Transgender Girls and School Sports: What Does the Office of Civil Rights Letter Mean?
Good news: nothing right now
For nearly 50 years, Title IX has served as a bedrock for establishing fair and equal educational opportunities. Any move the Office of Civil Rights takes to wield Title IX as a weapon against transgender high school girls erodes the significance of this landmark civil rights law.
On May 15, the United States Department of Education’s Office for Civil Rights (OCR) sent a letter to the Connecticut Intercollegiate Athletic Association (CIAC) and to 5 Connecticut school districts saying that the CIAC’s policy, which allows transgender girls to participate on girls sports teams, violates Title IX. The letter also threatened CIAC and the schools with denial of federal funds.
What led to this letter?
Last year, an extreme, conservative, right-wing organization, Alliance Defending Freedom, initiated a complaint with OCR challenging the continued participation of two transgender high school girls in school track events.
What is the effect of the letter?
The letter has no immediate effect. To be sure, OCR’s position that CIAC’s trans-inclusive policy violates Title IX is very alarming. It is also in the same vein of civil rights rollbacks and anti-LGBTQ policies we have seen emerge from the Trump administration since January 2017 However, the letter contains no authoritative legal analysis and its issuance has no immediate legal impact on CIAC or the schools to which it was addressed, much less any other schools, districts, or other statewide athletic associations. And, while it threatens the CIAC and the schools with loss of federal funds, OCR has no authority to deny these entities of federal funds by the issuance of this letter. It’s also important to note that in its entire history, OCR has never denied any entity federal funds for either alleged or demonstrated violations of Title IX.
Why doesn’t the letter have any immediate effect?
While the U.S. Department of Education is charged with enforcing the law, it does not have the ability to change the law or ultimately decide what the law means. The power to interpret the meaning of Title IX lies with the courts. There is a pending federal lawsuit in which CIAC and the five schools to which OCR’s letter is addressed are defending current Connecticut policy which authorizes transgender girls to participate in girls’ sports. Initially, ADF sought an accelerated determination by the federal court hearing the case. However, with the cancellation of the spring sports season due to the COVID-19 pandemic, the court has taken the case off any accelerated schedule. As a practical matter, any action taken by OCR, in follow up to the letter, will not be able to move more quickly than the pending lawsuit.
What is CIAC’s response to the letter?
The CIAC and the school districts named in the letter are vigorously defending the current sports policies that ensure full inclusion of transgender students in school athletics; and have publicly stated that they will continue to do so.
What does the law say?
Both state law and prior federal court decisions are on the side of fair and inclusive policies and support the CIAC policy. Connecticut has strong and clear non-discrimination laws as well as guidance from the state department of education that says transgender students must have equal access to school opportunities. That includes the ability of transgender girls to participate in girls’ school sports. There are multiple prior federal court decisions that have said that federal sex discrimination protections (including Title IX and others such as Title VII) apply to transgender people. In addition, the Connecticut Commission on Human Rights and Opportunities, the state agency charged with enforcing the Connecticut non-discrimination laws, has intervened in the federal lawsuit and is also defending the CIAC policy.
Note on pending Supreme Court cases
The United States Supreme Court is considering a case in which an employer is seeking to reverse federal precedent that establishes protections for transgender people under federal employment law known as Title VII. The Supreme Court is expected to issue a decision in that case before the end of June. The decision is likely to affect the arguments in the pending Connecticut Title IX lawsuit.
What can we do?
- Speak out in support of trans-inclusive school sports policies.
- Spread the word that the OCR letter has no practical impact, and is not a basis or reason for changing any existing policies that support and protect the inclusion of transgender athletes. Nothing is imminent, nothing has changed in terms of the law, and the CIAC policy remains intact.
- If you are a student or parent, let your school district representatives and any school administrators, teachers, and staff know that you support sports policies that allow transgender athletes to participate. Those who oppose transgender athletes may be vocal in some communities, skewing the perceived degree of support for their views. School leadership needs to hear the full-throated voices of those who stand behind the current trans-inclusive policies.
- Contact your federal legislators and urge them to support clear federal laws that ensure transgender students are protected in all areas of school and social life, including participation in sports.
- Keep an eye out for state legislation aiming to ban transgender girls from participating in sports and speak out against it. Idaho recently passed such a law. Its passage marks the first time a state adopted a law designed to exclude transgender students from athletics. Fortunately, similar bills introduced in other states have not passed. But advocacy and legislative outreach remains essential to stopping such bills.
- Contact GLAD at GLADAnswers.org We need to hear when transgender students are impacted negatively in any way. If you have questions or need more information, please reach out.