Athletics are an integral part of the process of education and development of young people, especially emerging leaders in our society.  Adopting fair and inclusive policies for transgender student-athletes’ participation will allow sports to fulfill its historical impact on society and progress.  One only has to look to the time of Billie Jean King or Jackie Robinson to understand the impact that sports can have on a society.  Moreover, transgender student-athletes seek athletic competition for physical activity, the excitement of competition, and social interaction – just like all other competitors.  Nonetheless, the challenge for transgender student-athletes remains: how to compete without having their dignity undermined, privacy invaded, or being subjected to discrimination from other competitors, spectators, or their own team.[1]

Athletics can foster social skills, like collaboration and teamwork, trust, empathy, and responsibility.  It provides greater self-knowledge and awareness, time management skills, and psychological resiliency.  More importantly, it can also provide access to “social capital” that facilitate students’ cognitive and social development and offer protection against social isolation, and foster achievement in the community.[2]  This is vital to the transgender community, especially since nearly nine out of ten transgender students experienced verbal harassment at school in the past year and more than half experienced physical harassment because of their gender expression.[3]

Sport provides athletes with a supportive network of teammates that can mitigate feelings of isolation and can contribute to a positive self-image.[4]  Furthermore, the social status that can come from being an athlete may help foster acceptance of a transgender student-athlete.  These benefits are particularly salient to the “especially vulnerable populations of transgender youth.”[5]  So long as intercollegiate athletics exist for the positive effects on students’ physical, mental, and social development, participation policies should be particularly inclusive of transgender students, who are in particular need of these benefits.[6]

Excluding transgender student-athletes from participation in sports consistent with their gender identity signals to all student-athletes that competition and winning is more important than participation and recreation.[7]  If schools and athletic associations truly value the educational purpose of sport, then they should be willing to allow a transgender student-athlete to play on the team to which the student identifies and not his or her natal sex.[8]

NCAA Policy on Transgender Student-Athletes

In August 2011, the National Collegiate Athletic Association (“NCAA”) approved a policy that clarifies opportunities for transgender student-athletes to participate on college athletic teams in accordance with their gender identity.[9]  The NCAA is the governing body for more than 1,200 colleges and institutions and more than 400,000 student-athletes.  It oversees eighty-nine championships in twenty-three sports.  The NCAA policy allows “a transgender student-athlete to participate in sex-segregated sports activities so long as the athlete’s use of hormone therapy is consistent with the NCAA policies and current medical standards.”[10]

Under the policy, a transgender male student-athlete who has a medical exception for testosterone hormone therapy may compete on a men’s team, but is no longer eligible to compete on a women’s team without changing the team status to a “mixed team.”[11] A transgender female student-athlete may not compete on a women’s team without changing it to a mixed team, unless and until she has taken medication to suppress testosterone for one calendar year.  A transgender female student-athlete who is not taking hormone treatments may not compete on a women’s team.  Transgender student-athletes who are not undergoing hormone therapy remain eligible to play on teams based on the gender of their birth sex and may socially transition by dressing, presenting, and using appropriate pronouns that match their gender identity.[12]

Analysis of the Policy

Although it is commendable that the NCAA created and supports this historic and unprecedented step for inclusive policies regarding transgender student-athletes, the policy adopted by the NCAA does not ensure the full inclusion of transgender student-athletes.  The NCAA policy, unfortunately, is based off of the same over generalizations and assumptions of male athletic superiority and unfounded issues of transgender competitive advantages.  It does not allow all transgender student-athletes to compete in a manner consistent with their gender identity – free of restrictions.  If the NCAA were to have a general rule that allows transgender student-athletes to compete in a manner consistent with their gender identity, it would acknowledge its avowed primary purpose of education in college athletics and encourage participation.  Unfortunately, the NCAA adopted unfortunate limitations on the full inclusiveness of transgender student-athletes due to over generalized beliefs about hormone levels.

For example, the NCAA policy restricts and prevents a transgender female student-athlete from competing on a women’s team without changing it to a mixed team, unless and until she has taken medication to suppress testosterone for one calendar year.[13]  This restriction is obviously based on the preconception that natal male physical characteristics of the transgender female student-athlete would give her an unfair competitive advantage over non-transgender women on the women’s team if she does not satisfy the one-year testosterone suppression requirement.

The one-year testosterone suppression requirement ensures that the same transgender female student-athlete can only become eligible to compete on a women’s team, without changing it to a mixed team, if she has reduced the male hormone of testosterone that the NCAA obviously believes to be advantageous to her success as an athlete.  This is a down right oversimplification and generalization of hormone levels and its correlation to athletic talent or ability.  Hormone treatments alone cannot ensure competitive equity.

Do non-transgender male student-athletes have to take hormone suppressants if their testosterone levels are twice as high as his non-transgender male teammate?  Does a non-transgender female student-athlete have to take hormone suppressants if her testosterone levels are twice as high as her non-transgender female teammate?  The answer to both of these hypothetical questions is no.  In fact, the non-transgender student-athlete would not even be subject to tests to determine if their hormone levels are at the “proper” levels.

Moreover, if the transgender female student-athlete does participate on the women’s team without undergoing one calendar year of testosterone suppression treatment, the team loses its eligibility for the women’s championship because of its new “mixed team” status.  The NCAA fails to recognize that, unfortunately, no institution would be willing and supportive of creating such a “mixed team” and thereby forfeiting its opportunity to compete in the women’s championship.  Thus, the transgender female student-athlete would have to sit out an entire calendar year while she undergoes medical treatment to lower her testosterone levels, to a level that is completely individualistic and not measured in any other athlete or participant whatsoever.  The loss of one year in the realm of collegiate athletics is quite serious, as illustrated by the “red shirt” concept the NCAA allows student-athletes to use if they are injured or have to miss an entire year of competition.  The “red shirt” benefit should automatically be available to any transgender female student-athlete required to sit out a full calendar year in order to suppress their testosterone levels according to the NCAA policy.

Also under the NCAA policy, a transgender female student-athlete who is not taking hormone suppressants may not compete on a women’s team whatsoever.  This policy impinges educational values by excluding transgender student-athletes who may not have access to hormone treatment or who might not yet be ready to engage in such treatment.  The fact that a transgender female student-athlete is not undergoing hormone suppressant treatments should not be excluded from competing on the women’s team.  This exclusion again reinforces the NCAA’s belief that the natal male physical characteristics of a transgender female student-athlete give her an unfair competitive advantage over non-transgender women on the women’s team.  This is an overly broad generalization.

Finally, the NCAA, in adopting this policy, also discriminates against transgender student-athletes amongst themselves.  The policy requires transgender female student-athletes to undergo one year of testosterone suppression in order to compete fully on a women’s team whereas the policy allows a transgender male student-athlete to participate on the men’s team immediately.  This inequality is clearly based on the NCAA’s unfounded assumption that natal men are the “superior” athletic sex and the natal female physical characteristics of the transgender male student-athlete do not affect the “fairness” of his participation on a men’s team.   The policy itself is questionable when it distinctly separates the two in such a way and assigns differing requirements to each.

In sum, courts across the country have not had the occasion to address the issue of transgender student-athletes and participation on sex-segregated teams, leaving the law in this area unsettled and the potential likelihood of a successful claim unknown.  However, even if a transgender student-athlete succeeds in challenging the NCAA policies, he or she would have suffered irreparable damage, as the chance to compete will have long ended by the time the lawsuit closes.  In order to avoid this, the NCAA and other governing bodies of athletic competitions should seek to avoid the issue all together by allowing transgender student-athletes to participate in sex-segregated sports in a manner consistent with their gender identity without any restrictions or limitations.

The NCAA has an opportunity to implement a policy that would ensure all student-athletes are able to participate in sport in a manner consistent with how they identify.  If the NCAA were to implement a policy encouraging this, student-athletes would be free to focus on performing their best in athletic competitions and in the classroom.  Instead, the NCAA reinforced the image that athletics is a privileged activity influenced by broad institutional and societal ideas of exclusion and stereotypes.  This failure puts schools and the NCAA at risk for costly discrimination lawsuits and negative media attention.

Furthermore, as a growing number of states, localities, and educational institutions adopt legal protections for transgender students, this issue will become more prevalent.  Finally, because state and federal courts are increasingly applying sex discrimination laws to prohibit discrimination against transgender people, the rights of transgender student-athletes to participate in a manner consistent with their gender identity becomes stronger.

Since the NCAA failed to implement a pure transgender-inclusive policy, the largest governing body of collegiate athletics reinforced stereotypes and fears about gender diversity.  Transgender student-athletes are not the only ones affected by this policy.  By excluding and stigmatizing transgender student-athletes, non-transgender student-athletes might experience more pressure to conform to gender-role stereotypes as a way to avoid being harassed themselves. In the end, transgender student-athletes should have equal opportunity to participate in sports without restrictions, especially in light of the tremendous variation in strength, size, musculature, and ability that exist within non-transgender sexes naturally.

“Our philosophy proceeds from the belief that sport is an inalienable part of the educational process and a factor for promoting peace, friendship, cooperation and understanding among peoples.” – Juan Antonio Samaranch

“I wanted to use sports for social change.” – Billie Jean King