Texas transgender student athlete policy based on outdated legal opinion

By Rob Howard
Associate Editor

In February, “Texas’ University Interscholastic League, which oversees high school athletics, decided that students’ gender will be based on their birth certificates,” according to Towleroad.com.

At that time, the Texas Observer reported, “Despite strong opposition from LGBT advocates, representatives from Texas school districts have overwhelmingly endorsed a proposal aimed at barring transgender boys and girls from participating in athletics alongside their cisgender peers.

“District superintendents and athletic directors voted 409-25 in favor of using birth certificates to determine student athletes’ gender, according to results obtained by the Observer through a request under the Texas Public Information Act.”

On Friday, the Observer reported, “The University Interscholastic League’s controversial new restriction on transgender student athletes grew out of a nine-year-old legal opinion from a high-ranking attorney at the University of Texas, according to documents obtained by the Observer through a request under the Public Information Act.

“But the opinion, from UT’s Associate Vice President for Legal Affairs Jeffery L. Graves, didn’t address participation in high school athletics. Instead, it dealt with documentation trans employees at UT needed to qualify for gender-based benefits.

“Graves told the Observer UIL officials didn’t consult him before enacting the policy, which bases student athletes’ gender on their birth certificates. The new rules could bar trans youth from participating in high school athletics alongside their cisgender peers.

“Graves acknowledged that his opinion could be outdated, because the ‘legal landscape has changed.’”

Towleroad.com quoted Paul Castillo, a staff attorney for Lambda Legal, in reaction to the discovery. “’It is astonishing for the UIL to rely on outdated legal advice to support a clearly discriminatory policy that essentially precludes transgender students from the equal opportunity to participate in athletics and other UIL activities,’ said Castillo.

“’[The U.S. Department of Education] has consistently clarified since at least 2010 that transgender students are protected by Title IX. More troubling is that the legal advice relied upon by UIL was on completely different subject matter and should not have been used for any other purpose. Frankly, that’s equivalent of following the orders of your doctor prescribed to an entirely different patient. It’s wholly irresponsible and alarming.’”

UIL representatives didn’t immediately respond to the Observer’s request for comment.

“LGBT advocates say the policy runs afoul of the UIL Constitution and Title IX of the U.S. Education Amendments. In 2014, the Department of Education said Title IX’s prohibition against sex-based discrimination applies to transgender students,” said the Observer.

In 2014, Graves continued to stand by his opinion, according to the Observer, which reported, “’In those instances in which there is a question as to a student’s gender identity, the presumption is to defer to the gender identity on facially valid official documents, such as birth certificates and driver’s licenses, regardless of the appearance or the subjective report of the individual regarding their gender identification,’ Barnes wrote.

“UIL Executive Director Charles Breithaupt responded that he felt Barnes’ statement was ‘right on point and appropriate for us to use for the current time.’

“’We will have to see how long it can stand,’ Breithaupt wrote.”

The new policy goes into effect August 1, according to the Observer.

The Gayly – March 14, 2016 @ 7:20 a.m.