Inclusion Is Necessary to Protect the Health and Safety of Transgender

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Inclusion is Necessary to Protect the Health and Safety of Transgender Student-Athletes: Are Recent Legal Challenges Enough to Move the Goalposts? Christin Flynn Lal* “You shouldn’t have to give up what you love, to be who you want to be,” -June Eastwood, transgender athlete from Missoula, Montana.

INTRODUCTION Exclusionary policies for transgender student-athletes’ participation in school sports pose a severe health risk to a vulnerable population and states have an obligation to protect the health and safety of all students by enacting non-discriminating statutes. Issues of inclusion are particularly poignant for adolescents who are experiencing changing bodies, and nowhere is that more obvious than on the sports field, in the locker room, and in the restrooms.1 For transgender students, the opportunity to participate in sports leads to better grades, greater homework completion, higher educational and occupational aspirations, and improved self-esteem.2 Organizations around the country are grappling with issues of inclusion for transgender youth and adults in public, in the military, and in corporations.3 While the attitudes of Americans are trending towards

* Christin Flynn Lal, Suffolk University Law School J.D. Candidate, 2021; Tufts University, 1991. Christin would like to thank Professors Renée Landers and Shailini George for their writing guidance and encouraging conversations, and her daughters Anjali and Arya for being her inspiration and her everyday joy. Christin can be reached at [email protected]. 1 Bethany Alice Jones et al., Sport and Transgender People: A Systematic Review of the Literature Relating to Sport Participation and Competitive Sport Policies, 47(4) SPORTS MED. 701, 702 (2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5357259/ (last visited Nov. 30, 2019) “[T]ransgender people were more likely to avoid situations when they were afraid of being harassed, identified as transgender or ‘outed’, such as in clothes shops, public toilets, and gyms. Gyms are a popular outlet to engage in sport-related physical activities (i.e. gym fitness exercises) and therefore it is important to create an inclusive environment given the established mental and physical health benefits of physical activity and sport.” Id. 2 Id. Reports show that athletes have a GPA that is between 0.2 and 0.4 points higher on a 4.0 scale than students not participating in athletics. Furthermore, 56% of LGBTQ team members and 66% of team leaders competing in high school sports report feeling a positive sense of belonging at school. Id. 3 EEOC v. R.G., 884 F.3d 560, 569 (6th Cir. 2018) cert. granted; Adams v. Sch. Bd. of St. Johns Cnty., Fla., 318 F. Supp. 3d 1293 (M.D. Fla. 2018); Stone v. Trump, Civil Action No. GLR-17- 2459 2019 WL 4168889 (Dist. Md.) (Sept. 3, 2019) (enables individuals barred from joining military due to their transgender status continue with their complaint); Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019) (remanding case indicating ban on open service for transgender people must pass “heightened” judicial scrutiny); see also Adam Schaeffer, How One Simple Ad About Transgender Athletes Could Win Matt Bevin His Election, THE FEDERALIST (Sept. 5, 2019), 232 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVI NO. 3 increased support of transgender rights compared to five years ago, there is still fear and resistance to inclusion for students on interscholastic sports teams.4 The ability for transgender students to fully participate in all aspects of school life is an issue of healthcare, both mental health and physical well-being.5 Despite the proven benefits of inclusion in all aspects of student life, 77% of transgender students in grades Kindergarten – 12 (“K-12”) have reported experiencing harassment by students, teachers, or staff, even though transgender people comprise only .6% of the population in the United States.6 Even in Massachusetts, which has laws in place to protect transgender students from discrimination, a recent study revealed that 61% of transgender students were unable to use bathrooms compatible with their gender identity or expression, and 43% of transgender students were unable to use their chosen name or gender pronouns at school.7 Research shows that stigma and discrimination have long-lasting negative health consequences, including greater risk of post-traumatic stress disorder, depression, anxiety, suicidality, and hypertension as adults.8 Transgender students across the country are subject to conflicting messages about their participation, not only from state to state but in many cases from school to school, putting their physical and psychological well-being at risk.9 The binary sex-segregation of sports reinforces the https://thefederalist.com/2019/11/05/matt-bevin-ad-against-andy-beshear-trans-athlete-might- win-election/ (last visited Nov. 30, 2019). Predicting victory in the Kentucky 2019 gubernatorial election for Matt Bevin, due “in no small part” to an ad campaign targeted at his competitor’s support for transgender athlete inclusion, Bevin lost to a Democrat in a state that voted for Trump by 30 points in the 2016 presidential election. Id., see also Maggie Astor, Danica Roem Wins Virginia Race, Breaking a Barrier for Transgender People, THE N.Y. TIMES (Nov. 4, 2017), https://www.nytimes.com/2017/11/07/us/danica-roem-virginia-transgender.html (last visited Dec. 29, 2019). 4 Robert P. Jones, Natalie Jackson et al, America’s Growing Support for Transgender Rights, PUBLIC RELIGION RESEARCH INSTITUTE (Apr. 2019), shttps://www.prri.org/research/americas- growing-support-for-transgender-rights/. The survey indicated “…more than 62% of Americans say they have become more supportive of transgender rights compared to their views five years ago,” with all religious affiliations reporting their members had become more supportive than more opposed). Survey was conducted by a random sample of 1,100 adults living in the United States, including ages ranging from 18-65+, dispersed somewhat equally between political parties and major religious affiliations, including unaffiliated. Id. at 26. 5 Transgender Inclusion in High School Athletics, GLSEN.ORG https://www.glsen.org/article/transgender-inclusion-high-school-athletics (last visited Oct. 4, 2019); see also Jones et al., supra note 1, at 702 “[an inclusive environment for sport] is particularly important for transgender people as they have been found to report a high prevalence of depression and anxiety, which could be managed with physical activity.” Id. 6 A.R. Herman, et al., How Many Adults Identify as Transgender in the United States? THE WILLIAMS INSTITUTE, U.C.L.A. SCHOOL OF LAW (June 2016), https://williamsinstitute.law.ucla.edu/wp- content/uploads/How-Many-Adults-Identify-as-Transgender-in-the-United-States.pdf (last visited Oct. 23, 2019); see also Brief for the States of New York, et al. as Amici Curiae Supporting Plaintiff-Appellee at 8, Adams v. Sch. Bd. of St. Johns Cnty., Fla. 318 F. Supp. 3d 1293 (M.D. Fla. 2018) (No. 18-13592). 7 Corey Prachniak-Rincón et al, 2020 Report & Recommendations, 37 MASS. COMM’N ON LGBTQ YOUTH (July 1, 2019), https://www.mass.gov/files/documents/2019/04/04/MA-Commission- on-LGBTQ-Youth-2020-Report-and-Recommendations_0.pdf (last visited Dec. 28, 2019). 8 Brief for the States of New York, et al. as Amici Curiae Supporting Plaintiff-Appellee at 12, Adams v. Sch. Bd. of St. Johns Cnty., Fla. 318 F. Supp. 3d 1293 (M.D. Fla. 2018) (No. 18-13592). 9 High School Policies, TRANSATHLETE.COM, https://www.transathlete.com/k-12 (Sept. 2019) (last visited Oct. 27, 2019). Transathlete.com was started in 2013 by transgender duathlon Chris 2020 JOURNAL OF HEALTH & BIOMEDICAL LAW 233 idea that sexes are innately different from one another resulting in the erasure and stigmatization of transgender students and those who do not self-identify as strictly male or female.10 Part I of this note examines the language of gender identity, the history of transgender participation in sports, and how schools currently address participation in sports for students who identify as transgender. Part II of this note addresses the health issues surrounding transgender participation in sports including benefits, risks of harm, fears of and opposition to inclusion of transgender students in public schools. This section dives deeper into how states and federal agencies have attempted to address the rights of transgender students, and discusses cases currently in active litigation across the country that will influence future court decisions on transgender student athletes. Part III argues that fear should not drive policy or law, and absent a federal solution that defines “sex” to include gender identity, states should enact inclusionary policies to protect the health and safety of transgender student-athletes in the K-12 school system. Cases currently under review by the Supreme Court will influence how much continued litigation would be required to encourage states to craft legislation in order to comply under the umbrella of Title IX, as guided by the precedents and current holdings in Title VII cases. I. HISTORY OF TRANSGENDER ATHLETES AND THE LAW This section begins by discussing language and the meaning of the words that are at the heart of the legal battles concerning transgender rights, and describes one such case involving a transgender athlete that took place over thirty years ago. Next, this section examines a short history of Title IX and Title VII’s interpretations of “sex” and “gender identity,” and concludes by describing the inclusionary and exclusionary patchwork of athletic policies that govern transgender student-athletes in the United States. a. Words Matter in How Society Understands and Discusses Sex and Gender Identity. Understanding the terminology used when discussing issues of transgender rights is more than just semantics; it is at the heart of the current legal battle for inclusion of transgender people.11 A person’s “sex” is typically assigned at birth based on external reproductive organs and is a combination of a person’s bodily characteristics including chromosomes, hormones, internal and external reproductive organs, and secondary sex characteristics.12 “Gender Identity” is not outwardly visible to others, but is a person’s

Mosier, who is the first known transgender man to make a men's US National Team, and has been actively involved in encouraging inclusion policies in schools and sports around the globe, and advising the International Olympic Committee policy on transgender athletes. 10 Cathryn B. Lucas-Carr & Vikki Krane, What is the T in LGBT? Supporting Transgender Athletes Through Sport Psychology, Vol. 25, 532, 533 THE SPORT PSYCHOLOGIST (2011), https://pdfs.semanticscholar.org/7e8e/dc96d8bdf1cbc7d13b6a14d29cac8ef3a40f.pdf (last visited Nov. 30, 2019). 11 Transcript of Oral Argument at 13-16, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, et al. 139 S. Ct. 1599 (2019) (No.18-107) https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-107_4gcj.pdf (last visited Jan. 6, 2020). Justice Roberts focuses on the use of the word “sex,” questioning whether it includes sexual orientation, only “biological” sex, or transgender status to determine whether a transgender person can bring a Title VII claim on the “basis of sex.” 12 Debunking the “Bathroom Bill Myth,” Accurate Reporting on Nondiscrimination: A Guide for Journalists, GLAAD.ORG (April 2017),

234 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVI NO. 3 internal, deeply held sense of their gender and is separate from a person’s sexual orientation, which describes a person’s physical, romantic or emotional attraction to other people.13 A person whose sex assigned at birth aligns with their gender identity is described as “cisgender”.14 When a person’s gender identity conflicts with the sex assigned at birth, they may seek to externally express their identity to better align with how they feel on the inside and fall under the umbrella term “transgender.”15 Children as young as four years old can express feelings and behaviors relating to discomfort with their assigned gender and may find themselves increasingly distressed as the hormonal and anatomical changes of puberty diverge from their gender identity.16 Those children who have more intense symptoms and distress around their gender identity, who are more “persistent, insistent, and consistent” in declarations (“I want to be a boy (or girl)”) are more likely to suffer from gender dysphoria, the mental distress experienced by having a gender identity at odds with one’s physical body or assigned gender.17 Gender dysphoria, if left unaddressed, can cause debilitating distress, impairment of function, substance use, self-mutilation to alter one’s genitals or secondary sex characteristics or suicide.18 Medically recommended options to resolve this conflict of identity include any combination of social transition, mental health care, hormone therapy or gender confirmation surgery, and they are dependent on the needs of the individual, access to health care, and ability to pay for the costs of these treatments.19 All of these options are https://www.glaad.org/sites/default/files/Debunking_the_Bathroom_Bill_Myth_2017.pdf (last visited Nov. 30, 2019). 13 See id. 14 See id. 15 Id.; Ranna Parekh, M.D., M.P.H., What is Gender Dysphoria? AM. PSYCHIATRIC ASS’N (Feb. 2016), https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender- dysphoria (last visited Oct. 23, 2019). But see Lucas-Carr & Krane, supra note 10, at 538 (indicating use of psychiatric diagnosis is controversial, but diagnosis is critical for insurance coverage). 16 Ranna Parekh, M.D., M.P.H., What is Gender Dysphoria? AM. PSYCHIATRIC ASS’N (Feb. 2016), https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria (last visited Oct. 23, 2019). 17 See id. The DSM-V diagnoses a child expressing at least six different criteria with gender dysphoria, accompanied by significant distress or impairment in function, lasting at least six months. 1. A strong desire to be of the other gender or an insistence that one is the other gender; 2. A strong preference for wearing clothes typical of the opposite gender; 3. A strong preference for cross-gender roles in make-believe play or fantasy play; 4. A strong preference for the toys, games or activities stereotypically used or engaged in by the other gender; 5. A strong preference for playmates of the other gender; 6. A strong rejection of toys, games and activities typical of one’s assigned gender; 7. A strong dislike of one’s sexual anatomy; 8. A strong desire for the physical sex characteristics that match one’s experienced gender. 18 See supra note 8. 19 Hannah Stocker, He’s the Woman: Calling for Dissolution of Discriminatory Policies in High School Athletic Associations Under the ADA, 2017 MICH. ST. L. REV. 927, 942 (2017). Social transition includes using pronouns that align with one’s gender identity, may involve wearing clothing of one’s gender identity. Id.; and see supra note 8, at 13 (describing social transition as “publicly identifying as the chosen gender, adopting a new name, using different pronouns, grooming and dressing in a manner that expresses one’s gender identity, using restrooms and sex-segregated facilities consistent with one’s gender identity.”). Id.; see also Transgender Healthcare, HEALTHCARE.GOV, https://www.healthcare.gov/transgender-health-care/ (last visited Nov. 2, 2019). Indicating “Many health plans are still using exclusions such as ‘services related to sex change’ or ‘sex reassignment surgery’ to deny coverage to transgender people for certain health care services. Coverage varies by state. Id; see also Issue Brief: Health insurance coverage for gender 2020 JOURNAL OF HEALTH & BIOMEDICAL LAW 235 considered different aspects of “transition” and are intended to better align the outward manifestation of a person’s gender identity to match their internal sense of self.20 Transgender people are distinguished from people who are “intersex” in that intersex people are born with both male and female anatomy and physiology, and are generally assigned a sex at birth by their parents.21 In some cases, an infant may be surgically altered to conform to that chosen sex.22 While the term intersex is often conflated with transgender, many intersex athletes do not realize they are intersex until they undergo testing, for example, as is the requirement under International Olympic Committee (“IOC”) rules.23 While the focus of this note will be primarily on transgender athletes, any laws and policies discussed could encompass those athletes who also identify as intersex. Similarly, transgender student athletes who are too young, unable or choose not to undergo hormone therapy or gender confirmation surgery to aid in transition face similar challenges as intersex athletes. b. Transgender Participation in Sports is Not New and Neither is the Controversy.

affirming care of transgender patients, AM. MED. ASS’N, https://www.ama- assn.org/system/files/2019-03/transgender-coverage-issue-brief.pdf (last visited Nov. 2, 2019). Indicating “Every major medical association in the United States recognizes the medical necessity of transition-related care for improving the physical and mental health of transgender people and has called for health insurance coverage for treatment of gender dysphoria.” As of 2017 twenty states (CA, CT, CO, DE, HI, IL, MA, MD, MI, MN, NJ, NM, NV, NY, OR, PA, RI, VT and WA) and District of Columbia prohibit health insurers from excluding coverage for transgender health services. Id.; see also State Maps of Laws and Policies: Transgender Healthcare, HUM. RTS. CAMPAIGN (Jan. 15, 2019), https://www.hrc.org/state-maps/transgender-healthcare (last visited Nov 2, 2019); see also Benji Jones, The staggering costs of being transgender in the US, where even patients with health insurance can face six-figure bills, BUS. INSIDER (June 10, 2019), https://www.businessinsider.com/transgender-medical-care-surgery-expensive-2019-6 (last visited Nov. 2, 2019). Indicating the cost of transgender healthcare can run up to $100,000, and it is often not covered by healthcare. Id. 20 Issue Brief: Health insurance coverage for gender affirming care of transgender patients, AM. MED. ASS’N, https://www.ama-assn.org/system/files/2019-03/transgender-coverage-issue-brief.pdf (last visited Nov. 2, 2019). “Positive health effects from gender-affirming care extend to children and adolescents... [For youth]… access to medications and surgeries result in fewer mental health concerns than has been historically seen among transgender populations and…self-reported feelings of regret among adolescents following receipt of gender-affirming care are extremely low.” Id. 21 See Lucas-Carr & Krane, supra note 10, at 535. 22 See id. 23 Erin E. Buzuvis, Article: Transgender Student-Athletes And Sex-Segregated Sport: Developing Policies Of Inclusion For Intercollegiate And Interscholastic Athletics, 21 SETON HALL J. SPORTS & ENT. LAW 1, 19- 21 (2011). Intersex athletes who didn’t know they were intersex until tested by the IOC include Austrian downhill skier Eric Schinegger (1966), Polish sprinter Eva Klobukowsk (1967), runner Maria Jose Martinez Patino (1987), eight of the over 3000 female athletes in the Atlanta summer games in 1996 tested positive for evidence of a Y chromosome, and Indian runner Santhi Soundarajan (2006). Id. See also EN-IOC-CIOC Consensus Meeting on Sex Reassignment and Hyperandrogenism, INT’L OLYMPIC COMM., http://www.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015- 11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf (last visited Nov. 6, 2019).

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In 1974, Dr. Richard H. Raskind was a nationally ranked men’s tennis player in the 35-and-over division.24 In 1977, Raskin medically transitioned to a woman, adopted the name Dr. Renee Richards and continued to compete in master’s tennis as a woman.25 After the United States Tennis Association (“USTA”) implemented a sex determination test that Richards claimed was “insufficient, grossly unfair, inaccurate…for the purposes of excluding individuals from sports events on the basis of gender,” she sued the USTA for sex discrimination.26 The USTA defended its strict sex testing by claiming “there is a competitive advantage for a male who has undergone ‘sex change’ surgery as a result of physical training and development as a male” and feared the “10,000 or so transsexuals…and imposters” would flood the women’s field in pursuit of millions of dollars of prize money.27 The court ruled in favor of Dr. Richards, reasoning “When an individual such as plaintiff…finds it necessary to his own mental sanity to undergo a sex reassignment, the unfounded fears and misconceptions of defendants must give way to the overwhelming medical evidence that the person is now female.”28 Dr. Richards’ experience on the professional tennis circuit in the 1970’s and the arguments made against her participation were precursors to the more recent resistance that high school, college, and elite transgender athletes have encountered.29 The

24 Richards v. United States Tennis Assoc., 93 Misc. 2d 713, 714 (S.Ct. N.Y. 1977). 25 See id. 26 Id. The Barr body test determined the presence of a second “x” chromosome in someone assigned female at birth, and was implemented by the USTA “as a direct result” of Dr. Richards’ application to play in the singles at the Women’s open and her frank presentation of her medical situation in a personal letter to the chairman of the United States Open. Id. at 715. 27 Id. at 716. The USTA was also concerned about nationalistic competitors, especially the “iron curtain” countries, and the risk of them producing athletic stars by means undreamed of a few years ago. Id. 28 United States Tennis Assoc., 93 Misc. 2d at 722. The court found the use of “Barr” body test was in violation of the state’s Human Rights Law, reasoning the “only justification for using a sex determination test in athletic competition is to prevent fraud, i.e. men masquerading as women, competing against women.” The court further held that Dr. Richards should be classified as a female, she would have no unfair advantage when competing against other women, her physical attributes were within the female norm, and for anyone in the medical or legal field to find otherwise was unjustified. Id. at 721-22; see also Parekh supra note 15, indicating “sex reassignment” also called “gender confirmation surgery,” is one choice available to transgender people to aid in their transition. See Parekh supra note 15. 29 See Taylor Dutch, June Eastwood to Become First Transgender Runner to Compete in D1 Cross Country, RUNNERSWORLD.COM (Aug.31, 2019), https://www.runnersworld.com/runners- stories/a28875180/june-eastwood-first-transgender-runner-di-cross-country (last visited Oct. 20, 2019). Comments section after article includes extensive discussion of the “unfairness” of the athlete’s advantage of having been born a male, despite her slower times post-transition, following NCAA rules and not winning against cisgender women. See also, Samantha Pell, Maryland high school leaves athletic conference over transgender policy, THE WASH. POST (March 22, 2019) https://www-washingtonpost-com.ezproxysuf.flo.org/sports/2019/03/22/maryland-high- school-leaves-athletic-conference-over-transgender-policy (last visited Oct. 20, 2019). Grace Brethren School athletic director pulls out of Potomac Valley Athletic Conference because of the league’s allowance of transgender athletes to compete on teams consistent with their gender identities. The athletic director indicated “[Schools] that allow boys to play on girls’ teams is a form of cheating [and] it gives them an advantage over girls teams who only play female athletes.” See also Robert Collias, KSM girls’ volleyball roster includes transgender player, THE MAUI NEWS (Aug. 14, 2019), 2020 JOURNAL OF HEALTH & BIOMEDICAL LAW 237 complainants today similarly posit that the characteristics of someone assigned as male at birth are so overwhelming that no “biological” female could possibly compete.30 They argue that women’s events will be flooded with men and boys fraudulently in pursuit of athletic glory, including college recruitment, scholarships, and opportunities to compete at higher levels.31 Additionally, arguments at the scholastic level include additional risk of injury to other students, particularly when a transgender girl (male-to-female) is playing on a girls team.32 While the language used today to talk about transgender people has changed, the fears expressed about Renee Richards by the USTA are the same unrealized fears that are being advanced by opponents to inclusion today even at the interscholastic level.33 c. The History of Title IX’s Use of “On the Basis of Sex” Leaves Gaps to Interpret Inclusion of Transgender Student-Athletes. Title IX of the Education Amendments Act of 1972 (“Title IX”) states “no person shall, on the basis of sex, be excluded from participation in…any education program or activity receiving Federal Financial assistance…” and does not further define the word “sex.”34 Congress passed Title IX in 1972 with the goal of extending educational

https://www.mauinews.com/sports/local-sports/2019/08/ksm-girls-roster-includes- transgender-player/ (last visited Oct. 20, 2019). The school has a policy that enables a student to participate in a sport consistent with their gender identity, regardless of the sex they were assigned at birth. An opposing coach objected to the participation of the transgender student athlete, saying “In my opinion, it’s very irresponsible for the league to place these young women, who are minors, in an elevated level of risk.” 30 Title IX Discrimination Complaint on Behalf of Minor Children Selina Soule, et al., U.S. DEP’T OF EDUC. OFFICE OF CIV. RIGHTS (June 17, 2019) (hereinafter “Soule Complaint” or “the Complaint”), http://www.adfmedia.org/files/SouleComplaintOCR.pdf (last visited Dec. 1, 2019). The Alliance Defending Freedom (“ADF”), a legal advocacy and rights group founded by 30 leaders of the Christian Right, filed the lawsuit on behalf of the plaintiffs. The ADF is also defending the Harris Funeral Home against the EEOC for firing a transgender funeral home employee based on her sex, in the case discussed in Parts II and III of this Note. The ADF is designated a “hate group” by the Southern Poverty Law Center for its anti-LGBTQ agenda. See Extremist Group Info: Alliance Defending Freedom, SOUTHERN POVERTY LAW CENTER, https://www.splcenter.org/fighting-hate/extremist-files/group/alliance-defending-freedom (last visited Jan. 3, 2020). 31 See Soule Complaint, supra note 30; but see Lucas-Carr & Krane, supra note 10, at 538. “The surgeries are invasive, painful and can require long rehabilitation… A transsexual athlete could lose a year of training…no one goes through years of hormone therapy, massive surgery and this permanent life change on a whim, just to compete.” Id. 32 See Robert Collias, KSM girls volleyball roster includes transgender player, THE MAUI NEWS (Aug. 14, 2019), https://www.mauinews.com/sports/local-sports/2019/08/ksm-girls-roster-includes- transgender-player/ (last visited Oct. 20, 2019). 33 Debunking the “Bathroom Bill” Myth: Accurate Reporting on Nondiscrimination: A Guide for Journalists, GLAAD.ORG (April 2017), https://www.glaad.org/sites/default/files/Debunking_the_Bathroom_Bill_Myth_2017.pdf (last visited Nov. 30, 2019). Terminology such as “sex change” “sex reassignment” and “transsexuals” are no longer used when discussing transgender people, and indicating a transgender person is an “imposter” is considered defamatory and insulting. Id. at 15; 34 Title IX of the Ed. Amendments Act of 1972, Pub. L. No. 116-68, (codified at 20 U.S.C. §§ 1681-1688 (2019)).

238 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVI NO. 3 programs to women.35 At that time, quotas existed for women’s admissions to elite colleges, women were excluded from certain programs such as medicine, were denied tenure due to pregnancy and maternity leaves, or were prohibited from faculty clubs.36 The original Act encountered heavy resistance from the National Collegiate Athletics Association (“NCAA”) and Senator John Tower (R-Tex) who feared making room for women would signal the demise of men’s revenue-generating sports.37 Despite numerous attempts by fearful legislators to derail Title IX, President Gerald Ford signed additional athletic regulations in 1975, which provided that “[n]o person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient [of federal funds], and no recipient shall provide any such athletics separately on such basis.”38 The regulations do, however, allow for sex segregation for teams based upon “competitive skill” or if the activity is a “contact sport.”39 Additionally, under Title IX a plaintiff may state a claim of discriminatory harassment based upon a hostile educational environment by alleging, among other things, the harassment was based on sex.40 Title IX holds schools responsible for taking steps to prevent sex-based harassment, including sexual harassment, and must respond quickly when it does occur.41 Early Title IX cases focused on the exclusion of girls from sports teams where sex-segregated teams had not been created and girls had not been permitted to participate on traditionally all-male athletic teams.42 Courts routinely rejected arguments that girls were more easily subject to injury than boys, reasoning the risk of injury to the “average boy” is not used as a reason for denying boys who are smaller or less skilled than average,

35 Equal Access to Education: Forty Years of Title IX, U.S. DEP’T OF JUSTICE, 2 (June 23, 2012), hppt://www.justice.gov/crt/about/edu/documents/titleixreport.pdf. (last visited Oct. 24, 2019). 36 See id. 37 History of Title IX, WOMEN’S SPORTS FOUNDATION (Aug. 9, 2019), https://www.womenssportsfoundation.org/advocacy/history-of-title-ix/ (last visited Oct. 24, 2019). See also Deborah Brake & Elizabeth Caplin, The Path of Most Resistance: The Long Road Toward Gender Equity in Intercollegiate Athletics, Vol.3:51, 52, 54 DUKE J. OF GENDER, LAW AND POLICY (1996) https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1224&context=djglp (last visited Oct. 24, 2019). Both NCAA and Senator John Tower feared Title IX would usher in the demise of men’s sports, specifically, interference with revenue-generating sports such as football would spell disaster for the male athletes already playing and the female athletes who wanted to play sports. Id. at 54. 38 See Brake & Caplin, supra note 37, at 52-55. At least three separate bills were introduced to limit the impact of revenue-generating sports such as football: The Tower Amendment in 1974; H.R. 8394, 94th Cong., 1st Sess. (1975); and 2. 2106, 94th Cong. 1st. Sess. (1975); all were defeated. Id. at 55. 39 Scott Skinner-Thompson & Ilona M. Turner, Title IX’s Protections for Transgender Student Athletes, 272 WISC. JOURNAL OF LAW, GENDER & SOCIETY, VOL. 28:3, 271, 274 (2014). 40 See Title IX, supra note 34. 41 Equal Access to Education: Forty Years of Title IX, U.S. DEP’T OF JUSTICE, 2 (June 23, 2012), hppt://www.justice.gov/crt/about/edu/documents/titleixreport.pdf. (last visited Oct. 24, 2019). 42 See Skinner-Thompson, supra note 39, at 274, citing Nat’l Org. for Women, Essex Cnty. Chapter v. Little League Baseball, Inc. Courts rejected defendants’ arguments that 8-12-year-old girls were at a greater hazard than boys while playing baseball, and that “girls must be invited and admitted as freely and as unreservedly as the boys.” Id. at 274-75. 2020 JOURNAL OF HEALTH & BIOMEDICAL LAW 239 and keeping girls safe from injury could not justify discriminatory policies preventing girls from participating.43 Title IX has succeeded in expanding access to interscholastic and intercollegiate sports for girls, and consequently, it has also legitimized the binary, sex-segregated nature of sports.44 The inclusion of transgender people for purposes of sex discrimination under Title IX cases has primarily focused on issues around harassment.45 Cases settled by the Department of Education have clarified that under Title IX, sex discrimination includes harassment based both on “biological” sex as well as failure to conform to gender stereotypes.46 In 2016, the Department of Education issued a “Dear Colleague Letter” (“DCL”) offering “significant guidance” under Title IX that prohibited sex discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.47 The document clarified that a school must allow transgender students access to locker rooms consistent with their gender identity.48 While the document stops short of indicating the school must allow students to participate in athletics based on their gender identity, the school must not rely on “overly broad generalizations” about transgender students or others’ discomfort with transgender students in crafting its policies.49 As an accompaniment, the Department of Education published a resource guide for schools with examples of policies implemented by school systems across the country to support transgender students in schools.50 On February 22,

43 See Skinner-Thompson, supra note 39 at 275. Citing Darrin v. Gould, 85 Wn.2d 859, 877 (Wash. Sup. Ct. 1975); Force v. Pierce City R-VI Sch. Dist., 570 F. Supp. 1020, 1022-32 (W.D. Mo. 1983); Fortin v. Darlington Little League, Inc., 514 F.2d 344 (1st Cir. 1975). 44 Erin E. Buzuvis, Article: Transgender Student-Athletes And Sex-Segregated Sport: Developing Policies Of Inclusion For Intercollegiate And Interscholastic Athletics, 21 SETON HALL J. SPORTS & ENT. LAW 1, 4 (2011). See also Protecting Civil Rights, Advancing Equity 33, U.S. DEP’T OF ED., OFF. OF CIV. RTS. (2015) https://www2.ed.gov/about/reports/annual/ocr/report-to-president-and-secretary-of- education-2013-14.pdf (last visited Oct. 27. 2019). “Between 1972 and 2011, girls’ participation in high school athletics increased from approximately 250,000 to 3.25 million students”. Id. 45 Equal Access to Education: Forty Years of Title IX, U.S. DEP’T OF JUSTICE, 2, 7 (June 23, 2012), hppt://www.justice.gov/crt/about/edu/documents/titleixreport.pdf (last visited Oct. 24, 2019). 46 Id., e.g. In J.L. v. Mohawk Central Sch. Dist. when a student was harassed for gender non- conformity the Department negotiated a settlement to train school staff on how to better prevent and remedy sex-based harassment. Id. at 7; see also Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp. 2d 135, 152 (N.D. N.Y. 2011) (finding harassment based on nonconformity with sex stereotypes is legally cognizable claim under Title IX); see also Equal Access to Education: Forty Years of Title IX, supra note 45, at 7-8. In Putman v. Bd. of Ed. of Somerset Indep. Sch. the Department (2011) filed an amicus brief in support of a male student who was harassed by his peers based on gender stereotypes, clarifying that sex-based harassing conduct based on gender stereotyping is not insulated from and is prohibited by Title IX. Additionally, in Doe v. Anoka Hennepin Sch. Dist. (2012) the Department investigated and implemented a comprehensive plan to prevent harassment of students based on gender stereotypes. Id. 47 Dear Colleague Letter, U.S. DEP’T OF JUST. CIV. RTS. DIV., U.S. DEP’T OF ED., OFF. FOR CIV. RTS. 1, 1 (May 13, 2016). 48 Id. at 3. 49 Id. “Title IX does not prohibit age-appropriate, tailored requirements based on sound, current and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.” Id. 50 Ann Whalen & David Esquith, Examples of Policies and Emerging Practices for Supporting Transgender Students, U.S. DEP’T OF ED., OFF. OF ELEM. AND SECONDARY ED., OFF. OF SAFE AND HEALTHY STUDENTS (May 2016),

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2017, under the Trump Administration, the Justice Department’s Civil Rights Division and the Department of Education’s Office for Civil Rights jointly rescinded the 2016 DCL guidance that clarified protections under the law for transgender students under Title IX.51 The Administration denied issuing new guidance or providing an alternate interpretation, creating an uncertain legal landscape that opened up the door to additional litigation.52 d. Title VII Case Law Interprets “Sex” to Include “Gender Identity.” Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination based on sex, race, color, national origin and religion.53 Federal courts and administrative agencies such as the Equal Employment Opportunity Commission (“EEOC”) regularly recognize that Title VII’s prohibition on sex discrimination applies to transgender plaintiffs.54 Many Title VII cases that involve sex discrimination specifically draw from the landmark Supreme Court case Price Waterhouse v. Hopkins in which a female employee was denied promotion in part because she did not conform to

https://www2.ed.gov/about/offices/list/oese/oshs/emergingpractices.pdf (last visited Nov. 30, 2019). 51 Trump Administration Civil and Human Rights Rollbacks, THE LEADERSHIP CONFERENCE ON CIV. & HUM. RTS., https://civilrights.org/trump-rollbacks (last visited Oct. 24, 2019). 52 See id.; see also Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 298 (W.D. Pa. 2017) Indicating Department of Justice and Education’s 2017 repeal of 2016 DCL guidance “appears to have generated an interpretive vacuum pending further consideration.” Id.; see also infra at Part II for additional proposals by the Administration to define “sex.” 53 Title VII of the Civ. Rts. Act of 1964, Pub. L. No. 116-68, (codified at 42 U.S.C. § 2000e-2(a) (2019)). 54 See Skinner-Thompson, supra note 39, at 283. See also Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998). Where a male employee alleged that he was sexually harassed by male co- workers, the Supreme Court held that same-sex harassment is sex discrimination under Title VII. Justice Scalia noted in the majority opinion: while same-sex harassment was "assuredly not the principal evil Congress was concerned with when it enacted Title VII… statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits 'discriminat[ion] . . . because of . . . sex.' [This] . . . must extend to [sex-based] discrimination of any kind that meets the statutory requirements." Id. at 79-80; see Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). A transgender female in transition brought a claim under Title VII after she was terminated from her position with the Georgia General Assembly, because, according to her employer, “Glenn’s intended gender transition was inappropriate…it would be disruptive, and…it would make Glenn’s co- workers uncomfortable.” The court concluded that the defendant discriminated against the plaintiff based on her sex by terminating her because she was transitioning. The court reasoned a person is considered transgender "precisely because of the perception that his or her behavior transgresses gender stereotypes." The court further stated that “an individual cannot be punished because of his or her perceived gender non-conformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual.” Id. at 1314, 1317-19; see also Macy v. Holder, EEOC Appeal. No. 0120120821, 2012 WL 1435995, *7 (Apr. 20, 2012) (holding discrimination against transgender individuals is “per se” sex discrimination); Chavez v. Credit Nation Auto Sales, L.L.C., 641 Fed. Appx. 883, (11th Cir. 2016); see generally Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII, U.S. DEP’T OF EQUAL EMP’T OPPORTUNITY COMM’N, https://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm (last visited Nov. 3, 2019). 2020 JOURNAL OF HEALTH & BIOMEDICAL LAW 241 gender stereotypes.55 She was told, among other things, that in addition to her outstanding performance, in order to secure a partnership she needed to "walk more femininely, talk more femininely, [and] dress more femininely."56 The court held that discrimination based on sex-stereotype is unlawful discrimination under Title VII, reasoning "[i]n the . . . context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender."57 Courts frequently look to Title VII to authority for guidance on Title IX cases because Title IX does not define “sex” or “on the basis of sex.”58 For example, in Whitaker v. Kenosha Unified School District No. 1 Board of Education, the Seventh Circuit applied Title VII principles in a Title IX context to find that the prohibition on sex discrimination requires schools to treat a transgender person consistent with gender identity, not necessarily sex assigned at birth.59 It is in this context that the most recent student “bathroom cases” have been evaluated and will have direct implications for transgender student-athletes, which will be discussed in depth in Part II. e. NCAA and Interscholastic Participation Policies Have Various Levels of Protections for Transgender Student-Athletes. In 1972, the NCAA was one of the most strident lobbyists in the attempt to derail Title IX, out of fear that giving women equal opportunities would forever alter the athletic system that men had enjoyed as theirs alone.60 In recent years, the NCAA had encountered hundreds of inquiries from schools with students who identify as transgender, such that the organization issued comprehensive guidelines to provide a model for uniformity across all participating schools.61 NCAA permits a trans male (female-to-male) student-athlete who has undergone testosterone therapy may compete on a men’s team but may no longer compete on a women’s team, and a trans female (male-to-female) student-athlete treated with testosterone suppression medication may

55 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). 56 Id. at 230-31, 235. 57 Id. at 250. 58 See Adams v. Sch. Bd., 318 F. Supp. 3d 1293, 1323-24 (M.D. Fla. 2018), citing Doe v. Boyertown Area Sch. Dist. 893 F.3d at 195 n.103 (quoting “Courts have frequently looked to Title VII authority for guidance with Title IX cases”); see also Allison Fetter-Harrott et al. Sex Discrimination in Schools: Has Change in Administration Meant Change in Protections for Transgender Students and Educators?, 44 DAYTON L. REV. 455, 463. But see Wittmer v. Phillips 66 Co., 915 F.3d 328, 330 (5th Cir. 2019) (declining to follow recent courts expanding definition of “sex’ to sexual orientation or gender identity); Zarda v. Altitude Express, Inc., 883 F.3d 100, 107-108 (2d Cir. 2018) (departing from prior precedent finding Title VII prohibits sexual orientation discrimination); Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221, 1224 (10th Cir. 2007) (declining to recognize discrimination for transgender classification as sex discrimination). 59 See Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1048 (7th Cir. 2017. But see Wittmer v. Phillips 66 Co., 915 F.3d at 330 (confirming Title VII does not encompass sexual orientation as binding precedent in Fifth Circuit). 60 See Brake supra note 37, at 56. 61 See NCAA Inclusion of Transgender Student-Athletes, NCAA OFF. OF INCLUSION (Aug. 2011), https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf (last visited Oct 26, 2019). “As more states, localities, and schools add gender identity and expression to their nondiscrimination policies, and as more courts hold that sex discrimination laws protect transgender people, transgender students and their parents are increasingly empowered to insist that athletics programs accommodate transgender students.” Id. at 5.

242 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVI NO. 3 compete on a women’s team after one calendar year of treatment, or one year post-surgical intervention.62 For those students who are not undergoing hormone treatment or gender confirmation surgery, the NCAA indicates that the athlete may participate in the sport that aligns with the person’s assigned gender at birth, and a female-to-male transgender student athlete may participate on a men’s or women’s team.63 A male-to-female transgender student-athlete may not compete on a women’s team.64 The NCAA’s guidelines target intercollegiate sports, but for interscholastic athletes who may not be old enough for medical transition, cannot afford or do not have access to medical treatments, medically-based solutions can be problematic. While the Court has long recognized that states and even local school districts have broad authority to protect the physical, mental, and moral well-being of its youth, this freedom has resulted in a patchwork of conflicting policies as to transgender student-athlete participation causing confusion at interscholastic competitions.65 State interscholastic participation policies typically fall into three general categories: inclusive policies, policies requiring some medical intervention, and restrictive policies. Other states have no policies and leave the decision up to the individual school districts.66 i. Inclusive High School Policies Encourage Full Inclusion of Transgender-Student Athletes. Twenty states, including Connecticut, Florida, Massachusetts, and Washington, currently have inclusive participation policies for transgender student-athletes which allow students to participate in the sex-segregated sport that aligns with their gender identity without having to undergo any medical treatments.67 Some states, like Massachusetts, have enacted amendments to existing non-discrimination laws which prohibit discrimination based on gender identity against students who attend public schools.68 The Massachusetts Department of Elementary and Secondary Education policy reads: “Where

62 2018 NCAA Inclusion Forum, NCAA OFF. OF INCLUSION, https://www.ncaa.org/sites/default/files/2018INC_Supporting_Transgender_And_Gender_Ex pansive_Student_Athletes_20180418.pdf (last visited Oct. 26, 2019). But see Athletic Equality Index 2018, ATHLETEALLY.ORG (March, 2019), http://www.athleteally.org/wp- content/uploads/2019/03/AEI_Updated_Mar_2019.pdf (last visited Nov. 10, 2019). Only 9 out of 65 NCAA conference schools have clearly and explicitly committed to following the NCAA’s guidelines for transgender athletes to be able to compete; 26 schools did not explicitly protect students from discrimination based on their gender expression; and one school, Baylor University, specifically stated that students could not “deviate from Biblical norms” or participate in advocacy groups that promote sexuality “contrary to biblical teaching.” Id. at 16-17. 63 See 2018 NCAA Inclusion Forum, supra note 62. 64 See id. 65 Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S 52, 72-74 (1976); see also, Adams v. Sch. Bd., 318 F. Supp. 3d 1293, 1311 (2018); and see High School Policies, TRANSATHLETE.COM (Sept. 2019), https://www.transathlete.com/k-12 (last visited Oct. 27, 2019). 66 High School Policies, TRANSATHLETE.COM (Sept. 2019), https://www.transathlete.com/k-12 (last visited Oct. 27, 2019). 67 See id. 68 Mass. Gen. Laws. c.76, §5 (2012) “No person shall be excluded from or discriminated against in admission to a public school of any town, or in obtaining the advantages, privileges and courses of study of such public school on account of race, color, sex, gender identity, religion, national origin or sexual orientation.” Id. 2020 JOURNAL OF HEALTH & BIOMEDICAL LAW 243 there are sex-segregated classes or athletic activities, including intramural and interscholastic athletics, all students must be allowed to participate in a manner consistent with their gender identity."69 The policy does not require a medical diagnosis in order to change gender markers on the student record, but requests confirmation of the students gender identity in the form of a letter from a parent, health care provider, school staff member or other family member or friend.70 Other inclusive states such as California, outline a formal appeal process for either the student or the school to determine eligibility to participate based on a student’s gender identity, which includes a hearing in front of a “Gender Eligibility Committee.”71 ii. Policies Requiring Some Medical Intervention Exclude Many, If Not Most, Transgender Student-Athletes. Seventeen states, such as Illinois, Missouri, and New Mexico, require that transgender student athletes have various levels of medical transition documented before they are allowed to participate in the sex-segregated sport of their gender identity.72 Other states, such as Maine, Michigan, and New York, determine gender identity participation on a case-by-case basis leaving open the possibility for exclusion.73 For students who are too young, who cannot afford or do not have access to medical treatment, or who simply have not chosen to express their identity through medical intervention, these policies create an almost insurmountable barrier to participation in interscholastic sports.74 Missouri, for example, has duplicated the guidelines of the NCAA, including the requirement that male-to-female transgender student athletes document least one year of testosterone-suppression treatments before participation in the sex-segregated team matching their gender identity.75 In Illinois, participation for a transgender student-athlete

69 Guidance for Massachusetts Public Schools Creating a Safe and Supportive School Environment, MASS. DEP’T OF ELEM. AND SECONDARY ED., https://docs.wixstatic.com/ugd/2bc3fc_447f7b8e8a44c835e855c51087a5a6d9.pdf (last visited Oct. 27, 2019). 70 See id. 71 Guidelines for Gender Identity Participation, CAL. INTERSCHOL. FED’N https://docs.wixstatic.com/ugd/2bc3fc_e30b26660b694953b58d97930aadd77a.pdf (last visited Oct. 27, 2019). The Gender Identity Eligibility Committee convenes when there is an appeal for a student to participate based on their gender identity, and the student must be heard at minimum 5 days before the first scheduled competition or as soon as is reasonable. The committee will be comprised of a minimum of three of the following persons one of whom must be from the physician or mental health profession category: A. Physician with experience in gender identity health care and the World Professional Association for Transgender Health (WPATH) Standards of Care. B. Psychiatrist, psychologist or licensed mental health professional familiar with the World Professional Association for Transgender Health (WPATH) Standards of Care. C. School administrator from a non- appealing school D. CIF staff member E. Advocate familiar with Gender Identity and Expression issues.” Id. 72 See High School Policies, supra note 66. 73 Id. 74 Chelsea Shrader, Uniform Rules: Addressing the Disparate Rules That Deny Student-Athletes The Opportunity To Participate In Sports According to Gender Identity, 51 U. RICH. L. REV. 637, 653 (Jan. 2017). 75 2013-2014 Official Handbook of the Missouri State High School Activities Association, MO. STATE HIGH SCH. ACTIVITIES ASS’N, 127 https://docs.wixstatic.com/ugd/2bc3fc_feb6053e027b4bcd98007e8ff272c29b.pdf (last visited Oct. 27, 2019).

244 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVI NO. 3 hinges on a combination of medical documentation, a statement from the student as to the advantages they would gain by being allowed to participate in the sport based on their gender identity, and a review and ruling by the Illinois High School Association which would allow or disallow the student to try out for their chosen sport according to the student’s gender identity.76 iii. Restrictive Policies or the Absence of a Policy Exclude Transgender Student-Athletes. The remaining states, such as Kentucky, Louisiana, and Texas, have either implemented restrictive policies which require students to have undergone gender confirmation surgery, require participation with the team that aligns with the sex assignment on the student’s birth certificate, or there is no policy in place, such as in Mississippi, Montana, and Tennessee, leaving each school to make its own policy.77 In Texas, the policy requires student participation in sports based on the assigned sex on their birth certificate, leaving only those transgender students who have gone through the expensive and difficult process of obtaining a court order to correct gender markers on their birth certificates the option of participating based on their gender identity.78 In Louisiana, the policy effectively excludes any transgender athlete from participating based on their gender identity.79 For those students whose gender identity conflicts with their birth certificate, the requirements are for a student to undergo “sex reassignment” surgery before puberty, or, if the surgery happens after puberty, the student cannot participate any sooner than two years after the surgery has taken place.80 The policy implements a requirement that contradicts all medical recommendations, which suggest that clinicians delay gender-affirming genital surgery until the patient is at least 18 years old, and would

76 See IHSA Handbook (2019-20), ILL. HIGH SCH. ASS’N, 121 (July 1, 2019), https://www.ihsa.org/documents/forms/current/IHSA_Policies.pdf (last visited Oct. 27, 2019). 77 See High School Policies, supra note 66; see also Stacey A. Michel, Not Quite a First Place Finish: An Argument That Recent Title IX Policy Clarification from the United States Department of Education Does Not Adequately Protect Transgender Interscholastic Athletes, 25 TUL. J.L. & SEXUALITY 145, 157 (2016) (states which require court order to change birth certificate necessitates costly legal assistance and creates barrier to transgender student-athlete participation per their gender identity). Id. 78 John Wright, Texas Districts Pass UIL Restriction on Trans Athletes, TEXAS OBSERVER (Feb. 25, 2019) https://www.texasobserver.org/trans-student-athlete-uil-discrimination (last visited Oct. 27, 2019). Cindy Boren, Transgender wrestler Mack Beggs wins second Texas state girls’ championship, THE WASH. POST (Feb. 25, 2018), https://www-washingtonpost-com.ezproxysuf.flo.org/news/early- lead/wp/2018/02/25/transgender-wrestler-mack-beggs-wins-second-texas-state-girls- championship/ (last visited Nov. 8, 2019). Female-to-male wrestler already undergoing hormone therapy was forced to compete in the girls’ category despite his objections due to Texas requirements, where he was undefeated and won two state championships. Id. 79 La. High Sch. Athletic Ass’n (LSHAA) Handbook, LSHAA.ORG 164, http://cdn.lhsaa.org/uploads/handbook/Position_Statements_and_Glossary.pdf (last visited Oct. 27, 2019). 80 Id. See also Policies and Procedures, in 2018-19 KHSAA Handbook 26 (2019) KY. HIGH SCH. ATHLETIC ASS’N https://khsaa.org/common_documents/handbook/policies/policies- transgenderpolicy.pdf (last visited Oct. 27, 2019). 2020 JOURNAL OF HEALTH & BIOMEDICAL LAW 245 preclude almost any high school student from meeting the two-year post-surgical requirement.81 II. CURRENT LEGAL BATTLES OF INCLUSION AND THE HEALTH EFFECT ON TRANSGENDER STUDENT- ATHLETES Exclusion of a student based on their gender identity has the capacity to do physical and mental harm that can last into adulthood, yet opponents are starting to push back on inclusionary policies with contrary arguments about fairness. This section examines some of the recent controversies and discusses how the outcomes of related cases over transgender use of bathrooms could guide courts when considering student- athletes. Finally, this section discusses how an upcoming Supreme Court decision could clarify the law’s interpretation of discrimination of a transgender person “on the basis of sex.” a. There Are Physical and Mental Harms Associated with the Exclusions of Transgender Student-Athletes. Inclusion of transgender student-athletes in public school sports teams that match the student’s gender identity is not only a matter of equal protection consistent with Title IX and Title VII, but also a healthcare issue.82 In April 2019, the Trevor Project reported that 54% of transgender and non-binary respondents to their youth survey seriously considered suicide, and 29% of transgender and non-binary youth respondents attempted suicide.83 This number skyrockets for transgender youths who have been subjected to conversion therapy that forces them to deny their true identities, with a shocking 57% of those respondents attempting suicide in the past year.84 Additionally, research shows that stigma and discrimination have long-lasting negative health consequences, including greater risk of post-traumatic stress disorder, depression, anxiety, suicidality and hypertension as adults.85

81 Endocrine Treatment of Gender-Dysphoric/Gender-Incongruent Persons: An Endocrine Society Clinical Practice Guideline, ENDOCRINE SOC’Y (Sept. 2017), https://www.endocrine.org/guidelines-and-clinical-practice/clinical-practice-guidelines/gender- dysphoria-gender-incongruence (last visited Oct. 27. 2019). 82 See Skinner-Thompson, supra note 39, at 272. 83 THE TREVOR PROJECT, National Survey on LGBTQ Youth Mental Health 2019, https://www.thetrevorproject.org/wp-content/uploads/2019/06/The-Trevor-Project-National- Survey-Results-2019.pdf, (last visited Oct. 19, 2019). The survey included 34,000 respondents, is the largest survey of LGBTQ youth mental health ever conducted, and demonstrates the extreme vulnerability of the transgender youth population in the United States. The Trevor Project is a national organization providing crisis intervention and suicide prevention services to lesbian, gay, bisexual, transgender, queer and questioning (LGBTQ) young people under 25. 84 Id. The report also found that 78% of transgender and non-binary youth reported being the subject of discrimination due to their gender identity, and 58% of transgender and non-binary youth were discouraged from using a bathroom that corresponds to their gender identity. Id. See also Sandy E. James et al., The Report of the 2015 U.S. Transgender Survey 123-35 NAT’L CTR. FOR TRANSGENDER EQUALITY (2016), https://www.transequality.org/sites/default/files/docs/USTS-Full-Report-FINAL.PDF (last visited Oct. 27, 2019) Reporting 77% of transgender students in grades K-12 experienced harassment by students, teachers or staff. 85 See supra note 8.

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By contrast, providing transgender students the opportunity to participate in sports is an antidote to the many health risks by contributing to their physical well-being, self-esteem, and mental health.86 Physically, participation in sports builds healthy bone and muscle; reduces the risk of developing heart disease, diabetes, and other chronic diseases; reduces the risk of obesity; and helps to develop lifelong habits of exercise with long-term benefits.87 Psychologically, sports participation can serve as a critical protective factor against adolescent suicide by helping to reduce the feelings of hopelessness and suicidal behavior, and contributing to a sense of belonging and greater social integration.88 Increased visibility and inclusion of transgender people has resulted in increased risk for violence and a greater need for legal protections.89 Denying the gender identity of a young person has the potential for great harm, both physical and psychological harm, which can last well into adulthood or even prevent their progress into adulthood by putting them at great risk of suicide.90 b. Opponents to Inclusion Use Contrary Arguments about Fairness in Competition Despite Lack of Evidence of Unfairness. On June 19, 2019, three cisgender high school girls who compete in girls’ track in Connecticut, filed a complaint with the U.S. Department of Education (“the Soule Complaint” or “the Complaint”) claiming that the participation of two transgender girls in Connecticut Interscholastic Athletic Conference (“CAIC”) track meets violates Title IX’s mandate to equal opportunity for both sexes.91 The Complaint reasoned the participation of the “boys” in girls’ events denies the “biological girls” opportunities to achieve public recognition, participate in higher level competitions, and attract the visibility of college recruiters with the hope of earning college scholarships.92 As the Connecticut state policy is one of inclusion, transgender student-athletes are permitted to participate on the sex-segregated team that aligns with their gender identity without any requirement of medical intervention.93 The Complaint claims that the CAIC’s policy

86 See Skinner-Thompson, supra note 39, at 297 (indicating participation in sports as protective factor against adolescent suicide). 87 See Suzanne le Menestrel & Daniel F. Perkins, An overview of how sports, out-of-school time, and youth well-being can and do intersect, NEW DIRECTIONS FOR YOUTH DEV., No. 115, 13-15 (2007) (noting that “[t]he most recent dietary guidelines for Americans advise that children and youth should be involved in at least sixty minutes of physical activity on all or most days of the week”). 88 Lindsay A. Taliaferro et al., High School Youth and Suicide Risk: Exploring Protection Afforded Through Physical Activity and Sport Participation, J. SCH. HEALTH, Vol.78, No. 10, 545, 551-52 (2008). Finding that involvement in sport confers unique psychosocial benefits that protect adolescents against suicidality beyond the physical activity, including social support and integration. Id. 89 Violence Against the Transgender Community in 2019, HUM. RTS. CAMPAIGN, https://www.hrc.org/resources/violence-against-the-transgender-community-in-2019 (last visited Nov. 30, 2019) (noting 26 deaths of transgender people due to fatal violence in 2018, 22 deaths in 2019); see also Rick Rojas & Vanessa Swales, 18 Transgender Killings This Year Raise Fears of an ‘Epidemic,’ THE N.Y. TIMES (Sept. 30, 2019) https://www.nytimes.com/2019/09/27/us/transgender-women-deaths.html (last visited Nov. 30, 2019). “…[A] rise in visibility has also stirred animosity and emboldened people to attack,” leading the American Medical Association to declare an “epidemic” in 2019 of violence against transgender people. Id. 90 See supra note 8. 91 See Soule Complaint, supra note 30 at 2. 92 Id. 93 See High School Policies, supra note 66. 2020 JOURNAL OF HEALTH & BIOMEDICAL LAW 247 effectively discriminates against girls by allowing boys to dominate their sex-segregated category and threatens to “reverse the gains for girls and women that Title IX has achieved since 1972.”94 This Complaint comes on the heels of a ruling at the Swiss Supreme Court barring elite South African middle-distance runner Caster Semenya (“Semenya”) from international races between 400 meters and a mile unless she undergoes testosterone suppression treatment to bring her naturally elevated testosterone levels in closer alignment with those of a typical cisgender woman.95 Track’s governing bodies believe those distances, which combine speed and endurance, are the races in which athletes with elevated testosterone have an unfair advantage in muscle strength and oxygen-carrying capacity.96 Semenya, who has said little about her rare biological traits, is generally understood to be “intersex” since information about her required sex testing had been leaked and has been under scrutiny since she debuted on the international track scene in 2009.97 Semenya has called the International Associations of Athletics Federations (“I.A.A.F.”) rules, requiring her to take testosterone suppression drugs in order to compete against women in her preferred distances, “medically unnecessary as well as ‘discriminatory, irrational, unjustifiable,’ and a violation of the rules of sport and universally recognized human rights.”98 Semenya has refused to comply with the requirements forced upon her by the I.A.A.F.99 Both the Soule Complaint and Semenya’s case inform the law as it pertains to interscholastic transgender participation as the person presents naturally, without any medical restrictions.100 Semenya’s experience at the elite level mirrors those

94 See Soule Complaint, supra note 30. The complaint identifies over 50 separate times in competitions since 2017 that specific girls have been denied opportunities to advance to higher- level competition in CIAC-sponsored events because of the participation of two transgender girls. Id. at 42. 95 Gina Kolata, Track and Field Tries to Understand New Rules for Intersex Athletes, THE N.Y. TIMES (May 8, 2019), https://www.nytimes.com/2019/05/08/sports/semenya-xy-chromosomes.html (last visited Oct. 27, 2019). 96 Victor Mather & Jeré Longman, Ruling Leaves Caster Semenya With Few Good Options, THE N.Y. TIMES (July 31, 2019), https://www.nytimes.com/2019/07/31/sports/caster-semenya.html (last visited Oct. 27, 2019). 97 Jeré Longman, Caster Semenya Loses Case to Compete as a Woman in All Races, THE N.Y. TIMES (May 1, 2019), https://www.nytimes.com/2019/05/01/sports/caster-semenya-loses.html (last visited Oct. 27, 2019). 98 See id. 99 Caster Semenya starts 'new journey' after joining football team, THE GUARDIAN (Sept. 6, 2019), https://www.theguardian.com/sport/2019/sep/06/caster-semenya-starts-new-journey-after- joining-football-team (last viewed Oct. 27, 2019). While Semenya is appealing the decision, she has joined a professional soccer [football] club in South Africa and is training to compete in the 2020 season. Id. 100 Catherine Thorbeck, Transgender athletes speak out as parents petition to change policy that allows them to compete as girls, ABC News (June 22, 2018), https://abcnews.go.com/GMA/News/transgender- athletes-speak-parents-petition-change-policy-compete/story?id=56071191 (last visited Nov. 3, 2019). While the transgender students who are the target of the Soule Complaint had transitioned socially, they were at the beginning stages of medical transition at the time the complaint was filed. Medical transition is not required under the inclusionary rules of the CAIC. Id. While many media outlets have named the two minor transgender students, this Note intentionally does not because they are targets of the complaint and did not choose to be named.

248 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVI NO. 3 interscholastic policies that require transgender students to medically alter their bodies in order to participate, but the interscholastic students are not professionals competing for their careers and able to make independent choices about their medical care, they are children who simply wish to fully participate in school life as any other student. “[I]dentifying as transgender is not done to gain any cultural reward or personal athletic advantage. Rather, trans[sexual] individuals are seeking personal harmony between body and mind.”101 Fears of men transitioning to women for the sole purpose of gaining advantage in sport have been unfounded, and research into the advantage that transgender women possess is athletics is sparse.102 Despite thirty years of transgender athletes documented participation in women’s sports, they have yet to take over and dominate the medals stands.103 What’s more, young people develop at different rates, and high-school sports already accommodate students at vastly different levels of development and natural talent.104 A more appropriate comparison for the cisgender students in the Soule Complaint would be the frustration of an athlete who competes in the same field where there is another talented athlete, such as swimmer Michael Phelps, gymnast Simone Biles, or tennis player Serena Williams.105 Each of these athletes has physical attributes,

101 See Lucas-Carr & Krane, supra note 10, at 537. 102 Yannis Pitsiladis et al, Beyond Fairness: The Biology of Inclusion for Transgender and Intersex Athletes, Current Sports Medicine Reports, AM. C. OF SPORTS MED., VOL. 15, NO. 6 386, 386 (2016). While some anatomical advantages are obvious in certain sports, such as a basketball player who is seven feet tall, cross sectional studies of male-to-female transgender athletes post-hormone therapy reports a loss of muscle mass, increase in fat mass, and a decrease in bone mineral density, indicating that “normalizing” the levels of testosterone removes the vast majority of the advantages of having been male. Id.; see also Sara Rigby, Can transgender athletes be fairly integrated into women’s sports? SCIENCEFOCUS.COM (March 29, 2019) https://www.sciencefocus.com/the- human-body/can-transgender-athletes-be-fairly-integrated-into-womens-sports/ (last visited Nov. 8, 2019). Indicating more studies need to be done to determine if male-to-female transgender athletes retain any advantage after transitioning through testosterone suppression, as testosterone is only one factor in athletic performance. Id., see also Jones et al., supra note 1, at 701. “Currently, there is no direct or consistent research suggesting transgender female individuals (or male individuals) have an athletic advantage at any state of their transition (e.g. cross-sex hormones, gender-confirming surgery) and, therefore, competitive sport policies that place restrictions on transgender people need to be considered and potentially revised.” Id. 103 Parker Malloy, Caster Semenya, and the myth of the uneven playing field, COLUMBIA JOURNALISM REV. (May 8, 2019), https://www.cjr.org/criticism/caster-semenya.php (last visited Nov. 6, 2017). The press focuses on all the wins of transgender athletes, but ignores the losses. For example, Renee Richards never made it past the third round in her five appearances at the U.S. Open. More recently, trans cyclist Rachel McKinnon noted that the competitor who complains about “fairness” the most has beaten McKinnon in 11 out of 13 of the most recent head-to-head matchups. McKinnon responded “This is what the double-bind for trans women athletes looks like: when we win, it’s because we’re transgender and it’s unfair; when we lose, no one notices (and it’s because we’re just not that good anyway). Even when it’s the same racer. That’s what transphobia looks like.” Id. 104 See Skinner-Thompson, supra note 39, at 287 (citing Hoover v. Meiklejohn, 430 F. Supp. 164, 166 (Co. 1977) (discussing the range of physical differences within each sex even after puberty)). Id. 105 Neil Greenburg, Michael Phelps and the 27 Olympic swimmers whose dreams he has crushed, THE WASH. POST (Aug. 11, 2016), https://www.chicagotribune.com/sports/olympics/ct-michael- phelps-rio-olympics-20160811-story.html (last visited Oct. 27, 2017). Michael Phelps, an American swimmer, dominated individual Olympic events such that there would be 10 different gold medal winners in the individual events and 16 new medalists who previously missed the podium in prior Olympics had he not competed. Id.; see also Colleen DeBellefonds, Why Michael 2020 JOURNAL OF HEALTH & BIOMEDICAL LAW 249 sophisticated training regimens and coaching to harness their natural talents, which may seem unfair to those athletes who might otherwise be eligible for medals. These phenoms are rare, and, likewise, there is no evidence that transgender girls’ participation on girls’ teams are significant enough to provide a logical or legal basis to justify the wholesale exclusion of transgender athletes from participating on the teams that align with the students’ gender identity.106 c. Recent Cases Concerning Transgender Use of Bathrooms Will Inform Future Action for Transgender Student-Athletes. Legal challenges across the country to the use of bathroom facilities that align with a person’s gender identity provide a window into some of the arguments that are applicable to transgender student athletes. In the 2017 Legislative Session, eighteen states proposed legislation to restrict transgender access to restrooms, locker rooms, and sex- segregated facilities on the basis of a person’s sex assigned at birth.107 The legislation in fourteen of those states specifically targeted limiting the rights of transgender students in schools as a direct result of the Trump administration’s repeal of 2016 DCL guidance to protect discrimination against transgender people in schools.108 In total, twenty-seven

Phelps Has the Perfect Body for Swimming, BIOGRAPHY.COM (June 26, 2019), https://www.biography.com/news/michael-phelp-perfect-body-swimming (last visited Oct. 27, 2019). Describing that Phelps’ double-joined elbows, ankles that bend 15% more than his competitors, longer than average wingspan, and his body’s unusually low levels of lactic acid generation give him a physical advantage that makes him uniquely suited to win in the water; and see Meredith Cash, Simone Biles is the most dominant athlete on the planet, and now she's primed to become the most accomplished Olympian of all time, BUS. INSIDER (Oct. 14, 2019), https://www.businessinsider.com/simone-biles-dominates-worlds-tokyo-2020-olympics-2019-10 (last visited Nov. 30, 2019). 106 See Skinner-Thompson, supra note 39, at 279; see also “[I]n Att’y Gen. v. Mass. Interscholastic Athletic Ass’n, the Massachusetts Supreme Judicial Court held that a state statute that prohibited boys from participating on girls’ athletic teams violated the Massachusetts Equal Rights Amendment. The court held that the physical differences between males and females are “not so clear or uniform as to justify a rule in which sex is” an absolute bar to male participation on female teams. Elaborating, the court explained that:

The general male athletic superiority based on physical features is challenged by the development in increasing numbers of female athletes whose abilities exceed those of most men, and in some cases approach those of the most talented men. Coordination, concentration, strategic acumen, and technique or form (capabilities of both sexes) intermix with strength and speed (where males have some biologic advantages) to produce athletic results. Classification on strict grounds of sex, without reference to actual skill differentials in particular sports, would merely echo “archaic and overbroad generalizations.”

Id. at 278. 107 Joellen Kralik, "Bathroom Bill" Legislative Tracking, 2017 State Legislation, NAT’L CONF. OF STATE LEG. (Oct. 24, 2019), http://www.ncsl.org/research/education/-bathroom-bill-legislative- tracking635951130.aspx (last visited Nov. 2, 2019). 108 Id. States with bills intended to restrict transgender students at schools include Arkansas, Illinois, Kansas, Kentucky, Minnesota, Missouri, Montana, New Jersey, New York, Oklahoma, South Dakota, Tennessee, Texas, and Virginia. Id.

250 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVI NO. 3 bills were introduced in 2017, and all but one failed to be enacted.109 Only North Carolina succeeded in passing a bill, House Bill 2 (“HB2”), which restricted transgender access to sex-segregated facilities.110 Although it was repealed shortly thereafter, it was replaced by a bill that put a temporary halt on local governments passing nondiscrimination ordinances until 2020 and permanently blocked local legal protections allowing transgender people to use restrooms aligned with their gender identity.111 By contrast, twenty-two states have enacted legislation that specifically protects the rights of transgender people in public accommodations, including bathrooms, by prohibiting discrimination based specifically on gender identity.112 For example, in July 2019, New Hampshire passed a statute which requires school districts to design local policies to prevent and respond to such discrimination, and makes it possible for local school districts to be sued for discriminating against transgender students.113 Additionally, twenty-three states prohibit employment discrimination based on gender identity, and some states include such provisions that indicate a person’s gender identity must be “sincerely held” and that the person is not asserting gender-related identity for any “improper purposes.”114 There is no federal law which specifically prohibits discrimination based on gender identity, but attempts have been made by federal agencies and Congress to clarify protections for transgender people. In May 2019 the House of Representatives passed the Equality Act, which amends Title VII of the Civil Rights Act of 1964 to replace the word

109 Id. 110 See N.C. Gen. Stat. §143-760 (2017) (repealed 2019). 111 See Daniella Silva, HB2 Repeal: North Carolina Overturns Controversial 'Bathroom Bill', NBCNEWS.COM (March 30, 2017), https://www.nbcnews.com/news/us-news/hb2-repeal-north-carolina-legislature-votes- overturn-controversial-bathroom-bill-n740546 (last visited Nov. 2, 2019). After signing the repeal of the law, Governor Roy Cooper indicated HB2 was “a dark cloud hanging over our great state" and added "It has stained our reputation, it has discriminated against our people and it has caused great economic harm in many of our communities." Id.; but see The Observer editorial board, HB2 repeal: Cooper turns back on LGBT community, CHARLOTTE OBSERVER (March 31, 2017), https://www.charlotteobserver.com/opinion/editorials/article141667999.html (last visited Nov. 2, 2019); and see Brook Sopelsa, NCAA Lifts Ban on North Carolina After HB2 'Bathroom Bill' Repeal, NBCNEWS.COM (Apr. 7, 2017), https://www.nbcnews.com/feature/nbc-out/ncaa-lifts-ban- north-carolina-after-hb2-bathroom-bill-repeal-n742446 (last visited Nov. 10, 2019). Indicating the new bill, HB142, “bans cities from enacting their own anti-discrimination protections for LGBTQ people until 2020 and permanently blocks local legal protections for transgender people in restrooms.” Id. 112 State Public Accommodation Laws, NAT’L CONF. OF STATE LEGIS. (Apr. 4, 2019), https://www.ncsl.org/research/civil-and-criminal-justice/state-public-accommodation- laws.aspx#_ftn5 (last visited Jan. 4, 2020). This list does not include New Hampshire, which passed legislation in July, 2019. See infra note 113. 113Roberta Baker, Trans policies highlight rifts over gender, THE LACONIA SUN (Jan. 2, 2020), https://www.laconiadailysun.com/news/local/trans-policies-highlight-rift-over- gender/article_b2666076-2da1-11ea-91ef-e35de96b2c80.html (last visited Jan. 4 2020). 114 Sex and Gender Discrimination in the Workplace, NAT’L CONF. OF STATE LEGIS. (March 28, 2019), https://www.ncsl.org/research/labor-and-employment/-gender-and-sex-discrimination.aspx (last visited Jan. 4, 2020). 2020 JOURNAL OF HEALTH & BIOMEDICAL LAW 251

“sex” with “sex (including sexual orientation and gender identity).”115 Additionally, the Equal Employment Opportunity Commission (“EEOC”), the Department of Labor (“DOL”), the Occupational Safety and Health Administration (“OSHA”) and the Office of Personnel Management (“OPM”) independently issued guidance clarifying the rights of transgender federal employee rights, yet all of these recommendations have been revoked under the Trump Administration.116 In late 2019, the Department of Health and Human Services (“DHHS”) Office of Civil Rights issued a memo that defines “sex” as “a person’s status as a male or female based on immutable biological traits identifiable by or before birth” and requires verification of sex assigned at birth through a birth certificate or genetic testing.117 Despite the revocation of the 2016 DCL indicating significant guidance for inclusion of transgender students, the federal courts have continued on a steady path of protecting the rights of transgender students in schools.118 In 2017 the Seventh Circuit considered the case of transgender student Ash Whitaker, a high school senior who had been using the male restroom per his gender identity without incident until a teacher observed him washing his hands.119 The school then insisted that Ash use only the girls restroom or a gender-neutral bathroom to which only he had a key and was quite a distance from his classrooms, causing him to be late to class.120 Feeling singled out, Ash restricted his water intake to avoid using the bathroom during the day, which caused him to suffer fainting, dizziness, stress-related migraines, depression, and anxiety.121 He even

115 See Equality Act, H.R.5, 116th Cong. (2019) (An Act to prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes); see also Eric Bachman, What Is The Equality Act And What Will Happen If It Becomes A Law, FORBES.COM (May 30, 2019), https://www.forbes.com/sites/ericbachman/2019/05/30/what-is-the-equality-act-and-what- will-happen-if-it-becomes-a-law/#3dda434b5fe4 (last visited Nov. 10, 2019). 116 See Trump Administration Civil and Human Rights Rollbacks, supra note 51. 117 Id.; see also Erica L. Green et al., ‘Transgender’ Could Be Defined Out of Existence Under The Trump Administration, N.Y. TIMES (Oct 21, 2018) (last visited Nov. 10, 2019). 118 See Trump Administration Civil and Human Rights Rollbacks, supra note 51; see also Allison Fetter- Harrott et al. Sex Discrimination in Schools: Has Change in Administration Meant Change in Protections for Transgender Students and Educators?, 44 DAYTON L. REV. 455, 471-72 (2019). Since the repeal of the 2016 DCL, there have been ten lawsuits decided on the issue of transgender bathroom use in K-12 schools, another three lawsuits filed by cisgender students who claim their privacy was violated when having to share a bathroom with a transgender student. All of the transgender student lawsuits have resulted in favorable outcomes for them, while all of the cisgender motions have failed to restrict inclusive bathroom access. Id. at 473; but see Wittmer v. Phillips 66 Co., 915 F.3d at 330 (declining to follow courts that expanded definition of “sex’ to sexual orientation or gender identity); Zarda v. Altitude Express, Inc., 883 F.3d at 107-108 (departing from prior precedent finding Title VII prohibits sexual orientation discrimination); Etsitty v. Utah Transit Auth., 502 F.3d at 1221, 1224 (declining to recognize discrimination for transgender classification as sex discrimination). 119 See Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d at 1041. The seventh circuit upheld a grant of preliminary injunctive relief under Title IX where the school denied a transgender boy access to the boy’s restroom. “[a] policy that requires an individual to use a bathroom that does not confirm with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX” and subjects transgender students to “different rules, sanctions, and treatment than non-transgender students, in violation of Title IX.” Id. at 1049-50. 120 Id. at 1042 121 Id.; see also supra note 8.

252 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVI NO. 3 contemplated suicide.122 The court rejected the school’s claim that Ash’s mere presence in the bathroom infringed on the privacy of other students, indicating it was based on “sheer conjecture and abstraction” after the school presented no evidence that a single student had complained to the school and ignored the practical reality of how Ash used the bathroom: he entered a stall and closed the door.123 The court also affirmed that the school violated Ash’s rights under Title IX and Equal Protection Clause by relying on Title VII cases to interpret the meaning of “sex” and held the school’s policy subjected Ash, as a transgender student, to different rules, sanctions, and treatment than non- transgender students by forcing him to use a gender-neutral restroom.124 Finally, the court held that it would cause Ash irreparable harm to deny him access to the male restroom, which was necessary for both his transition and his emotional well-being.125 In in another jurisdiction, a case with facts similar to Whitaker resulted in a consistent outcome. A federal district court in Florida granted a transgender student’s motion for preliminary injunction based upon violation of the Equal Protection Clause and Title IX.126 Drew Adams, a transgender boy was restricted from using the boys bathroom at school because the school defined “boy” and “girl” as “traditionally defined based on biological traits,” and based on Drew’s birth certificate, insisted that he use the girls restroom.127 The court looked to decisions under Title VII for guidance on interpreting the meaning of the ambiguous term “sex,” and relied heavily on the Whitaker, Grimm, Boyertown and Price Waterhouse decisions to conclude that the meaning of “sex” includes “gender identity” for purposes of its application to transgender students.128 The court also found that the school had a responsibility to provide “proper attention to [the] health, safety, and other matters relating to the welfare of students.”129 The court added that Drew suffered emotional damage, stigma, and shame from not being permitted to use the boys’ restroom at school, and he was awarded compensatory damages for emotional distress.130 The Supreme Court granted certiorari in the case of Gavin Grimm v. Gloucester County School Board, but weeks before it was set to hear the case in early 2017, the Departments of Justice and Education rescinded the DCL guidance on transgender student rights in schools.131 The Court subsequently remanded the case back to the

122 Id. at 1046. 123 Id. at 1052. 124 Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034at 1323-24. 125 Id. at 1045. 126 See Adams v. Sch. Bd. 318 F. Supp. 3d 1293 (M.D. Fla. 2018). 127 Id. at 1302. 128 Id. at 1324-25. See also Scott Skinner-Thompson, Federal Courts Are Standing Up for the Sanctity of Transgender Lives, SLATE (June 21. 2018) https://slate.com/human-interest/2018/06/trans-rights- federal-courts-are-protecting-transgender-americans-against-the-trump-administrations- discrimination.html (last visited Dec 1, 2019). Citing Doe v. Boyertown Area Sch. Dist., 897 F.3d 518 (2018) cert. denied, where the court concluded transgender use of bathrooms aligned with gender identity did not harm cisgender students, the school’s interest in protecting transgender students from marginalization and exclusion outweighed any privacy concerns of cisgender students, and the policy benefitted all students by promoting a spirit of inclusivity, acceptance, and tolerance. Id. 129 See Adams, 318 F. Supp. 3d at 1301, 1327. 130 Id. 131 See Trump Administration Civil and Human Rights Rollbacks, supra note 51. 2020 JOURNAL OF HEALTH & BIOMEDICAL LAW 253

Fourth Circuit for review.132 Gavin Grimm was a transgender student who transitioned from female to male after a diagnosis of gender dysphoria in 2014 and began to identify as male at school in his sophomore year.133 The school required Gavin to use a gender- neutral restroom that was far from his classroom and made him feel “stigmatized and isolated” to the point where he avoided using the restrooms at school.134 Consequently, Gavin suffered harm because he avoided using the restroom so frequently he developed painful urinary tract infections that distracted him from his class work.135 His mental distress was so severe that he was hospitalized with suicidal thoughts.136 Grimm filed a claim of discrimination on the basis of transgender status in violation of Title IX and the Equal Protection Clause. Upon remand by the Supreme Court, the Fourth Circuit concluded the school discriminated against Gavin Grimm on the basis of his transgender status in violation of Title IX and the Equal Protection Clause.137 Since Gavin has graduated from the school, and his injunctive relief to use the bathroom of choice is moot, the court granted his motions for a permanent injunction to update his school records to reflect his gender identity.138 The court concluded by quoting from Adams, that “parents, teachers and administrators share a solemn obligation to guard the well-being of the children in their charge,” and from Nelson Mandela, that “[h]istory will judge us by the difference we make in the everyday lives of children.”139 d. Upcoming Supreme Court Decisions in a Title VII Case Will Influence Future Inclusion of Transgender Student-Athletes. In order to resolve circuit splits defining “sex” in Title VII cases, the Supreme Court heard arguments on three cases involving gay and transgender rights under Title VII barring workplace discrimination on the basis of sex on October 8, 2019.140 R.G. & G.R. Harris Funeral Homes, Inc., v. Equal Employment Opportunity Commission and Aimee Stephens is a wrongful termination case under Title VII, in which a transgender female was fired from her long standing job at a funeral home after she told the owner that she would be transitioning to a female.141 The owner fired her because, in his own words, "he was no longer going to represent himself as a man. He wanted to dress as a woman." In the reply brief for respondent Aimee Stephens, the attorneys indicate that a ruling for Ms. Stephens “would have no implications for how schools, athletic associations, and family law integrate transgender people.”142 Notwithstanding that assertion, in oral arguments the justices focused on issues that went beyond the scope of Title VII.143 Through their

132 Id. 133 See Grimm v. Gloucester Cnty. Sch. Bd., Civ-No. 4:15cv54 (E.D. Vir. 2019). 134 Id. at 5. 135 Id. 136 Id. at 20. 137 Id. at 19. 138 Grimm v. Gloucester Cnty. Sch. Bd., Civ-No. 4:15cv54 (E.D. Vir. 2019). 139 Id. at 26. 140 See Bostock v. Clayton Cnty., Ga. 139 S. Ct. 1599 (2019), cert. granted; R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, et al., 139 S. Ct. 1599 (2019) cert. granted; Zarda v. Altitude Express, Inc., 139 S. Ct. 1599 (2019) cert. granted. 141 EEOC v. R.G., 884 F.3d 560, 569 (6th Cir. 2018). 142 Reply brief for respondent Aimee Stephens, R.G. & G.R. Harris Funeral Homes, Inc., v. EEOC et al., 139 S.Ct. 1599 (2019) (No. 18-107) https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18- 107.html (last visited Jan. 6, 2020). 143 See supra note 11.

254 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVI NO. 3 questions and comments Justices Alito, Gorsuch, Sotomayor, Ginsburg, and Breyer considered the implications and practical effects of a ruling on bathroom use, locker rooms, and dress codes.144 Justice Sotomayor posed the question “at what point does a court continue to permit invidious discrimination against groups that, where we have a difference of opinion, we believe the language of the statute is clear?”145 All of the questioning justices focused on transgender use of single-sex facilities, participation in sports on college and high school teams, and the implications that could reverberate as a result of their ruling in this Title VII case.146 In considering the Harris case, the Supreme Court may turn to Obergefell v. Hodges and U.S. v. Virginia to further inform the right to an individual’s identity expression should not be decided by stereotypes and fears.147 In Obergefell v. Hodges, which overturned state bans on same-sex marriage, the Court found “the Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”148 While this case was decided in the context of sexual intimacy, the language adds to the imprimatur of a growing body of Supreme Court jurisprudence stemming from Price Waterhouse, which decided treating someone differently based on gender stereotypes was discrimination. United States v. Virginia challenged the exclusion of women from a state-sponsored, all-male military college, and the Court acknowledged that the differences between men and women were not so extreme to justify the wholesale exclusion of women from the Virginia Military Institute (“VMI”).149 The VMI Court further determined that equal protection principles, “as applied to gender classifications, mean state actors may not rely on ‘overbroad’ generalizations to make ‘judgments about people that are likely to . . . perpetuate historical patterns of discrimination.’”150 III. ACHIEVING INCLUSION FOR THE HEALTH BENEFIT OF ALL TRANSGENDER STUDENT-ATHLETES Exclusionary policies for transgender student-athlete participation in school sports pose a severe health risk to a vulnerable population and states have an obligation to protect the health and safety of all students by enacting non-discriminating statutes. The fear of an army of transgender students taking over girls’ sports is unfounded, inclusion will not result in a great social upheaval, and such fears should not drive policy or law. While more can and should be done to educate and encourage states to implement

144 Id.; see also Amy Howe, Argument analysis: Justices divided on federal protections for LGBT employees SCOTUSBLOG.COM (Oct. 8, 2019), https://www.scotusblog.com/2019/10/argument-analysis- justices-divided-on-federal-protections-for-lgbt-employees/ (last visited Nov. 2, 2019). 145 See supra note 11, at 60; see also Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984). Holding state law to compel the Jaycees to accept women did not infringe on Jaycees right to association, the Supreme Court also recognized “invidious discrimination in the distribution of publicly available goods, services and other advantages cause[s] unique evils.” 146 See supra note 11. 147 Scott Skinner-Thompson, How Obergefell Could Help Transgender Rights, Slate (June 26, 2015) https://slate.com/human-interest/2015/06/obergefell-and-trans-rights-the-supreme-courts- endorsement-of-identity-expression-could-help-trans-activism.html (last visited Dec. 1, 2019). 148 See Obergefell v. Hodges, 574 U.S. 1118 at 2593 (2015). 149 See United States v. Virginia, 518 U.S. 515, 543 (1996). 150 Id. 2020 JOURNAL OF HEALTH & BIOMEDICAL LAW 255 inclusionary legislation, ultimately only continued litigation will ensure the protections for some the most vulnerable students in the public-school system. a. States Should Implement Inclusionary Policies Because Any Other Policies Threaten the Health, Safety and Well-Being of the Transgender Student- Athlete Transgender student-athletes in the K-12 environment should have the ability to participate in the sport that aligns with their gender identity, regardless of their stage of medical transition. As some children who experience gender dysphoria reach puberty, their changing bodies and hormones amplify the feelings of dysphoria as their bodies further diverge from the child’s gender identity.151 Current medical recommendations advise against prescribing hormone treatments to children younger than sixteen years old and generally children should not be given puberty suppression treatment before they start showing signs of puberty.152 Under no circumstances is it appropriate to initiate gender confirmation surgery before the legal age of consent, as these treatments are irreversible.153 Extreme policies requiring medical intervention for transgender student athletes should be prohibited because they not only exclude many, if not most, transgender students in K-12 schools, but threaten to endanger their health. Only twenty states have inclusive policies which enable transgender student-athletes to participate in sex- segregated sports based on their gender identities without having to undergo any medical treatments.154 The remaining thirty states require some medical intervention, including some states which require one or two years of hormone therapy and other states such as Louisiana which require surgery even prior to puberty contradicting all medical recommendations.155 At thirteen and fourteen years old, some young high-school students may not yet have started showing signs of puberty.156 These student cannot comply with restrictive school policies requiring medical intervention and may not be eligible to participate according to their gender identity until junior year, if they undergo these medical treatments which may or may not be appropriate for them as an individual.157 Extreme policies requiring surgical treatments have been rejected by the International Olympic Committee (“IOC”), arguably the pinnacle of competitive sport, where the success of elite athletes can garner not only worldwide renown, but millions of dollars in sponsorship and prize money.158 The IOC determined that surgical intervention

151 See supra note 8, at 10. 152 See Endocrine Treatment of Gender-Dysphoric/Gender-Incongruent Persons: An Endocrine Society Clinical Practice Guideline, supra note 81. At sixteen, the child will have a better understanding and ability to consent, and the fully reversible treatment of puberty blockers will give the adolescent additional time to decide whether hormone treatment to masculinize or feminize the body is appropriate. Id. 153 Id. 154 See High School Policies, supra note 66. 155 Id. 156Pubertal Development, AMERICAN ACADEMY OF PEDIATRICS (July 1, 2016), https://pedsinreview.aappublications.org/content/37/7/292 On the basis of large observational studies and consensus, the normal time for girls to begin puberty is between 8 and 13 years and for boys is between 9 and 14 years. Id. 157 See supra note 20. 158 See also EN-IOC-CIOC Consensus Meeting on Sex Reassignment and Hyperandrogenism, INT’L OLYMPIC COMM.,

256 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVI NO. 3 is “not necessary to preserve fair competition and may be inconsistent with developing legislation and notions of human rights.”159 Policies that require medical intervention also exclude low income students who, depending on their health coverage, may not have access to or be able to afford the high cost of specialized medical treatment, which can run into the hundreds of thousands of dollars even with health care.160 Restrictive policies cause harm by exacerbating the risk for “anxiety and depression, low self-esteem, engaging in self-injurious behaviors, suicide, substance use, homelessness, and eating disorders, among other adverse outcomes” faced by transgender youth.161 Forcing a transgender youth to participate based on the sex assigned at birth would logically mean that student would be restricted to the locker room and restrooms of their birth gender as well. Studies have shown that many transgender youth will avoid using the “wrong” restroom, which can lead to medical consequences such as urinary tract infections and constipation, which put the student at risk of more serious health issues such as blood in the urine, chronic kidney disease, stones in the kidney, bladder or urethra and more.162 By contrast, there is no evidence of physical or mental harm to other children and adolescents when a transgender student uses sex-segregated facilities that align with their gender identity.163 For those students who may have transitioned prior to attending a particular school, these exclusionary policies could forcibly “out” those students to their peers, putting them at greater risk of harassment and robbing them of their personal choice regarding disclosure of their transgender status.164 What’s more, courts have repeatedly rejected the claims of harm brought by cisgender students challenging school restroom and locker room polices that allow transgender students use based on their gender identity.165 Inclusionary transgender student-athlete policies would not result in any “massive social upheaval,” a concern expressed by Justice Gorsuch, in that inclusionary policies would benefit a minority of the already small percentage of the U.S. population that identifies as transgender.166 By contrast, the risk of harm to that small fraction of the population is high and severe.167 High schools are already accommodating a large range of physical, emotional and skill development among student athletes, and the inclusion of transgender students is yet another variation on an already diverse student population.168 Exclusionary policies that force transgender students-athletes to compete in the sex- segregated sport of their sex assigned at birth require them to live one facet of their lives http://www.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015- 11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf (last visited Nov. 6, 2019). 159 See id. 160 See Lucas-Carr & Krane, supra note 21. 161 See id. 162 See supra note 8, at 24. 163 Id. 164 Id. 165 Id; see also Skinner-Thompson, supra note128. 166 See A.R. Herman, et al., supra note 6 (identifying only .6% of the U.S. population identifies as transgender). 167 See supra note 84 (indicating 54% of transgender and non-binary youth seriously consider suicide). 168 See Skinner-Thompson, supra note 39, at 276 (stating significant overlap between range of size and strength of [K-12 students]...making it likely that an individual transgender student would fit within the range of other team members and competitors). 2020 JOURNAL OF HEALTH & BIOMEDICAL LAW 257 in contradiction with their gender identity, which disrupts the medically recommended treatment plans that indicate all aspects of the individual’s life should correspond with the gender with which they identify.169 Restrictive and exclusionary policies deny transgender student-athletes their Title IX rights of equal access to educational opportunities and participation in federally funded activities because of their gender identity. In order to prevail in a Title IX case, the plaintiff must prove beyond a preponderance of the evidence that rights were violated, and if that is proven, the plaintiff must prove how the violation caused harm.170 Adams, Whitaker and Grimm courts all found the students’ rights were violated beyond a preponderance of evidence because the physical and emotional harm done to these students by restricting their use of the restrooms that aligned with their gender identity was not outweighed by the interests of the school.171 The courts reasoned that the schools had a responsibility and an obligation to provide for the health, welfare, and safety of these students, and forcing students to deny their gender identity “punishes that individual for his or her gender non-conformance.”172 These exclusions were based solely on their gender non-conformity, which, under the interpretations and guidance of extensive case law from Title VII, is discrimination on the basis of sex.173 A waiting period of one year or two years after starting hormone therapy to suppress testosterone in the case of a male- to-female student-athlete or to raise the levels of testosterone in a female-to-male student- athlete could eliminate the opportunity for a student to participate in high school athletics altogether, if they follow the medically recommended guidelines of starting hormone therapy after age sixteen.174 In the absence of a federal law that treats Title IX discriminations based on gender identity as “sex” discrimination, states should craft statutes that allow transgender student-athletes to compete in the sex-segregated sport that aligns with their gender identity regardless of their stage of transition, for the health and well-being of the student-athlete. Inclusive legislation should include provisions, such as those provided in the State of Washington and other states, which allow transgender student-athletes and any student who desires additional privacy, regardless of the underlying reason, with “a reasonable alternative changing area” such as a privacy curtain or changing stall.175 b. Fear of Transgender Students “Taking Over” Girls’ Sports Is Unfounded And Hypothetical Fears Should Not Drive Policy. The Soule Complaint to the Department of Education encapsulates the fear that is at the root of the resistance to inclusion of transgender student-athletes. The Complaint claims the transgender students prevented the cisgender students-athletes from achieving a higher level of competition, denied college coaches the chance to see them compete and thus stole away their opportunities for college level athletic scholarships, but these

169 See supra note 8 170 See Title IX, supra note 34. 171 See Trump Administration Civil and Human Rights Rollbacks, supra notes 51, at 123, 130. 172 See Trump Administration Civil and Human Rights Rollbacks, supra notes 51, at 1049; 123; 130. 173 See id. 174 See Endocrine Treatment of Gender-Dysphoric/Gender-Incongruent Persons: An Endocrine Society Clinical Practice Guideline, supra note 81. 175 Brief for the States of New York, et al. as Amici Curiae Supporting Plaintiff-Appellee at 23, Adams v. Sch. Bd. of St. Johns Cnty., Fla. 318 F. Supp. 3d 1293 (M.D. Fla. 2018) (No. 18-13592).

258 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVI NO. 3 hypothetical harms do not override the real physical and emotional harm that exclusion has been proven to inflict on transgender students.176 The transgender students referenced in the Soule Complaint had socially transitioned and were in the early stages of medically transitioning through hormone therapy, as is medically advised for minors in the process of undergoing puberty.177 Scientific findings have indicated that after 6 to 12 months of hormone replacement therapy for a male-to-female transgender woman, the “normalizing” levels of these hormones removed the vast majority of benefits of having been male.178 In the only scientific study conducted focused specifically on athletes who have undergone a transition, race times in male-to-female transgender runners who had competed in the same distances in both genders found they placed similarly in their age groups when they competed as women as they did when competing as men, indicating they were equally, but no more, competitive.179 While some advantages may be obvious and unaffected by a medical transition, such as height in a basketball player, those same or similar characteristics may be a disadvantage in another sport, for example, gymnastics.180 Despite the NCAA inclusive transgender participation guidance in place since 2003 and the IOC’s inclusive policies, the medals stands have not been dominated by transgender women, in fact there were no openly transgender athletes participating in the 2016 Olympic Games in Rio de Janeiro.181 In youths, physical differences between males and females are not significant enough to determine that a transgender female would inevitably prevail against cisgender female athletes, and these concerns do not outweigh the benefits of permitting transgender student-athletes from participating on a non-discriminatory basis.182 While an adolescent at the early stages of medical transition in a male-to-female transgender student-athlete may experience a temporary benefit that would “normalize” over time, any temporal advantage is outweighed by the potentially severe and lasting harm that could result from exclusion by forcing that student to deny their gender identity.183 The complaints of the Connecticut track students also ignore the wide variation in adolescent development and the effect of natural talent, training, access to coaching, nutrition, and many other factors which contribute to whether one athlete achieves and another does

176 See Soule Complaint, supra note 30, at 2. 177 See Thorbeck, supra note 100. 178 See Pitsiladis, supra note 102, at 386. 179 Id. The participants’ age-graded and gender-graded performances had not changed once their bodies has adjusted to the transition. Id. See also, Joanna Harper, Do transgender athletes have an edge? I sure don’t., THE WASH. POST (April 1, 2015), https://www.washingtonpost.com/opinions/do- transgender-athletes-have-an-edge-i-sure-dont/2015/04/01/ccacb1da-c68e-11e4-b2a1- bed1aaea2816_story.html (last visited Nov. 8, 2019). “All athletes who devote their time to getting better, stronger, faster should understand that it’s not easy to voluntarily give up strength and speed, to accept that you’ll never again match your personal best. But that’s one sacrifice transgender women make in order to live as the people they feel they are.” 180 See Rigby, supra note 102, [“While a transgender female] may have a bigger body,… [after transition with hormones] you have a smaller engine to move that vehicle around.” Id. 181 See Team LGBT results from the Rio 2016 Olympics, OUTSPORTS.COM (Aug. 6, 2016), https://www.outsports.com/2016/8/6/12394772/results-rio-olympics-lgbt-athletes/archives (last visited Nov. 8, 2019) (Indicating not one athlete in 2016 Summer Olympics in Rio identified as transgender). 182 See Skinner-Thompson, supra note 39, at 277. 183 See supra note 102; and see supra note 83. 2020 JOURNAL OF HEALTH & BIOMEDICAL LAW 259 not.184 Before Title IX was enacted in the 1970’s, courts dealt with the inclusion of cisgender boys on girls teams where no equivalent teams were available to boys, and courts consistently rejected the concerns of the “swamping of girls’ teams by boys of skill and prowess superior to those of girls” as “overblown.”185 The fear of an army of transgender girls taking over sports teams is similar to the fears of those who believe transgender people using restrooms aligned with their gender identity will usher in an epidemic of sexual assaults in bathrooms, in that the data does not demonstrate that transgender use of bathrooms harms the cisgender population.186 The courts found that the actual harm to transgender students in Adams, Whitaker and Grimm was a key element, indicating both the physical harm requiring medical treatment, and emotional harm, in some cases requiring hospitalization for suicidal ideation, were deciding factors in the outcome of the cases.187 If the Soule Complaint progresses to a court case, the hypothetical harm claimed by the cisgender students for loss of opportunity may be difficult to prove in relation to the consistently researched and documented harm proven by forcing transgender students to deny their gender identity.188 The court in Adams indicated that while federal courts generally “tread lightly” when asked to contravene a local school board’s policy, when minor children are involved, concerns of parents and school administrators cannot be minimized.189 The Adams court reasoned “…it is not surprising that allowing transgender students to use restrooms aligned with their gender identity is not an easy step. But neither was it easy when public restrooms were racially integrated. To be sure, what the law requires and what some are comfortable with are not always the same” and concluded by saying, “all students’ needs are best served when students are treated equally.”190 The fears of cisgender boys posing as transgender girls in order to win sports competitions can also be mitigated by instituting provisions in non-discrimination laws or policies, as many states have implemented, which specify that the person’s gender-identity must be sincerely held as part of their core identity and the person is not asserting gender-related identity for any improper purposes.191

184 See Skinner-Thompson, supra note 39, at 278. 185 See Skinner-Thompson, supra note 39, at 278. In “Gomes v. Rhode Island Interscholastic League, the court held that there was no evidence that the inclusion of a male on the previously all-female volleyball team “will lead to a sudden male influx or domination of Rhode Island interscholastic volleyball.” Id. at 279. 186 See Whitaker, supra note 59, at 1320 (“While the School Board must take into account the concerns of cisgender students and their parents, it may not do so at the expense of Adams’ right to equal protection under the law.”). Id. Indicating the School District’s argument for privacy rights of other students is based on “sheer conjecture and abstraction,” and that the presence of a transgender student poses no more risk in the bathroom than an “overly curious student” who decides to “sneak glances” at his or her classmates. Id. at 1052. 187 See Whitaker, supra notes 59, at 1047; see also Adams, 318 F. Supp. 3d at 1031. 188 See supra note 8. 189 See Adams, 318 F. Supp. 3d at 1311. 190 See Whitaker, supra note 59, at 1055. School District produced no evidence of harm, including invasion of privacy of other students or that the public as a whole will suffer from allowing transgender students to use the restrooms aligned with their gender identity, saying that for other schools with inclusive bathroom policies the “hypothetical concerns…have simply not materialized”. Id. 191 See Sex and Gender Discrimination in the Workplace, supra note 114.

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c. Continued Litigation is Crucial to Achieve Equal Opportunity for Transgender Student-Athletes. More can and should be done to educate school leaders about current legal protections for transgender students and about what it means to foster a welcoming school environment for all students.192 However, providing guidelines and education about inclusivity leaving schools to self-regulate is not enough to ensure that schools follow through, as exemplified by the NCAA. The NCAA has an Office of Inclusion which conducts inclusion training, provides schools with clear, written guidelines supplemented with sample policies, recommendations about specific steps for implementation, and a consistent message across all schools to foster a culture of inclusion among member schools.193 The power of the NCAA was demonstrated when, in a monumental statement of solidarity after North Carolina passed the transgender exclusion bill HB2 in 2016, the NCAA pulled seven championship games of various sports out of the state.194 Despite all of those efforts, at the end of 2018 only 9 out of 65 NCAA conference schools had clearly and explicitly committed to following the NCAA’s inclusive guidelines for transgender athletes.195 Clear guidelines, training, and supportive documentation are not enough ensure that organizations will adopt inclusive transgender student-athlete policies. While twenty-two states have taken up the mantle of protecting students and redefining discrimination to include gender identity at the state level, the states who have not done so contribute to a patchwork of laws leaving students who compete on an interstate, regional or national level at risk for discrimination.196 The attempts of numerous states to restrict the rights of transgender people through legislation, while ultimately failing in most cases, exemplifies the discord among the states as to the level of protection for transgender people in general and students in particular.197 Similarly, disparate state laws regarding same-sex marriage peppered the country prior to the Obergefell ruling, where same-sex married couples were at risk of being stripped of their rights when they crossed state lines, and the same is true for transgender students-athletes, whose rights may be denied simply by playing their sport in the next town.198 Administrative law under the Department of Education Office of Civil Rights in its Title IX enforcement, the EEOC regarding Title VII, and until recently, DOJ and HHS

192 See NCAA Inclusion of Transgender Student-Athletes, supra note 61, at 486-87. 193 See 2018 NCAA Inclusion Forum, supra note 62, at 79. 194 See id. The NCAA later lifted the ban after HB2 was “repealed” in 2017, and championship games resumed in North Carolina as of 2017. Id. 195 See Athletic Equality Index 2018, ATHLETEALLY.ORG (March, 2019), http://www.athleteally.org/wp-content/uploads/2019/03/AEI_Updated_Mar_2019.pdf (last visited Nov. 10, 2019). 196 See State Public Accomodation Laws, supra note 112. State laws that include nondiscrimination for gender identity include California, Colorado, Connecticut, District of Columbia, Hawaii, Idaho, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington. Id.; see also, Adams v. Sch. Bd. of St. Johns Cnty., Amicus brief of the states, at 5-7. 197 See Kralik, supra note 107. 198 See Obergefell, 574 U.S. at 2594; and see High School Policies, supra note 9. 2020 JOURNAL OF HEALTH & BIOMEDICAL LAW 261 interpreted discrimination “on the basis of sex” to include gender identity.199 Despite the Trump administration’s repeal of guidance from 2016 and other rollbacks, the vast majority of district and appellate courts have been following the precedents that recognize discrimination based on gender identity as discrimination based on “sex”.200 In the years leading up to Obergefell v. Hodges, the Court recognized there was extensive public discussion and political discourse, litigation, legislative debate, and grassroots campaigning that led to enhanced understanding of the issue of same-sex marriage.201 Among the arguments, the dissent in Obergefell indicated that by making a decision for all states on same-sex marriage, the Court was shutting down the political process and denying people the opportunity to “win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.”202 By contrast, the majority found that individuals have the right to “constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.”203 Similar layers of discussion are taking place around transgender rights in general and for students; the recent Title IX cases around bathroom use by transgender students serve as bellwethers for future decisions concerning transgender student-athletes.204 The Soule Complaint to the Department of Education is the opening salvo addressing transgender student-athlete inclusion at the high school level and will test the weight of precedent against the repeals of the current administration. Oral Arguments in the Harris case at the Supreme Court on October 8, 2019 provide a window into the discussion that no doubt will affect transgender student- athletes and policies around the country regardless of the outcome of the case. The final order could hinge on whether the majority believes the definition of “sex” should be interpreted by the Court or if Congress should clarify their intention with additional legislation.205 While Justice Gorsuch categorized that a ruling for the plaintiffs would result in a “massive social upheaval” that may be better left to Congress, Justice Breyer dismissed such suggestions as part of a hypothetical “parade of horribles,” and reduced the question to a simple one: whether discrimination against transgender people falls under the Title VII definition of “sex.”206 The plaintiffs argued that federal courts of appeals have “been recognizing that discrimination against transgender people is sex discrimination for 20 years. There’s been no upheaval.”207 The government relied on the

199 See Fetter-Harrott supra note 118, at 2. 200 See Whitaker, 858 F.3d 1034. 201 See Obergefell, 574 U.S. at 2605. 202 Id. at 2625 (Roberts, C.J., dissenting) (also extrapolating legalizing gay marriage would pave way for legalization of polyamory). Id. at 2622; see also, Glen Lavy, Gay marriage and the ‘slippery slope’ , L.A. TIMES (May 21, 2008), https://www.latimes.com/opinion/la-op-lavy-davidson21- 2008may21-story.html (last visited Nov. 3, 2019). "The movement for polygamy and polyamory is poised to use the successes of same-sex couples as a springboard for further de- institutionalizing marriage." Id.; and see Oliver Willis et al, Glenn Beck's anti-gay army of God, MEDIA MATTERS FOR AMERICA, https://www.mediamatters.org/glenn-beck/glenn-becks-anti-gay- army-god (Sept. 3, 2010). James C. Dobson, Focus on the Family, predicted in 2005 that legalizing same-sex marriage will enable "group marriage," "marriage between daddies and little girls," and "marriage between a man and his donkey." Id. 203 See Obergefell, 574 U.S. at 2605. The Court continued by saying that “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Id. at 2606. 204 See supra note 1; see also Kralik, supra note 107. 205 See supra note 11, at 25. 206 Id. 207 See supra note 11, at 27.

262 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVI NO. 3 dissent in Obergefell for its arguments indicating that judicial interpretation “deprives the people of the ability to struggle with these issues democratically.”208 Justice Sotomayor countered by questioning at what point a court continues to permit “invidious discrimination” against groups merely because they are a suspect class to some people.209 For transgender student-athletes in the K-12 school system, whether the Court rules for the plaintiffs in Harris and the inclusion of “gender identity” under the meaning of “sex” under a Title VII definition, by a narrow ruling limiting the definition to Title VII employment cases alone, or by a ruling against the plaintiffs altogether, further litigation will be necessary. The Court is clearly aware of the ripple effect that a broad ruling would have on any “bathroom” cases or on student-athlete participation, and may proceed in such a way to limit the holding in an attempt to blunt the scope of impact on Title IX cases. In any case, further litigation will be necessary to clarify the more specific question of transgender inclusion as it relates to student-athletes in the public-school systems, subject to Title IX. IV. CONCLUSION Transgender adolescents are among the most vulnerable children in our population, and states have an obligation to protect the health and safety of each K-12 student by enacting non-discriminating statutes of inclusion. The particular vulnerability of transgender students can be mitigated by inclusion in athletics according to that student’s gender identity, giving them the same opportunity as any other student to enjoy the physical, social, and emotional benefits that accompany being part of a team working towards common goals. Yet discriminatory restrictions in some states, non-existent protections in other states, and disparate policies among school systems persist, denying many transgender students their right to participate according to their true identities, and putting those students at increased risk of physical and emotional harm that can persist over a lifetime. These restrictive policies run contrary to the growing body of law that finds denying transgender students the same rights as non-transgender students is harmful and violates the constitutional protections to be free from discrimination based on sex. In a political environment as divided as any time in history, relying on federal or state-by- state legislation will delay and cause continued harm to vulnerable transgender student- athletes for the indefinite future. Only continued litigation to the highest levels and reliance on a growing body of case law will shield the rights of transgender student-athletes and force consistency across all jurisdictions.

208 Id. at 58. 209 Id. at 60.