claims of sexual orientation are gender stereotyping or sex discrimination claims. However, this is a district court decision, and it is not yet clear how an appellate court would rule on the same issue.
Although this is a step forward, religious schools can apply for specific exemptions from Title IX by telling the Department of Education that the law requires them to violate their religious beliefs. The Department has little discretion over whether to grant exemptions, and at those particular schools, student athletes will not have any way of obtaining relief.
The Human Rights Campaign has asked the Department of Education to announce when it grants exemptions and to require colleges receiving exemptions to publicize them. The purpose of the publicity would be to ensure that students have the opportunity to make determinations about school attendance based on complete information about the school and university’s ability to discriminate against the student.
Transgender athletes face particular challenges in connection with sports participation. Sports teams and leagues are often organized by gender, with male and female athletes competing only against members of the same gender. The International Olympic Committee and NCAA have passed strict policies related to transgender athletes. For example, the NCAA policy requires female-to-male athletes who want to play on a woman’s team to undergo at least a year of testosterone suppression in order to become eligible.
Transphobia and misunderstanding of gender identity and expression in sports is rampant. For example, transgender women may face criticism or taunts in connection with their participation on sports teams when they compete against the gender with which they identify. However, based on the above-referenced Department of Education policy and the district court ruling, Title IX protects students from discrimination and harassment based on their gender identity and should theoretically prohibit such conduct.
In spite of a national trend toward recognizing that transgender students should be able to participate in sports according to their gender identity, certain states are actively working against inclusion. Fifteen states and the District of Columbia permit transgender youth to participate in sports based on their gender identity. But the University Interscholastic League, the governing body for Texas high school sports, proposed a policy that would require a student’s gender to be determined by their birth certificate for purposes of joining sports teams.
Changing your gender marker on your birth certificate and other identification documents generally requires an expensive court order, which can be difficult for many transgender youth to obtain, particularly if they do not have parental support. The Texas policy may eventually be found to violate Title IX, but this issue has yet to be addressed by the courts.
