Tuesday, February 28, 2017

How States Can Better Promote Fairness for Transgender Athletes by Jonathon Reynolds - Education Law Prof Blog

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How States Can Better Promote Fairness for Transgender Athletes by Jonathon Reynolds

Image result for Mack Beggs

Mack Beggs, 17, won the Texas state girls’ wrestling title on Saturday culminating in an undefeated season for the young man. Unfortunately, this was not the division Beggs wanted to compete in – a sentiment shared by his competitors and other members of the community. Beggs was born female, but according to the Star-Telegram, his parents recall Beggs identifying as male as early as age 3. After a long wait, Beggs was finally able to begin transitioning a little more than a year ago with the use of testosterone therapy. Naturally, the treatment has promoted substantial growth in muscle mass and physical strength.
There was overwhelming community support behind Beggs’s desire to wrestle in the boys’ division, but the University Interscholastic League, the state’s governing body for public school athletics, prohibits gender integrated athletics. The Dallas Morning News reports that in 2016, 95% of Texas Superintendents voted in favor of amending the UIL’s constitution to require student athletes compete as the gender identified on their birth certificate.
The expansion of sex-separated teams in public school wrestling has been a recent development. I was on a wrestling team in Tennessee from 2005-2008, and I had the opportunity to wrestle several females over that course of time.  My female opponents were never conclusively less capable than the male opponents. Importantly, these opponents were females both on their birth certificate and in identity. Mack Beggs is not. Beggs testosterone therapy and male identity create actual differences between him and his female competitors. Since we have allowed female wrestlers to compete with males as a matter of practice before sex-separated teams, why not allow them to compete now? 
 It’s likely the UIL policy was promulgated to protect female competitors from competitors labeled male on their birth certificate, but incidentally the policy has created a situation where female competitors are forced to wrestle a male. Beggs may not be male according to his birth certificate, but according to his strength, muscle mass, and undefeated season – many would concede that Beggs is male, thus creating the problem the UIL wanted to avoid.
Under the Obama administration’s policy guidance, Beggs likely could have filed an administrative complaint with the Office for Civil Rights, alleging discrimination under Title IX.  The Trump administration, however, recently reversed that policy position.  The Supreme Court will presumably pick sides later this year in its pending case, Grimm v. Glouchester County, which addresses transgender students’ access to bathrooms consistent with their gender.
But even if the Court sides with the new administration and concludes that sex discrimination only means Education Law Prof Blog:

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