Public school superintendents in Texas have voted 586-32 in a January referendum adopting a new rule requiring schools to use birth certificates to determine gender of prospective student-athletes in school sports.
The move is widely seen by critics as an attempt to handicap transgender student-athletes' eligibility to participate in sports and school activities, if not to ban their participation altogether.
The statewide vote was brought on in October by the legislative council of the University Interscholastic League, the governing body of Texas high school sports, to refer and recommend the proposed rules change down to individual school districts. UIL policy director Jamey Harrison said the new rule codifies existing procedure.
Critics note that the rule potentially runs afoul of both Title IX and the UIL's nondiscrimination policy, which prohibits member schools from barring students in sports for race, color, religion, disability, national origin and gender.
The new rule provides guidance on the last category and reads: "Gender shall be determined based on a student's birth certificate. In cases where a student's birth certificate is unavailable, other similar government documents used for the purpose of identification may be submitted."
That criterion might inhibit transgender student-athlete participation, but it does not explicitly prevent it.
But depending on the interpretation and action of individual schools and school districts, that could change on Aug. 1, when the new rules take effect statewide. The policy could ultimately prove expensive as well as inconsistent, as it might contradict the federal Department of Education after its 2014 decision to extend Title IX protections to transgender student-athletes.
Schools and districts that fail to comply face the expense of investigations from the DOE's Office of Civil Rights and the potential loss of federal funds (with Texas budgeted to receive $3.2 billion from DOE in both 2016 and 2017). Office of Civil Rights intervention and the threat of a loss of federal funds was critical in the recent negotiated provision of locker-room access to a student in Palatine, Illinois.
The issue reflects the inconsistency of rules for transgender eligibility nationally, as standards vary from state to state. The Department of Education's decision to apply Title IX standards to transgender student-athletes was intended to provide clarity but has produced policies such as this one that push back against inclusion efforts.
"This is the policy [Texas schools] have used for years. Texas school districts and courts are already allowing some transgender student-athletes to participate," said Helen Carroll, the director of the sports project for the National Center for Lesbian Rights, a national civil right organization that works on issues for inclusion within sports. "However, by formalizing this rule, schools can comply with the Texas regulations, or they can comply with Title IX, but they can't do both."
The rule's reliance on birth certificates is not explicitly discriminatory but risks inconsistent results as far as allowing students to play.
Transgender student-athletes who have gotten their birth certificates changed might remain eligible to compete in that gender. But changing a birth certificate can require getting a court order, which can be an expensive and lengthy process. And the laws that create the possibility to change a birth certificate vary by state. In some states, changing the gender marker on a birth certificate can require proof of having had surgeries, which transgender people generally do not or cannot have until after they turn 18.
In Texas, in the absence of specific policies or laws, successfully amending a birth certificate can depend entirely on an individual judge's readiness to listen and learn from students, parents, attorneys and advocates.
The rule provides similar inconsistency for transgender transfer students in families that move to Texas. Those coming in from states ready to allow birth certificate amendments who already have their documents changed should be allowed to play under the rule. But transgender students transferring from states that forbid changing the gender marker on a birth certificate -- such as Ohio, Idaho, Kansas and Tennessee -- would be barred for participating in sports in their gender.