New high school athletics gender rule may cause discrimination

CHARLOTTE, N.C. — A new rule on transgender student athletes adopted by the North Carolina High School Athletic Association last week could cause confusion and discrimination, say advocates for transgender students. But, officials at the statewide association — given authority to oversee all sports at public high schools across the state — say they were attempting to take a proactive step to address similar questions considered across the country.

The North Carolina High School Athletic Association (NCHSAA) met on April 28 to adopt the new rule, clarifying in which gendered sports programs students may compete.

“A student’s gender is denoted by what is listed on the birth certificate,” the rule states simply.

NCHSAA Commissioner Davis Whitfield told qnotes on Monday the association is following state law.

“When I look at what’s going on across the country and I look at some of the things being put in place, I think ours is probably as least restrictive as it possibly could be,” Whitfield said. “We were just simply going by state law, in terms of what it states on your birth certificate as your gender and that’s what you would compete as as a member of one of our high school teams.”

But, advocates for transgender students say the new rule joins Georgia’s as among the most restrictive and might likely cause confusion and discrimination.

“When states use the birth certificate for eligibility, that means for transgender student athletes that is the very most restrictive policy they can use and they are basically not allowing any transgender student to participate in their gender identity,” said Helen Carroll, director of the National Center for Lesbian Rights (NCLR) Sports Project.

Carroll, a former national championship basketball coach at University of North Carolina-Asheville, has worked with the NCAA and other college and high school sports associations to address the inclusion of transgender student athletes. She co-authored the NCAA’s landmark “Inclusion of Transgender Student-Athletes” handbook, policies and guidelines in August 2011.

She and other advocates like National Center for Transgender Equality Director of Policy Harper Jean Tobin say the state law in question — regulating the amendment of gender markers on birth and death certificates — requires individuals to undergo sex reassignment surgery in order to change their birth certificate’s gender. International medical standards and practices strongly frown upon direct surgical intervention for minors, they say.

The World Professional Association for Transgender Health sets standards followed by nearly all healthcare professionals working with transgender patients. Carroll points to statement included in an NCLR transgender student athlete report she co-authored.

“The World Professional Association for Transgender Health (WPATH) Board of Directors has stated that policies requiring surgery as a condition of identity recognition are not advisable as a matter of ethical healthcare. High schools and colleges should not require surgery for students to compete in their affirmed gender,” Dr. Jamison Green, president of WPATH and the Center of Excellence for Transgender Health at University of California-San Francisco, says in the report.

Instead, Carroll said schools and sports associations should adopt more nuanced and inclusive policies that do not require surgery. Several states, she said, have already adopted such rules or are considering it, including Florida, Nebraska, Washington, Colorado, California, Wisconsin, Kansas, the Dakotas and Iowa.

Tobin said the new policy can also cause confusion. While North Carolina and other states may require surgery to change birth certificates, others do not. The result could mean transgender students born outside North Carolina are given an unfair advantage over students born inside the state.

“If they were born in North Carolina and a number of other states, the standard is surgery. In other states, it’s whatever treatment determined medically appropriate for them by their providers,” Tobin said. “In high school that may mean puberty-delaying hormone blockers, it may mean hormone therapy, or it may mean no medications or surgery, simply a psychologically-supported social gender transition, with any other treatment being decided in the future based on medical need.”

Tobin said the new rule also brings into question potential violations of Title IX, a federal law banning gender-based discrimination in education. Recent guidance from the U.S. Department of Education has said gender-based discrimination “extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.”

The recently-adopted NCHSAA policy will have an immediate affect on high school student athletes.

Blake Brockington, an East Mecklenburg High School senior and the school’s 2013-2014 homecoming king, once played basketball for his school’s women’s team, but no longer. He came out as transgender to classmates at the end of his sophomore year. He voluntarily left the women’s basketball team.

The new NCHSAA regulation will only prevent student participation, not increase it, Brockington said.

“I really don’t believe that [the policy] is fair at all because a lot of students, including myself, have either not participated in sports at all or have given up on sports that they love simply because they cannot be in a space where they are comfortable. It sucks to be a guy playing on a girls’ team. It sucks being a girl playing on a guys’ team,” he said.

Brockington added, “I will never play on a woman’s team again. If that means that I’ll never play sports again, so be it, but I shouldn’t have to sacrifice my love for athletics or myself just because my sex assigned at birth does not match my gender.”

Whitfield, though, said NCHSAA is simply trying to be proactive. He said his office hasn’t yet encountered a request from a transgender student and said the rule isn’t designed to discriminate.

“The most important thing is that we are not in anyway trying to disallow opportunities for our transgender students,” Whitfield said. “It’s just a matter of making sure they are playing, in our minds at least, the appropriate sport — the appropriate gendered sport.”

Whitfield said he wasn’t personally aware if NCHSAA consulted transgender students, parents or education groups. “Our legal counsel looked at several and consulted with several entities — who specifically I don’t know — but when we began a discussion he basically stated it makes the most sense to continue to follow state law,” Whitfield said.

Carroll said she hopes the NCHSAA might be willing to look at more research and other policies, and she’ll be reaching out to Whitfield and others.

“I would say my hope is that the director and his administrative team would be willing to look at the extensive research that has happened in the last four years and has been adopted by at least 10 states across the United States that does allow allow transgender student athletes to participate in their gender identity in a very fair and equal way,” she said.

About the author: Matt Comer was the editor of QNotes, first hired to serve in the role in October 2007, with his tenure ending August 23, 2015.