Gender Equity Consideration in School-Sponsored Sports Policies

Venable LLP

Venable LLP

As independent schools work to promote equity, understanding, and inclusion of students across the gender spectrum on their campuses, it seems that legislative efforts on the state and federal levels are moving in the opposite direction. To date, 23 states have passed laws prohibiting transgender students from participating in school sports aligned with their gender identity. On the national level, the U.S. House of Representatives passed a bill in April that would ban women and girls from playing on sports teams based on their gender identity.[1]

Absent definitive law or guidance, independent schools may be wondering whether, and how, to address transgender students' participation in sports in a manner that is consistent with their diversity, equity, inclusion, and belonging efforts and, in particular, how to address gender equity in sports and other school-sponsored activities as part of their gender equity policies and procedures.

Applicability of Laws

Currently, at least 23 states have passed laws which require that membership in certain K-12 and college sports teams be determined strictly by students' biological sex, effectively banning transgender students from participating on sports teams that correspond with their gender identity. The 23 states with such bans are Alabama, Arizona, Arkansas, Florida, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.

While indicative of the larger cultural divide, many of the recent developments in state and federal law do not directly impact independent schools at this time. The majority of recently passed state laws banning transgender participation in school sports apply primarily to public and charter K-12 schools, colleges, and universities. Independent schools may be covered, however, if their sports teams compete against public school teams. In those states, independent schools that participate exclusively in independent school athletic associations would be exempt from the state transgender sports bans.

Gender Equity Policy Considerations

Independent schools that are considering addressing transgender students' participation in sports should first consult their legal counsel to determine whether they are subject to any federal and state laws and regulations that would impose any legal obligations on the school. In the absence of any applicable laws or regulations, schools should look to the interscholastic athletic association in which their sports teams participate. If the athletic association has already issued a policy that speaks to the issue, then the school should ensure that its sports teams that compete in interscholastic athletics comply with the athletic association's policy.

Absent any applicable federal or state laws or regulations, or athletic association policies, independent schools have some flexibility to determine whether, and the extent to which, they will allow transgender students to play on sports teams that are consistent with their gender identity. In particular, schools that have emphasized diversity, equity, inclusion, and belonging (DEIB) efforts and, specifically, gender identity and equality, in recent years might wish to expand those efforts to ensure that transgender students have an equal opportunity to participate in all aspects of the school experience, including school sports. Independent schools with existing gender identity policies should ensure that their stance on transgender students' participation in school sports aligns with their existing policies and practices.

Cultural Questions

Finally, as a school's policy on transgender students' participation in sports will impact other schools, their students, and the greater school community, it is important that independent schools carefully consider the impact of their sports participation policy on the greater school community and any other potential repercussions. Independent schools should ensure that they understand the general climate and stance of the community regarding such a hot-button issue as they develop their own position and policy on the topic.

[1] The bill is unlikely to succeed; to become law, it would have to pass the Democratic majority in the U.S. Senate and be signed by President Biden, who has vowed to veto the bill if it lands on his desk.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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