Legislation Would Allow Schools and Colleges to Request a Health Exam to Verify Student’s Sex

The Florida legislature has entered into the fray regarding whether transgender athletes can compete in sports at their public schools and colleges. As background, during the 2013-2014 school year, the Florida High School Athletic Association (FHSAA) adopted a transgender inclusion participation policy, stating: “All eligible students should have the opportunity to participate in interscholastic athletics in a manner that is consistent with their gender identity and expression, irrespective of the gender listed on a student’s birth certificate and/or records.” The policy further outlines the procedures for transgender student athletes to follow in order to determine their eligibility for participation in a gender-segregated sport or team consistent with his or her gender identity and expression. Since then, only 11 athletes have applied to compete in high school athletics according to the policy’s provisions.

Despite the ostensible infrequency of the issue, Florida lawmakers are proposing bills (HB 1475 and SB 2012) that would require athletic teams or sports sponsored by public K-12 schools and public colleges to be designated on the basis of a student’s biological sex and prohibit male students from participating on teams or sports designated for female students. In effect, the bills would prevent not only male athletes, but also transgender athletes from participating in female scholastic sports.

On Wednesday, February 14, 2021, the House’s proposed bill passed in the Florida House 77 to 40. The Senate’s similar corresponding bill, scheduled to be heard by the Florida Senate the same day, was postponed. A new date has not been set.

House Bill 1475: “Fairness in Women’s Sports Act”

Intent

House Bill 1475, approved by the Florida House, would create a new act in the Florida Education Code, section 1006.205 – the “Fairness in Women’s Sports Act.” The stated intent of this Act is to maintain opportunities for female athletes to demonstrate their skill, strength, and athletic abilities while also providing them with opportunities to obtain recognition, accolades, and college scholarships. In order to achieve this goal, the Act would require the designation of separate sex-specific athletic teams and sports.

Designation of Athletic Teams or Sports

The Act provides that any athletic team or sport, including intramurals and club sports, sponsored by a Florida public K-12 school or public college, or any school or institution whose students or teams competes against a public school or public college, must expressly designate such teams and sports based on biological sex – i.e., (1) males, men, or boys; (2) females, women, or girls; or (3) coed or mixed. The Act specifically states that athletic teams or sports designated for “females, women, or girls” cannot be open to students of the male sex.

Disputes Regarding a Student’s Sex

If there is a dispute regarding a student’s sex, the Act provides that the school may request the student to provide a health examination or statement from the student’s health care provider regarding the student’s biological sex. The Act states that students’ primary care provider can also verify the student’s biological sex as part of their routine physical examination by relying on the student’s (1) reproductive anatomy, (2) genetic makeup, or (3) normal endogenously produced testosterone levels.

Protections for Schools and Colleges

The Act provides certain protections to schools and colleges against any governmental entity, licensing or accrediting organization, or athletic association, stating that such an entity may not file a complaint, open an investigation, or take adverse action against the school or college for maintaining separate athletic teams or sports for students of the female sex.

Civil Causes of Actions and Remedies

The Act would provide three private causes of action for injunctive relief and monetary damages. First, to any student deprived of an athletic opportunity or who suffered harm as a result of a violation of the Act against the school or college. Second, to any student who is subjected to retaliation by a school or college as a result of reporting a violation of the Act against the school or college. Third, to any school or college that suffered harm as a result of a violation of the Act against the governmental entity, licensing or accrediting organization, or athletic association or organization. The Act provides a two year statute of limitations and attorney fees and costs to the prevailing party.

Proposed Date Act to Take Effect

The Act, if approved, would take effect July 1, 2021.

Senate Bill 2012: “Promoting Equality of Athletic Opportunity Act”

The Senate’s corresponding bill is substantially similar but has an additional requirement for student athletes transitioning from male to female.

Recognizing that in Florida, the use of cross-sex hormone therapy and the number of transgender athletes is increasing, the Senate’s bill states that it is intended to protect female sports and teams from the inherent biological differences between men and women – specifically as it relates to natural levels of testosterone, which effects physical strength, speed, and endurance in athletes.

The Senate noted that in 2015, the International Olympic Committee successfully issued guidelines specifying that an athlete who has transitioned from male to female is eligible to compete if she demonstrates that her total testosterone level is below a certain threshold for at least 12 months prior to her first competition in order to minimize any advantage in women competitions. As such, the Senate’s proposed bill adopts the Olympics’ guidelines for a transgender student athlete who wishes to play on a female category team or sport.

Other States

Approximately 16 states have policies that help facilitate full inclusion of high school transgender students athletes; 14 states have policies requiring medical proof and/or disclosures of the student’s biological sex; 11 states have policies that are considered to be a barrier to the inclusion of transgender student athletes; and 11 states have either not issued statewide guidance, allow schools to create policies on their own, or rely on a single person to make decisions on a case-by-case basis.

Significance for Florida School Boards and Boards of Trustees

Until the Florida legislature passes legislation, there are no state-wide requirements for public schools and universities to follow regarding transgender athletes. It is unclear whether existing federal guidance would conflict with the legislation and the U.S. Supreme Court may ultimately issue a ruling on the issue, which likely would preempt any such state law.

If the Senate approves their bill, the House and Senate would still need to reach agreement on the bill. When an identical bill is passed in both the House and Senate, then Governor DeSantis would need to sign the bill in order for it to become law. Such a bill will likely set forth clear guidelines on what public schools and colleges are allowed to do regarding transgender athletes participating in scholastic sports. School Boards and Boards of Trustees can then revise athletic guidelines, athletic participation materials, and overall approaches to transgender student athletes accordingly.

The RumbergerKirk Educational Law Team will continue to monitor Florida Lawmakers activity and provide updates as this proposed legislation develops.