(Part II)

The incoherence of the new Office for Civil Rights transgender policy becomes even clearer when one looks beyond bathrooms to locker rooms, and the athletic teams they serve. The “Dear Colleague” letter states that “Title IX regulations permit a school to operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport. A school may not, however, adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others’ discomfort with transgender students.”

Broad, but Not Too Broad

Note that OCR provides no guidance as to when a broad generalization becomes “overly broad.” In fact, there would seem to be a real possibility that a college or university could be found in violation of Title IX for complying with NCAA regulations.

For example, the “Dear Colleague” letter declares that “Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.” But the NCAA Inclusion of Transgender Student Athletes policy states that “A trans female (MTF) transgender student-athlete who is not taking hormone treatments related to gender transition may not compete on a women’s team.” MTFs and FTMs, however, are not treated the same, since “A trans male (FTM) student-athlete who is not taking testosterone related to gender transition may participate on a men’s or women’s team.”

As if this were not confusing enough, the NCAA inclusion policy also states that “A trans male (FTM) student-athlete who has received a medical exception for treatment with testosterone … may compete on a men’s team, but is no longer eligible to compete on a women’s team without changing that team status to a mixed team.” But by contrast, “A trans female (MTF) student-athlete being treated with testosterone suppression medication … may continue to compete on a men’s team but may not compete on a women’s team without changing it to a mixed team status until completing one calendar year of testosterone suppression treatment.”

In short, does OCR’s new command “that… read more here

Read Part One, “Transgender and the Transformation of Civil Rights”