Transgender boys and girls in high schools across New York soon could find it easier to compete on either the boys or girls teams, whichever aligns with their gender identity.
New York is by no means the first state to take action, but the Empire State would be among the most inclusive, experts say. Guidelines to be voted on later this month — setting out procedures for a biological male who transitions to female to try out for and play on a girls team and vice versa — ask schools to obtain minimal documentation on a student’s gender identity. A note from a parent, guardian or medical professional will do.
“This is to provide our members guidance,” said Robert Zayas, executive director for the New York State Public High School Athletic Association. “It is by no means a mandated requirement.”
Standard eligibility requirements would apply. Decisions on that and accommodations would be left up to individual schools or districts, with appeals (by the student or opposing teams) to the state education commissioner.
Thirty-seven states have thus far adopted some form of transgender inclusion policy for athletics.
The state association’s Central Committee meets July 28-30 in Tarrytown, Westchester County. The guidelines require notice to the state only if accommodations are needed. While in discussion for roughly a year, the scheduled vote comes on the heels of Gov. Andrew Cuomo blasting the state Department of Education for failing to take required action to protect transgender students from discrimination. The department sent draft guidelines to the Board of Regents in April, with plans to finalize those before the start of the school year.
Statewide, there currently are 10 or 12 transgender student-athletes known to high school officials, Zayas said. Estimating the transgender population is difficult, as the U.S. Census Bureau does not ask about gender identity. But it is precisely because they are apparently few in number that they are both targeted for discrimination and overlooked when it comes to inclusion, experts say.
Sports has struggled with the issue of inclusion since Renee Richards, a professional tennis player and biological male, underwent sex reassignment surgery and successfully sued the United State Tennis Association after being denied entry to the 1976 U.S. Open as a woman. Attention and awareness has intensified around Caitlyn Jenner and her public transition in recent months. The 65-year-old, who won the decathlon at the 1976 Summer Olympics as Bruce Jenner, received the Arthur Ashe Courage Award at Wednesday’s ESPYs.
During her acceptance speech, she took a moment “to acknowledge all the young transgender athletes who are out there, given the chance to play sports as who they really are.”
Changing mindsets regarding gender identity in high school sports embroiled Minnesota in a months-long divisive debate last year during which opponents ran full-page ads in local newspapers, suggesting it might be the end of girls sports and asking: “A male wants to shower beside your 14-year-old daughter. Are you OK with that?”
The Minnesota State High School League, on an 18-1 vote, nevertheless adopted a policy in December similar to what is proposed in New York. Thus far, the state has not had a single openly transgender high school athlete, said David Stead, the league’s executive director.
Other states, like Oklahoma and Oregon, require biologically male students identifying as female to have completed some period of hormonal therapy. Six states have policies requiring hormone use, surgery and/or a change in the student’s birth certificate, regulations that Chris Mosier, founder of TransAthlete.com, considers discriminatory.
But the fact New York will see accommodations made on a school-by-school basis, as Zayas explained, remains a concern for Mosier — as the application of the guidelines, and thus the access, is certain to be uneven.
While saying New York’s proposal could be one of the more inclusive in the nation, Mosier had reservations about the non-binding nature of the guidelines: “It still puts students at risk of being unable to participate based on their school district.”
Here, as elsewhere, there are certain to be questions. How will accommodations be made? What is appropriate? Are there legitimate safety concerns when it comes to contact sports? Could there be situations of athletic advantage, and how should those be addressed?
New York has a policy regarding mixed competition (when separate men and women’s teams don’t exist) that suggests denying participation to the crossover student if it means cutting a student whose biological gender is that of the team. Other factors for concern include if the crossover student’s athletic ability falls short of or exceeds that of teammates, “thereby creating a hazardous condition or unfair advantage.”
For now, officials say, the discussion has largely been about accommodations. When it comes to these and other concerns, appeals should be filed to the state education commissioner.
“It’s not enough for us to pass a policy or recommendations without thinking through what the experience will be like for transgender students who go through the process to play sports consistent with their gender identity,” Mosier said. “We need to be thinking about facilities access, team uniforms, language used by coaches and players, and providing education to the school community around transgender identity.”
Muted praise came from the New York Civil Liberties Union, whose Dignity for All? report last month documented a grim outlook for transgender students in New York schools.
“The new guidelines … are a welcome step forward for the many transgender youth who have been outright prohibited from playing on sports teams just for being who they are,” NYCLU executive director Donna Lieberman said in an emailed statement. But she raised concern that “requiring transgender students to submit documentation confirming their gender identity will discourage many students from playing sports, denying them important ties to their school communities.”
State officials say the guidelines are purposefully general, meant to be flexible, a recognition of the inherent complexities with students in varying stages of transition and how they identify, different sports presenting a host of unique issues, and the disparity in facilities that can exist across districts.
“In New York, we have 11 diverse sections, and it is always interesting to look at how different things are,” Zayas said. “The athletic councils are different. Sometimes the mentality on issues are different. And the needs are different. It is almost like we have 11 different states.”
Initially, at least, the conversation should be the same.
“The very first thing you have to address is: ‘What is it the athlete wants?’ ” said Pete Shambo, president-elect of Section V Athletics and athletic director for the Penfield Central School District.
This will be the second school year in which Penfield was aware of at least one transgender athlete participating. Lacking state guidelines, Shambo said, school officials researched national policy. Ultimately, it came down to what the athlete and the athlete’s parents thought was appropriate and requested. Where the student is at in his or her transition is a factor. So far, he said, the athlete or athletes in question have continued to play on the sports team that matches their biological gender.
More than likely, he said, it will be those instances where students transition from male to female that will cause the most debate.
“What perceptions are and what (others) feel their needs are, that is the tougher conversation,” Shambo said. “It is an open-ended thing, where everyone has an opinion on what should take place with that athlete because of their own convictions.”
Harvard swimmer Schuyler Bailar has grabbed headlines of late, being a star recruit for the women’s swim team now competing for the men. In news reports, he is described as one of the first openly transgender swimmers in the NCAA. The first likely was Jay Pulitano, who swam three years for the women’s team at Sarah Lawrence College, a Division III school in Bronxville, Westchester County, and swam for the men during his senior season last year.
Paul Blascovich is the sports information director and compliance coordinator at Sarah Lawrence. Last year, he presented on the topic of transgender athletes to colleagues in the Eastern College Athletic Conference, the nation’s largest and only multi-divisional conference with about 300 member institutions. The lesson would seem basic: Use the name and pronoun the athlete prefers. Respect privacy. When you don’t understand or know something, ask.
This remains an area where practice and procedure is evolving.
When it came to the swimmer, the school had to seek NCAA exception to a rule stating that men’s swimsuits could not go above the waist. Language on the outdated forms, however, had the school petitioning for a disability.
In other cases, a biological woman in transition might begin taking testosterone, which is a banned substance under the NCAA rules and would make the athlete ineligible to compete on a women’s team. Conversely, the NCAA requires that an athlete who transitioned from male to female must take testosterone suppressants for one year before competing on a women’s team, a requirement said to be in keeping with an effort to preserve women’s sports.
Sarah Lawrence, a one-time all-women college with enrollment that still tilts more than 3-to-1 female, has had several transgender athletes but, so far, none who transitioned from male to female.
“The biggest push on the activism side is we cannot move forward in fear of hypothetical problems,” Blascovich said. “I think that is why some of the high schools have put some of these really stringent guards in place, to make sure there are enough hurdles. … But we are finding that those hypothetical problems are not coming to fruition.”