What is the solution when Title IX protections afforded to one protected group disadvantage the other protected group?

Title IX prohibits gender discrimination in educational institutions. In school athletics, males and females have sex-segregated teams. Title IX requires that women's teams and men's teams be treated equally in participation opportunities, benefits and treatment and financial assistance. Title IX also prohibits discrimination against transgender students as does Connecticut state law.

The Connecticut Interscholastic Athletic Conference (“CIAC”), the regulatory agency governing high school interscholastic athletics, categorizes sports participation to permit students to participate on the team with which they gender identify. Thus, transgender females (assigned male at birth) may participate on the girls' track teams. During season competition, cisgender females (assigned female at birth) and transgender females can participate equally, which complies with Title IX.

But post-season competition presents a specific challenge to Title IX.

In Connecticut, in interscholastic track and field, two transgender females have gained entry to post-season meets at the expense of two cisgender females, who are excluded from participating. This issue is public and has been covered by the media. Two transgender females qualified for spots in post-season competition. There are a limited number of spots at post-season meets and, thus, the athletes, who would otherwise qualify, are effectively prevented from attending the post-season meets. Post-season competition is covered by Title IX.

Exclusion from post season competition results in a denial of educational opportunities under the law, including the opportunity to be seen and recruited by college coaches with scholarship opportunities, win a state championship for their school, or merely to participate in a post-season competition against superior competitors to name a few.

It is empirically supported that in areas of power, speed and strength, males are superior to females at the top end based on physiological differences. Cisgender men (assigned male at birth) are not disadvantaged if a transgender male (assigned female at birth) participates on a men's team because the transgender male does not have a physiological advantage. Yet, because cisgender females are disadvantaged by transgender females' participation in track and field at the college level, the NCAA allows transgender females to play on a female sports team only after undergoing one year of hormone therapy.

The International Olympic Committee has similar rules restricting transgender females' participation on women's teams. The NCAA and IOC rules do not place any restrictions on transgender males participating in male sports programs. Thus, the CIAC rule only places cisgender females at a disadvantage, which is discrimination under Title IX.

The CIAC has been made aware of parents' concerns about this inequity and have rejected suggestions that would allow both cisgender and transgender females to participate in post-season competitions, such as creating two categories—one for cisgender and one for transgender females, or adding two more spots at the post-season competitions to permit the two otherwise absent cisgender females to also compete. Instead, the CIAC, with the support of the Connecticut Department of Education, has steadfastly declined to allow both cisgender and transgender females to participate equally at post-season competitions.

How does Connecticut reconcile that its public institutions at college place a limit on transgender females' participation but not its high schools? One argument is that high school athletics is about maximizing participation. That is true and works well until post-season competition comes into play as discussed above. We recognize that making a critical medical decision about hormone therapy would be more difficult and perhaps unadvised at high school age than at college age, that testosterone is not the one and only hormone that results in physiological differences between males and females and that there is a wide range of testosterone levels within cisgender females. As such, requiring hormone therapy or regulating testosterone levels at the high school level may not be the best solution.

We also recognize that privacy concerns that are not present here due to the media coverage of the transgender females may also be implicated in the future if high school students prefer not to disclose their identity with their non-assigned at birth gender.

A decision needs to be made compassionately that protects both cisgender and transgender females rather than protecting only one group. Title IX has been in place since 1972 and women—cisgender and transgender—have fought hard to be treated equally. Every day that one person is not protected under Title IX is one day too long, and it results in lost opportunities that can never be recovered. The CIAC and state department of education need to resolve this issue now and err on the side of participation for all.