Texas high schools to use birth certificate for purposes of determining student-athletes’ gender

ESPN reports that public school superintendents in Texas voted 586-32, in a January 2016 referendum, to adopt a new rule requiring schools to use birth certificates to determine  the gender of prospective student-athletes.

The statewide vote was brought on in October by the legislative council of the University Interscholastic League, the governing body of Texas high school sports, to refer and recommend the proposed rules change down to individual school districts. UIL policy director Jamey Harrison said the new rule codifies existing procedure.

Opponents denounce the new rule as an attempt to handicap transgender student-athletes’ eligibility to participate in sports and school activities, if not to ban their participation altogether. They argue the rule potentially runs afoul of both Title IX and the UIL’s nondiscrimination policy, which prohibits member schools from barring students in sports for race, color, religion, disability, national origin and gender.

The new rule provides guidance on the last category and reads: “Gender shall be determined based on a student’s birth certificate. In cases where a student’s birth certificate is unavailable, other similar government documents used for the purpose of identification may be submitted.” That criterion might inhibit transgender student-athlete participation, but it does not explicitly prevent it.

Depending on the interpretation and action of individual schools and school districts, that could change on Aug. 1, when the new rules take effect statewide. The policy could ultimately prove expensive as well as inconsistent, as it might counter U.S. Department of Education Office for Civil Rights 2014 guidance, which extends Title IX protections to transgender student-athletes.

Schools and districts that fail to comply face the expense of investigations by OCR and the potential loss of federal funds (with Texas budgeted to receive $3.2 billion from DOE in both 2016 and 2017). OCR intervention and the threat of a loss of federal funds was critical in the recent negotiated provision of locker-room access to a student in Palatine, Illinois.

The issue reflects the inconsistency of rules for transgender eligibility nationally, as standards vary from state to state. OCR’s decision to apply Title IX standards to transgender student-athletes was intended to provide clarity but has produced policies such as this one that push back against inclusion efforts.

The rule’s reliance on birth certificates is not explicitly discriminatory but risks inconsistent results as far as allowing students to play. Transgender student-athletes who have gotten their birth certificates changed might remain eligible to compete in that gender.

However, changing a birth certificate can require getting a court order, which can be an expensive and lengthy process. And the laws that create the possibility to change a birth certificate vary by state. In some states, changing the gender marker on a birth certificate can require proof of having had surgeries, which transgender people generally do not or cannot have until after they turn 18. In Texas, in the absence of specific policies or laws, successfully amending a birth certificate can depend entirely on an individual judge’s readiness to listen and learn from students, parents, attorneys and advocates.

The rule provides similar inconsistency for transgender transfer students in families that move to Texas. Those, coming in from states ready to allow birth certificate amendments, who already have their documents changed should be allowed to play under the rule. But transgender students transferring from states that forbid changing the gender marker on a birth certificate — such as Ohio, Idaho, Kansas and Tennessee — would be barred from participating in sports with the gender with which they identify.

Source: ESPN, 2/27/16, By Christina Kahrl

[Editor’s Note: In December 2015, Legal Clips summarized an article in the Omaha World-Herald reporting that the Nebraska School Activities Association (NSAA) had issued a draft policy addressing the participation of transgender students in high school sports and other activities that would put the initial decisions in the hands of parents and local school districts. It would also require a “rigorous” process that takes into consideration hormone therapy or gender reassignment surgery before a transgender student would be allowed to participate in sports, unlike some other states that only require that parents or a physician to attest to a child’s gender identity.]

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