Gender Identity In Schools & Sports: Massachusetts

However, whether or not this protection includes gender identity remains unclear.

In the recent landmark Supreme Court decision Bostock v. Clayton County, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which protects against workplace discrimination on the basis of sex (2), includes protections for both sexual orientation and gender identity. This ruling opens up the gateway for all sex-based protections to apply to gender identity, including Title IX. While there is an argument that Title IX includes gender identity, others have used the same civil rights law to form a counter argument. 

In Connecticut, four cis women who participated in athletics in high school sued the Connecticut Association of Schools for allowing trans athletes (3) to participate in the sports teams best fitted with their gender identity. They argued that allowing trans women to compete against cis women violated their Title IX rights due to the trans athletes having a perceived “unfair” advantage in sporting events, making the cis women miss out on college and employment opportunities. 

The Connecticut Association of Schools however fought back, arguing that the claims of an unfair advantage were “blatantly false,” going further, stating that the cis women received college opportunities while the trans women did not, and that the cis women “outperformed” the trans women. This case happened after all those involved had graduated high school, deeming them “not being directly harmed by [trans inclusivity].”  The court found that no decision could be made, and the case was soon dismissed. 

Part 2: Myths & Testosterone

One of the biggest myths surrounding trans athletes competing in sports is the thought that they (mostly trans women) have an unfair physical advantage over cis athletes, due to their higher testosterone levels. But these claims are disputed by many, and as Katrina Karkazis from the Global Health Justice Partnership points out, “Testosterone is not the only factor that is important for an individual’s athletic performance. There are not only other physiological factors: that could be V02 max, heart size, any number of things. But there are factors that don’t have to do with someone’s physiology. Factors like nutrition, coaching, and equipment all play into an athlete’s performance. So it’s unclear how testosterone can be singled out as a defining factor.”

But as the American Civil Liberties Union (ACLU) points out, by banning trans athletes, the industry creates a world of gender policing, where women can be discriminated for being “too-masculine”. 

This infamously happened to two cis women in the 2016 Summer Olympics: Caster Semenya of South Africa and Dutee Chand of India. The two women naturally have high levels of testosterone and were both affected by the Olympics’ testosterone limit rule. Dutee Chand went to court after she was banned from competing due to her high levels of testosterone, and Caster Semenya also  challenged her ban. 

Part 3: Protections

Trans people in Massachusetts are currently protected under other anti-discrimination laws including protections for housing, credit, places of public accommodation (4), and sex-segregated facilities such as restrooms.

Part 4: College Protections 

As more and more students are moving towards college, it may also be important to know your rights when pertaining to such schools. For trans athletes who will attend public/state schools, you are protected under Title IX as well as all other anti-discrimination laws.

If you will be attending a private school that doesn’t receive any federal funding (5), Title IX does not apply to you and the school is allowed to do whatever they want. Furthermore, if your private school is religious, they don’t have to follow Title IX regardless of if they receive federal funding. 

However, in Massachusetts, a graduate school must still follow other anti-discrimination laws: 

“Since 2001, the MCAD has held that discrimination against transgender individuals could constitute sex and disability discrimination.”

“Examples of discrimination in an educational institution include: 

•  A graduate school refuses to admit a transgender man who applies when it learns from the applicant’s educational records that he previously identified as a woman. 
• A graduate school refuses to allow a transgender woman graduate student to serve as a resident assistant in a woman’s dormitory because she previously identified as a man.”

-Gender Identity Guidance, Massachusetts Commission Against Discrimination

Part 5: Final Statements 

It is still unclear what Massachusetts ruling for trans inclusivity in sports will be. Currently the Commonwealth runs on a school-by-school decision, meaning that each individual school gets to decide on whether or not to allow trans athletes to compete in their respective teams.

However, it is likely that a ruling in favor of trans inclusivity will soon be implemented, given other anti-discrimination laws in place, other states enacting their own rulings in favor of it, and the recent Supreme Court case. 

Footnotes: 

1 – Gender identity, as defined under Massachusetts law, “means “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” In essence, gender identity is a person’s internal sense of their own gender.”

2 – Title VII also protects people from discrimination on the basis of race, color, religion, or national origin. 

3 – Transgender, as defined under Massachusetts law, “is a term that is used to refer to a person whose gender identity is different from that person’s assigned birth sex. The person knows that the gender typically associated with their body does not match who they know they are inside. For this reason, many transgender people transition and live as the gender they know themselves to be.”

4 – Public accommodations, as defined under Massachusetts law, “include businesses that are open to and serve the public. They include any place “which is open to and accepts or solicits the patronage of the general public,” regardless of whether it charges for products, goods, services, or admission. A place of public accommodation may be publicly or privately owned or operated. Examples of public accommodations include, but are not limited to: hotels, stores, restaurants, theaters, sports stadiums, health and sports clubs, hospitals, transportation services, museums, libraries, and parks.”

5 – Because of the Civil Rights Restoration Act of 1987, any “entity” that receives federal funds must comply with civil rights legislation. Many schools receive federal funding for a number of reasons including free meals and financial aid.