Wisconsin Journal of Law, Gender & Society
Scott Skinner-Thompson and Ilona M. Turner, Title IX’s Protections for Transgender Student Athletes, 28 Wis. J.L. Gender & Soc'y 271 (2013), available at https://scholar.law.colorado.edu/faculty-articles/739.
This article examines legal authority and policy to determine whether transgender students in K-12 schools must be permitted to participate in athletics according to their gender identity, and without any requirement for medical intervention. The articles concludes that such a policy is consistent with legal authority under Title IX and Title VII and, more importantly, best advances the well-being of already vulnerable transgender youth by helping to incorporate and include such students in activities that are critical to physical, social, mental, emotional development, and health.
Part II of this article briefly details the history of Title IX with respect to athletics, including the historical justifications for separating the sexes for purposes of athletic competition, and challenges that have been made to that practice. Part III analyzes the case law that has developed under Title IX and other sex-discrimination laws, which has increasingly recognized that discrimination against transgender people is a cognizable form of sex discrimination. Part IV delves into the possible justifications for barring transgender student-athletes from participating on the team that matches their gender identity, concluding that the purported concerns about safety and privacy have little basis in fact, particularly when applied to students in primary and secondary school. Indeed, for that reason, school districts and athletic associations across the country have begun adopting policies — many of which are described in Part IV, as examples of “best practices” — that allow transgender students to participate on athletic teams based on their gender identity. Finally, Part V looks at the developmental benefits of participation in sports, concluding that equal access to athletic competition is critically important for the well-being of transgender young people.
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