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Can a Lancaster school district restrict how trans athletes play sports?

Legal experts say it could be a violation of Title IX.

  • Gabriela Martínez
A proposed ban on transgender athletes playing female school sports in Utah would affect transgender girls like this 12-year-old swimmer seen at a pool in Utah on Feb. 22, 2021. She and her family spoke with The Associated Press on the condition of anonymity to avoid outing her publicly.

Rick Bowmer / AP Photo

A proposed ban on transgender athletes playing female school sports in Utah would affect transgender girls like this 12-year-old swimmer seen at a pool in Utah on Feb. 22, 2021. She and her family spoke with The Associated Press on the condition of anonymity to avoid outing her publicly.

On July 12, Hempfield School District in Lancaster County is expected to vote for a second time on a new policy that would require student athletes to compete in teams that correspond to their sex assigned at birth.

The board voted last week to approve the policy for a second reading. Board President Grant Keener said all new and substantially revised policies receive a second reading to give the board and the public more opportunities to comment.

Hempfield’s policy comes as other districts in Pennsylvania are taking actions regarding gender identity and sexuality, but it’s not clear whether any of them are pursuing a transgender athlete policy like Hempfield’s.

“We have not yet seen other schools moving toward a policy similar to what Hempfield School District is doing. But if and when other school districts try the same, we will be ready for that fight,” said Naiymah Sanchez, transgender rights organizer at the ACLU of Pennsylvania.

When it comes to implementing laws that prohibit transgender students from competing according to their gender identity, schools could risk violating Title IX, a federal law that states that no person will be discriminated against on the basis of sex “under any education program or activity receiving federal financial assistance.”

At Hempfield’s last school board meeting, two members who voted against the policy, Michael Donato and Jim Maurer, expressed concerns about potential violations of Title IX and complaints that could lead to a loss of federal benefits, such as reduced lunch and other discounts for the district’s low income students.

Hempfield School District voted to advance its new athletic policy for a second reading on June 14.

“I don’t believe that this policy is fair and is clearly not equal, does not provide equal treatment to all students, and as a public institution, we have a fiduciary responsibility to provide a safe learning opportunity for all students,” Maurer said in an interview.

But the majority of Hempfield’s board say they believe Title IX is not an issue.

“I do not believe that this violates Title IX,” said Keener, who voted in favor of the policy, in an interview. “Quite to the contrary, I think the policy gives effect to Title IX’s underlying purpose, which is to increase athletic opportunities for women.”

Hempfield sought guidance from the Independence Law Center and its district solicitor, the firm Fox Rothschild, to craft its policy. 

The Independence Law Center is affiliated with the  Pennsylvania Family Institute, a nonprofit that advocates for what it calls traditional family values and “religious freedom.” In 2017, the center’s attorneys represented six students who sued Boyertown Area School District in Berks County for allowing a transgender boy to use the same bathroom as them. A federal court upheld the district’s practice, and the U.S. Supreme Court declined to take the case in 2019.

Maurer said the district’s solicitor advised against adopting the policy.

“The school board was advised not to be the first in Pennsylvania to adopt this type of policy, and we were advised to let the dust settle, let the legislature or other bodies make this decision, so that we were not striking out as a lone ranger,” Maurer said. 

Title IX ensures female student athletes have the same access to resources. But in 2021, the U.S. Department of Education put out a notice of interpretation saying Title IX also protects from discrimination based on sexual orientation and gender identity. The notice was issued after the Supreme Court decision on Bostock v. Clayton County, Georgia, which ruled that discriminating against people based on their gender identity is discrimination based on sex.

Kristina Moon, senior attorney at the Education Law Center, says school districts that adopt such policies could be sued over them, and could lose federal funding if the U.S. Department of Education’s Office for Civil Rights finds it has violated Title IX.

“That costs money to defend and further alienates the students who are already in your school and see these harmful offensive actions being put forward and defended by the leaders that are supposed to be providing an affirming school for everybody, including them,” Moon said.

Eighteen states have enacted laws to ban transgender girls from competing in teams consistent with their gender identity. In two – Idaho and West Virginia – federal judges have blocked the state from enforcing those laws.

 In Pennsylvania, two bills aimed at excluding transgender girls from female student sports have been winding their way through the GOP-controlled legislature. Governor Tom Wolf has vowed to veto them if they reach his desk.

Two Pennsylvania cases involving transgender students have resulted in decisions that protected students’ rights. In 2017, three transgender students won the case Evancho v. Pine-Richland School District in suburban Pittsburgh, and the district overturned a policy that banned transgender students from using bathrooms that correspond with their gender.

 In another case, A.H. v. Minersville Area School District, a transgender female student and her parents sued because the district stopped her from using the bathroom. In 2017, judge denied a request from the district to dismiss the student’s Title IX complaints. In 2020, the school district reached a settlement with the student and her parents by paying them $27,500 and agreeing to not discriminate against students for being transgender through a consent decree.

 “The trend has been pretty clear that districts that are taking a hostile approach towards treatment of transgender students tend to be losing the court almost all the time,” said Stuart Knade, chief legal officer at the Pennsylvania School Boards Association.

The Pennsylvania School Boards Association helps develop policy models for school districts. Knade says PSBA did not advise Hempfield on its proposed transgender policy. While the organization does not have a specific policy model for issues related to transgender athletes, it does provide information and legal considerations about past court rulings. 

The ACLU says it is monitoring what happens in Hempfield regarding its athletic policy.

“If Hempfield School District implements a ban on participation in school athletics, the ACLU of Pennsylvania will gladly work with any student who wishes to oppose such a policy,” Sanchez said.

As part of the 50th anniversary of Title IX, the U.S. Department of Education announced proposed rules under Title IX to clarify that discrimination based on sexual orientation and gender identity is part of sex-based discrimination. The Department also announced that it would issue separate proposed rules regarding eligibility to participate on a particular male or female sports team.

 

Note: This story was updated to include news from the U.S. Department of Education regarding Title IX

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