Professional Documents
Culture Documents
Kristen Surla
Introduction
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
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.
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.
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
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
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.
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
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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team, but is no longer eligible to compete on a women’s team without changing that
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
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
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
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.
A school may not, however, adopt or adhere to requirements that rely on overly broad
other students of the same sex (i. e., the same gender identity) or others’ discomfort with
based on sound, current, and research-based medical knowledge about the impact of the
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
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
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
transgender individuals; and the case halts the federal implementation of Title IX protection for
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,
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).
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
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
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
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
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
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
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)
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
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
(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
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