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Running head: THE PLAYING FIELD WAS NEVER EQUAL 1

The Playing Field Was Never Equal

Kristen Surla

Loyola University Chicago


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Introduction

As an increasing number of transgender people choose to live their lives authentically in

schools, workplaces, and the general public, we must revise the various ways our current binary

gender system works to exclude them. Frequently, definitions of gender and sex are conflated

under the same definition within legal systems in the United States. However, this previous

interpretation does not acknowledge transgender experiences as people whose gender identity

differs from their birth designated sex. One important piece of legislation includes Title IX of

the Education Amendments Act of 1972, a federal law prevents gender based discrimination in

institutions of education and workplaces. Specifically, Title IX states, “No person in the United

States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or

be subjected to discrimination under any education program or activity receiving Federal

financial assistance” (Education Amendments Act of 1972). In May 2016, the United States

Department of Justice issued a note outlining “significant guidance” under Title IX’s protection

for transgender individuals. Although this letter is a move to support trans students, it does not

hold the power of law to hold institutions accountable for discriminatory actions or behavior.

As individuals whose identity and experiences directly challenge conventional assumptions of

gender, transgender people have caused institutions of higher education and governmental bodies

to reconsider Title IX protections in areas such as sports, residential life, facilities, and

admissions. Participation in collegiate athletics is one example of how colleges and universities

have worked to expand the gender binary and introduce new policy. Historically, collegiate

sports have been divided by men’s and women’s sports teams, but, recently, large athletics

organizations have developed policies to include trans students. The National Collegiate

Athletics Association (NCAA) released the NCAA Inclusion for Transgender Student Athletes
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Policy in 2011 outlining their requirements for trans student participation in NCAA teams.

Working in alignment with Title IX recommendations to allow students to participate based on

gender identity, the NCAA trans inclusion policy creates one opportunity for inclusion of trans

athletes. The impact of these two policies are directly related to the inclusion, well-being, and

development of transgender students in higher education. Although both Title IX and the NCAA

Trans Inclusion Policy provide an entry point for many institutions to protect trans students, the

policies are still fairly new and operate as “significant guidance” rather than federal law. This

policy analysis analyzes how the current forms of Title IX and the NCAA Inclusion for

Transgender Student Athletes policy currently ensure protection for the physical and

psychological safety of trans students in higher education.

Defining Sex & Gender

Historically, the United States has organized social activities, facilities, and institutions upon a

binary gender system designating people as either male or female. Some prominent examples of

gendered categories include: sports, public restrooms, and participation in sororities/fraternities.

The division of activities by gender is rooted in misguided historical assumptions and

inequalities that privilege men and prevent rights to women (Catalano, 2015; Harris, 2008). The

legal designation of someone as either male or female, is not a right or decision given to an

individual. Instead, the definition of one’s “sex” is based in a medical doctor’s assessment upon

birth of one’s sex, or physical characteristics including genitalia and hormones (Catalano &

Shlasko, 2013). Sex and gender are oftentimes conflated, despite their two distinct meanings.

Sex refers to someone’s designated categorization as either “male” or “female” at birth, whereas

gender refers to one’s own sense of self as male, female, trans, bi-gender, agender, and many

more categories (Catalano & Shlasko, 2013). In the current binary gender system, cis-gender
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people whose gender identity aligns with their birth designated sex, are most privileged through

law and social interactions. Transgender and gender non-conforming people whose gender

identity differs from their birth designated sex are, unfortunately, subject to increased amounts of

systemic and interpersonal discrimination (Catalano, 2015; Catalano & Shlasko, 2013; Dugan et

al., 2012). An example of transgender oppression outlined by the American Civil Liberties

Union (ACLU) includes, “your validity as a man/woman/human is not based on how much

surgery you’ve had or how well you ‘pass’ as non-transgender” (ACLU, 2016, p. 1). This

example brings attention to the enforcement placed upon trans people to fit into the male-female

gender binary. If a person is not able to “pass” for either male or female, their physical safety

could be threatened and gender identity be perceived as illegitimate. The issue of pressuring

trans people to “fit in” as either male or female is directly seen in the current NCAA trans

inclusion guidelines.

Addressing Sex & Gender in Collegiate Athletics

Although the Dear Colleague Letter and NCAA Trans Inclusion Policy promote inclusion

for transgender people, the policies also function to ensure the athletic commitment to “fair and

equal play.” The major barrier to the full inclusion of trans people in athletic teams aligning with

their gender identity is the concern that trans women (male to female) athletes may have an

unfair advantage over cis gender women because their physical and biological characteristics

may give them a competitive edge (NCAA Transgender Issues Handbook, 2011). To remedy

this concern, the NCAA has determined the following two requirements for trans athletes

competing in collegiate athletics:

1. A trans male (FTM) student-athlete who has received a medical exception for

treatment with testosterone for diagnosed Gender Identity Disorder or gender dysphoria
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and/or Transsexualism, for purposes of NCAA competition 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. 


2. A trans female (MTF) student-athlete being treated with testosterone suppression

medication for Gender Identity Disorder or gender dysphoria and/or Transsexualism, for

the purposes of NCAA competition 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 (NCAA Transgender

Issues Handbook 2011).

As shown above, the two NCAA requirements allow trans students to participate in teams in

accordance with their gender identity, but stipulate specific requirements related to medical

diagnosis and hormone treatment. In many ways, there was never an “equal” playing field for

transgender students who are targeted and marginalized from collegiate athletics. While there is

no longer a regulatory barrier preventing a trans athlete to participate in a sports team in

accordance with their gender identity, the issues of medical transition, affordability, and

transmisogyny make it unclear whether the NCAA Trans Inclusion Policy ensures the

psychological and emotional safety of trans athletes. Instead of providing support and

streamlined processes for trans athletes to play in NCAA sports, the policy creates more

requirements making it difficult for transgender athletes to play at all.

Confronting Transmisogyny in NCAA Trans Inclusion Policy

The requirement for transwomen or male-to-female athletes to complete hormone

suppression for one year prior to official NCAA competition is based on the belief that the

physical characteristics, biology, and athletic abilities of men are inherently superior (Sinisi,
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2012). Because male-to-female transwomen previously occupied the privileged status of a male

body, the assumptions and stereotypes of male athletes continues to apply to them according to

the NCAA. However, the same hormone regulation does not apply to female-to-male transmen

competing in NCAA sports. Transmen are allowed to participate on men’s teams immediately

after starting hormone treatment (NCAA Transgender Issues Handbook 2011). The unequal

requirements for transmen and transwomen is a potential area of discrimination under Title IX.

According to current Title IX policy for athletics:

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. Title IX does not prohibit age-appropriate, tailored requirements

based on sound, current, and research-based medical knowledge about the impact of the

students’ participation on the competitive fairness or physical safety of the sport.

(Education Amendments Act of 1972)

The argument of competitive fairness masks both sexist and transmisogynistic claims that

privilege the athleticism of the cisgender male body. In their policy for trans student athletes, the

NCAA publicly refuted stereotypes attributing athletic superiority to solely birth designated sex

and claims that all people, cis gender and trans, hold, “…a great deal of natural variation in

physical size and ability” (NCAA Transgender Issues Handbook 2011). The current Title IX

discussion of transgender stereotypes paired with the statement on stereotypes in the NCAA

trans inclusion policy present a policy paradox (Stone, 2012). Although the Department of

Education, Department of Justice, and NCAA all acknowledge the impact of stereotyping

transwomen, the policy still includes an unjust requirement affirming these misconceptions.
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The NCAA trans inclusion policy and Title IX approach fairness and justice through a

sense of physicality and physical safety. However, the physical safety is not referring to the

well-being of transwomen, but the potential “threat” to fairness and safety for the cisgender

women playing alongside or against transwomen. The logic of “fair play” utilizes the symbolic

tactic of what Stone (2012) refers to as “stories.” According to Stone (2012) stories include,

“narratives with heroes and villains, problems and solutions, tensions and resolutions” (Stone,

212, p. 159). In the case of transwomen in collegiate athletics, transwomen are described as the

villains and cisgender women are the victims. As a result, the NCAA, through their Trans

Inclusion Policy, are seen as the heroes who restore a sense of safety to the cisgender women

who encompass the majority of women’s athletics. Although the presence and visibility of

transgender athletes is one the rise (Buzuvis, 2013; Sinisi, 2012; Welden, 2011), they remain a

miniscule minority within athletics at large. If Title IX and the NCAA Trans Inclusion policy

are truly interested in protecting the well-being of transwomen, their regulations should reflect

the intent to include and protect transwomen, rather than quell anxieties concerning their

participation in the sport.

Federal & State Interactions

Title IX holds all institutions that receive federal funding accountable for abiding by non-

discriminatory policies for sex and gender based discrimination. However, gender identity, as it

applies to transgender people is not currently a legally protected category under Title IX, but an

administrative guidance. Despite the federal government’s effort to secure protection for

transgender people, states hold their own nondiscrimination policies that may or may not include

transgender identity. Currently, Texas, Alabama, Arizona, Georgia, Louisiana, Maine,

Oklahoma, Tennessee, Utah, West Virginia and Wisconsin vs. the United States (2016) a federal
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court case filed in the northern District of Texas, is contesting the federal mandate issued in the

Dear Colleague Letter due to a violation of the due to their failure to comply with the

Administrative Procedures Act giving states prior notice and reason to the federal mandate.

Additionally, Texas et al. vs. U. S. brings attention to the tension between federal and state

legislation. Currently, only 19 states have clear anti-discrimination policies protecting

transgender individuals; and the case halts the federal implementation of Title IX protection for

transgender people and continues to place them at risk nationwide.

Previous legislation protecting trans people from discriminatory practices in the

workplace have been based on the definition of sex and its relationship to gender nonconformity

(Buzuvis, 2013; Welden, 2011). For example, in the case of Smith vs. the City of Salem, the

court ruled that gender-non conformity with one’s sex could not be a cause for discrimination.

The plaintiff, at the time, was employed as a male and began transitioning to female at the

workplace. The court found the City of Salem responsible for discrimination because the

plaintiff, who the court considered male, did not conform to male gender standards. The

justification for this case was upheld due to a previous federal court case, Price Waterhouse vs.

Hopkins where a cisgender woman did not receive a promotion for being “too aggressive,” a trait

that does not conform with female standards of gender behavior. These arguments present two

major problems: (1) the maintenance of a cisgender definition that privileges sex over gender

identity (2) lack of protection for trans people after choosing to physically and/or socially

transition. While there have been Title IX cases that ruled in favor of trans people, the

arguments required the plaintiff’s birth designated sex to be the determining factor over whether

or not they received protection. For trans people who socially and /or physically transition,

having protection under the category of gender identity is essential.


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State protections and legal requirements to recognize transgender people directly impact

the NCAA Trans Inclusion policy. Because Title IX’s jurisdiction for trans students does not yet

extend nationwide, each state is not required to implement and can interpret the NCAA Trans

Inclusion policy at their discretion. In order to legally recognize a person as transgender, most

states require a gender marker and name change on official documentation. These processes can

discourage trans athletes from continuing in athletics due to limited financial and medical

resources preventing them from the official gender marker/name change process (Skinner, 2013).

Not only do transgender student athletes have to undergo medical treatment to compete, but they

must also endure legal procedures that can be costly and psychologically triggering.

Transgender people may becoming more visible in recent years, but the prevalence of trained,

informed professionals on transgender experiences are few and far between. In working with

increasing numbers of transgender students, colleges and universities will be expected to take

more responsibility in providing adequate resources for them (Dugan et al., 2012).

What Can Colleges and Universities Do?

Student affairs professionals and administrators play a critical role in shaping

comfortable environments for trans students to thrive and wholly participate in campus culture

(Bilodeau, 2013; Catalano, 2015). Institutions of higher education have a longstanding history in

gender based discrimination which preventing women from attending the same colleges,

activities, and professional opportunities as men. Policies such as Title IX have worked to

largely address these forms of discrimination, but the process to change oppressive ideology and

actions is slow. Transgender students in higher education suffer from direct discrimination as

well as the invisibilization of their experiences.


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The threat to transgender students well-being physical and psychological well-being is to

an almost daily occurrence. As people who do not conform to the binary gender system in which

our institutions, facilities and activities are organized, transgender people challenge society to

expand notions of gender identity. College campuses are a dynamic site for potential social

change to support transgender students. Catalano (2015), refers to the process of supporting

trans students as an act of liberatory consciousness (Catalano, 2015). Through this framework,

everyone is held responsible for support trans communities. Catalano (2015) encouraged higher

education professionals to see that:

A liberatory consciousness provides opportunities for individual events to raise

awareness, to engage in analysis, to shape actions, and to examine accountability.

Inclusivity practices, policies, pedagogies, and engagement look different at each

institution based on location, demographics, student services, academic

collaborations, institution type, and other factors; developing a liberatory

consciousness requires people, as individuals and in their institutional roles, to ask

themselves and their colleagues about goals that support trans∗ people, and then

ask how they can do it better. There is no “one size fits all” approach to

institutional change, and each college and university must consider specific

institutional dynamics, limitations, and structure. (p. 4)

In the spirit of Catalano’s (2015) concept of liberatory consciousness, I recommend institutions

of higher education to provide mandatory general trainings for faculty and staff on procedures

for working with trans students. These trainings should reintroduce the concept of gender to

include trans and gender nonconforming people. Additionally, the trainings should be practically

focused so all staff members understand common processes such as changing preferred names
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and pronouns on student records. Many institutions include sections on transgender student

experiences in general “Safe Space/Ally” Trainings that encompass both sexuality (lesbian, gay,

bisexual, queer) and gender identity. However, specific and differing issues of these various

communities should not be lumped into one training. A specified training on gender identity is

not only helpful to trans students, but can be a beneficial resource to breaking down harmful

notions of behavior within a gender binary for cis gender people as well (Harris, 2008).

While federal legislation to protect trans students is still pending, institutions must create

and make visible their own policies related to gender inclusion and discrimination on campus.

By taking their own stance on gender based discrimination, institutions are sending a powerful

message about how they support trans students on their campuses. A clear non-discrimination

policy and commitment of support could attract future prospective students who are trans and

gender non-conforming. Rather than being “followers” of a federal mandate, institutions that are

proactive about their policies have the potential to be national leaders in the field of gender

inclusion. The reality of nationwide anti-trans discrimination and harassment is a current fear for

trans students and their families. Currently, only 19 states have fully committed to trans

nondiscrimination policies (ACLU, 2016). Colleges and universities have the power to step in to

act as protected spaces for trans people in college. While a trans student may not be physically

or psychologically safe in their state due to lack of legal protection, colleges can ensure their

safety by writing clear policies and pursuing disciplinary action in incidents of bias. At their

foundation, many institutions of higher education are their commitment to preparing students to

be active and critical contributors to the U. S. democracy (Stone, 2012). By actively supporting

trans students through policy, higher education can play a largely influential role in modeling

and advocating for the inclusion, rights, and well-being of trans people.
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NCAA Recommendations

This issue of transgender student athletes presents a larger conversation about the relationship

between sports, activism, the market in higher education and policy. Over the past year, college

and professional sports teams have used their positions to take a stance to support social

movements such as Black Lives Matter and the removal of HB2 in North Carolina. In the fall of

2015, Black football players at the University of Missouri (Mizzou) refused to play until the

President, Timothy M. Wolfe resigned from his position. Following weeks of protest by student

activists, community members, and the support of the football team, the Wolfe resigned from his

position. In a similar predicament, Governor Pat McCrory of North Carolina dropped the case

continuing the discriminatory HB-2 Law in North Carolina. According to NPR, “Gov. Pat

McCrory cited ‘substantial costs to the State’ as one reason for dropping his lawsuit against the

federal government, writing that it did not serve the ‘interests of judicial economy and

efficiency” (Herscher, 2016). The announcement from Governor McCrory followed the

withdrawal of all NCAA games from North Carolina for the upcoming year because HB-2 was

not in accordance with the trans inclusion policy for transgender student athletes. Oftentimes

seen as a politically neutral field predicated in “fairness,” athletics and athletes have established

themselves as significant power players impacting state, federal, and university policy.

The NCAA has already taken a huge step towards the protection and support of

transgender student athletes. However, I encourage the NCAA to revise the existing NCAA

Inclusion for Transgender Student Athletes policy to stop the hormone requirement for

transwomen, develop a clear disciplinary statement for players who harass transgender student

athletes, maintain privacy of trans students by not communicating trans status with opposing

team. The argument of “fair and equal play” that requires transwomen to participate in hormone
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suppression for one full year prior to competition unjustly forces the physical transition of

transwomen. The NCAA acknowledged this difficult decision to transition in the policy that

stated,

…the decision to transition from one gender to the other—to align one’s external

gender presentation with one’s internal sense of gender identity—is a deeply

significant and difficult choice that is made only after careful consideration and

for the most compelling of reasons. Gender identity is a core aspect of a person’s

identity, and it is just as deep seated, authentic, and real for a transgender person

as for others. Male-to-female transgender women fully identify and live their

lives as women, and female-to-male transgender men fully identify and live their

lives as men (NCAA Transgender Issues Handbook 2011, p. 7)

By requiring transwomen to undergo hormone suppression for one year, the NCAA accepts

misguided gender stereotypes that assume men inherently possess greater athletic skill and

ability. Additionally, this requirement encourages the active policing of transwomen’s bodies

disguised through a medical regulation.

Placing extra regulations upon transwomen’s participation in collegiate sports to address

the concern that men may fraudulently play on women’s teams in order to compete is deeply

troubling. Instead of penalizing and targeting transwomen, I recommend the NCAA to rewrite

their policy to include a process for adjudication for athletic fraud for people who are

intentionally posing as another gender to gain a physical advantage. It is imperative for NCAA

to refute rhetorical strategies that create anxiety around the participation of transgender athletes

and instead convey the many assets trans players bring to campus. Cisgender athletes should

adopt the idea that transgender athletes are “a part of the team.” The NCAA can simultaneously
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enforce this logic and protect transgender individuals by creating a disciplinary process for

people directing harassment against trans athletes. In rewriting the policy, NCAA policymakers

should use the concept of security to give psychological reassurance and comfort (Stone, 2012)

to both transgender and cisgender athletes.

Finally, the privacy of a transgender athlete’s status must not be compromised through

requirements to notify the opposing team and “outing” the student. Although well-intentioned,

the process of outing a trans student has psychological repercussions beyond the control of the

NCAA. The continued attention brought to a student athlete’s trans status may remind them of

being an “other” on the team that consistently needs to be accommodated. By notifying the other

team, the student’s personal information could incite transphobic behavior and attitudes that

could compromise the game. I recommend the NCAA to only notify an opposing team when

necessary, in case of emergency and with the consent of the trans student.

Federal Recommendations

As the entity with the most power in creating overarching protections for trans students,

the federal government must prepare an action plan against pushback against the May 2016 Dear

Colleague Letter. In upcoming federal court cases that refute the extension of Title IX to protect

gender identity and transgender individuals, the federal government must make a strong case for

the universal protection of all people regardless of gender identity. Until then, transgender

people will continue to live in fear and “in the closet” because of their denial to full protection

under the law. When Title IX becomes extended to gender identity, the federal government must

then create regulations for each school to ensure the campus community is aware of the meaning

of gender based discrimination. These educational opportunities could include workshops for all

incoming first year students and employees and trainings for all university employees on bias
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incident reporting on gender identity. Since Title IX protections for transgender people is still a

new phenomenon, I encourage the Department of Justice and Department of Education to collect

comprehensive data on the experiences of transgender students and gender based discrimination

at colleges and universities across the United States.

Conclusion

The concern over “fair and equal play” in NCAA Athletics and transgender student

athletes assumes the idea that transgender students already had an equal chance to full

participation on college sports teams. Despite recent attempts to extend protection and rights to

trans athletes through the Department of Education and Department of Justice’s Dear Colleague

Letter and NCAA Policy on Inclusion of Transgender Athletes Policy, trans student athletes

continue to under both systemic and interpersonal discrimination. The medical regulations for

transwomen athletes, outing of trans students, and lack of protection for gender identity under

Title IX outline some inequalities faced by trans students due to policy problems. Tackling these

issues requires a multi-layered approach and commitment to fostering a liberatory consciousness

(Catalano, 2015). To ensure the physical and psychological protection of transgender student

athletes, I propose the Title IX to legally extend protected status of gender identity/transgender

people, the termination of hormone suppression therapy requirement for trans women, the

termination of “outing” players to opposing teams, and the development of institutional policies

and procedures to combat gender discrimination in colleges and universities. Through the

implementation of these policy recommendations, I hope to uncover the myth of “equal play” in

collegiate athletics and expose gender discrimination currently working against the inclusion of

transgender student athletes.


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