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Transgender-Inclusive Athletics Policy Violates Title IX

On May 15, 2020, the U.S. Department of Education Office for Civil Rights (OCR) issued a Letter of Impending Enforcement Action regarding ongoing cases involving transgender athletes in Connecticut schools. 

These cases allege a policy that allows transgender females to participate in interscholastic athletics discriminates against cisgender female student-athletes. The alleged discrimination involved denying cisgender female student-athletes opportunities to compete in state and regional meets and preventing them from receiving public recognition vital to college recruiting opportunities.

The policy, which allows transgender athletes to compete with no restrictions, was put in place by the Connecticut Interscholastic Athletic Conference (CIAC) following the expansion of state anti-discrimination laws that prohibit discrimination on the basis of gender identity or expression. As a result, two transgender female students were able to compete in girls’ track and achieved success at regional and state competitions. 

Many cisgender female student athletes went on record stating they were denied opportunities to compete. Both the CIAC and the participating schools contend that not following the policy would be discriminatory towards transgender students and violate state law.

The OCR determined that the policy permitting cisgender male students to participate in girls’ track violated Title IX, as it denied athletic benefits and opportunities to female student athletes.  Further, the school districts involved in permitting transgender athletes to compete were found in violation of Title IX because their participation resulted in a competitive disadvantage for female student athletes. That claim centered on the fact that the students didn’t have the ability to compete in events that were exclusively female, while male students were able to compete in events that were exclusively male.  

Connecticut schools following the policy were permitted to enter into resolution agreements to remedy the violations. In connection, the OCR issued the Letter of Impending Enforcement Action threatening to remove federal funding from the CIAC and participating school districts. 

While this enforcement action is only against the Connecticut schools and athletic conference, it has the potential to impact schools nationwide. Any state with similar policies – those that impose no restrictions on transgender athlete participation – could find themselves facing comparable enforcement action. Schools with policies in place regarding transgender student participation in sports should consider reviewing and updating their rules to avoid similar problems. 

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 164

TRENDING LEGAL ANALYSIS


About this Author

Mark D. Scudder, Barnes Thornburg Law Firm, Fort Wayne, Labor Law attorney
Of Counsel

Mark D. Scudder is an of counsel member of Barnes & Thornburg LLP's Labor and Employment Law Department in the Fort Wayne, Indiana office. Mr. Scudder’s practice covers virtually all areas of labor and employment law, including litigation concerning discriminatory practices, worker’s compensation benefits, collective bargaining agreement administration, and grievance and arbitration proceedings. He has represented clients in state and federal courts at all stages of litigation, from pre-litigation counseling, alternative dispute resolution, trial and appeal. He has also represented...

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Janilyn Brouwer Daub Labor & Employment Attorney
Partner

Janilyn Daub defends employers in labor and employment litigation in federal and state courts, as well as before various governmental agencies, such as the OFCCP, EEOC and NLRB. She is dedicated to helping her clients with the legal issues that arise when managing a workforce, navigating them through the challenges they face while seeking to mitigate future problems and liability.

With a practice that is national in scope, Janilyn frequently advises clients on issues related to affirmative action plans, including plan preparation and defense of Office of Federal Contract Compliance Programs (OFCCP) audits, as well as conducting compensation analyses. Janilyn offers extensive experience helping clients prepare employee handbooks and policies and advising them on issues such as the Family and Medical Leave Act, the Americans with Disabilities Act, wage and hour laws, and in preventing and dealing with harassment. She frequently provides training sessions to clients and presents seminars on these topics.

Janilyn is at her best when partnering with clients to address, manage and overcome their organizational “people problems” by providing tangible solutions that actually make a difference.

Notably, Janilyn also represents educational institutions, including clients involved in higher education and K-12. She works with colleges, universities and other educational facilities to comply with Title IX issues related to race, gender and the like, as well as assists them through and beyond student challenges such as myriad disability accommodation matters. She also advocates her client’s position before the Department of Education’s Office for Civil Rights, helps create and implement policies and procedures specific to educational institutions, and addresses Family Educational Rights and Privacy Act (FERPA) issues that protect the confidentiality of student records.

Simply, Janilyn is valued for her ability to render consistently valued advice and practical solutions to the employee-related challenges her clients face daily. She is appreciated for her straightforward approach to problem-solving and for her genuine commitment to meeting each client’s needs in a pragmatic and business oriented manner. A dutiful liaison and trusted adviser, clients and colleagues alike know they can count on Janilyn to render proactive, productive and actionable counsel that actually solves their problems and positions them favorably going forward.

Janilyn frequently presents on employment law topics at Society for Human Resource Management (SHRM) and Michiana Human Resource Association (MHRA) events.

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