Despite objections from LGBT advocates, UIL’s longstanding informal policy is set to become official August 1 — when it takes effect as an amendment to the league’s constitution.
The amendment, initially approved by UIL’s Legislative Council last year, wasoverwhelmingly ratified by representatives from member districts in February.
However, LGBT advocates hoped officials at the University of Texas at Austin, which oversees UIL, would veto the amendment since it appears to conflict with the school’s policy against discrimination based on gender identity.
UT-Austin officials confirmed they were reviewing the proposed UIL amendment in April, but university spokesman J.B. Bird indicated this month they have no plans to halt its implementation because underlying legal questions about accommodations for trans students remain unsettled.
Bird noted that Texas Attorney General Ken Paxton recently filed suit against the Obama administration over federal guidance saying public schools must allow trans students to use restrooms and other facilities “consistent with their gender identity.”
“I think that’s definitely causing the university to look very carefully at what’s happening around us … since we’re a state agency, and we have the state pursuing these actions ” Bird said.
Paul Castillo, a Dallas-based staff attorney for the LGBT civil rights group Lambda Legal, said that by allowing the UIL amendment to take effect, the university is violating Title IX of the U.S. Education Amendments, which prohibits discrimination based on sex in federally funded education programs.
The U.S. Department of Education has repeatedly said Title IX protects trans students.
“They are violating Title IX by sitting on their hands and waiting for litigation to play itself out,” Castillo said of UT. “They’re putting their own funds at risk, but beyond that, as a university system, they should take a stand.”
See here, here, here, and here for the background. All that is needed here is for UT, and by extension the UIL, the follow the guidelines of the NCAA and International Olympic Committee, and thus not violate Title IX. Clearly, we are going to have to do this the hard way.
Thee is a lot of speculation to whether the Department of Education can actually interpret Title IX as requiring non-discrimination against transgenders. It will require litigation to resolve, or action by Congress to clarify the legislative intent. For the progressives out there, you don’t get to use regulation to bypass the legislative process, even if the outcome you desire is blocked.
The NCAA and the Olympics both require any male desiring to compete as a female to have undergone at least a year of hormone replacement therapy to suppress testosterone. If the UIL adopts that, I wouldn’t have any objections. I do object to males who haven’t undergone HRT competing as females, as it is utterly unfair to the athletes who were born female, and identify as such.
This continues to be the one area where transgender status may be a legitimate consideration in public policy. I say may because I am a lawyer, far from an expert on as to what advantage a transgender female might have playing sports. I continue to be very interested in true expert opinion on that, and I have an open mind. Until then, anecdotal evidence and my instinct tells me transgender females would have an athletic advantage on cisgender females.
It isn’t as easy as just saying Title IX and going home. Title IX says “the abilities of male and female students must be equally accommodated” in athletics. This is why we have separate female teams, and why Title IX in fact mandates separate female teams in the first place. Otherwise, many females would be denied the opportunity to participate in athletics because of the size and strength advantages that makes generally have.
So, in short, this is not like the bathrooms where one side is being discriminatory out of pure bigotry. Here,we have two competing interests…
1. Allowing female athletes to compete in a field so as to maximize their opportunities free of a natural athletic advantage held by the other gender.
2. Allowing transgender students to live according to their gender.
These are both important things, and I think the vast majority of us are supportive of both aims. However, IF (and that is a big if dependent on the science of it I mentioned earlier) transgender females have a natural biological athletic advantage on cisgender females, it is not possible to fully pursue both aims without infringing on the other. You would have to come up with some sort of balancing test, and while I don’t pretend to have some Solomonic answer, Title IX doesn’t either.
My bigger point is that while 99% of transgender issues should be easy from a public policy perspective, live your gender without any interference, this is the 1% that isn’t. A more functional political system could discuss his maturely and come to a reasonable solution, but I’m afraid we don’t have that at the moment. I will freely admit that the anti-trans people don’t help their case by being so hateful in every other respect as well, but legally it is not open and shut that Title IX litigation would go against UIL. This case, for these reasons.