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Trump Administration puts its thumb on scale in transgender student athlete dispute

The U.S. Education Department’s Office for Civil Rights has reportedly ruled that a Connecticut policy allowing transgender student athletes to compete in girls sports violates the civil rights of “female” athletes. 

Chelsea Mitchell Terry Miller transgender athlete Connecticut
Canton High School’s Chelsea Mitchell, left, beat Terry Miller of Bloomfield, Conn., center, on Feb. 14 in the CIAC Class S track and field championships at Floyd Little Athletic Center in New Haven, Conn.
Photo by Christian Abraham, Courtesy of CT Post, Hearst Connecticut Media, used with permission.

UPDATE 9 p.m. May 28, 2020: In an updated report, the Associated Press removed some of its problematic language — now calling the athletes at the center of this dispute “transgender girls,” for example — and added new information, which is reflected below.

ORIGINAL REPORT:

A report by the Associated Press says the Office for Civil Rights in Secretary Betsy DeVos’s Department of Education has ruled against Connecticut’s policy, which allows transgender student athletes to compete in girls sports, calling it a violation of the civil rights of “female athletes.”

The AP obtained the ruling Thursday, but its report contains several inaccuracies that need to be pointed out. First, regarding the phrase, “female athletes:” trans girls are girls and trans women are women. According to a federal judge hearing a related case, athletes who identify as female, and are transgender, are “transgender female athletes.” What the AP should have written was “cisgender female athletes,” since cisgender is a word that means, “not transgender.”

Second: the decision is indeed in response to a complaint filed last year, but it was not made by “several female track athletes;” it was filed by three cisgender high school girls and their families, represented by the Alliance Defending Freedom, a far-right Christian advocacy law firm labeled an extremist anti-LGBT hate group by the Southern Poverty Law Center, for its predatory practices targeting LGBT Americans. You would think that might be worthy of mentioning.

The ADF argued in its complaint that two Connecticut trans girls who were “identified as male at birth,” which is how the AP described Andraya Yearwood and Terry Miller, had an unfair physical advantage. The ADF wants to call these two young women “male,” so much so that they have asked the federal judge hearing a civil rights lawsuit on this issue to recuse himself.

According to the AP report, the Office of Civil Rights said in a 45-page letter that it may seek to withhold federal funding from Connecticut over the policy.

Let’s take a moment to recall that the Washington Post and others have reported on how the DOE has taken a strong right turn in how it handles complaints ever since President Trump put DeVos in charge, and rolled back protections for transgender students nationwide.

Now, about the OCR’s threat to Connecticut, which does not control the Connecticut Interscholastic Athletic Conference. DeVos, her officers and the ADF are targeting a private, not-for-profit, 501(c)3 organization, as well as several Connecticut school boards that participate in scholastic sporting events run by the CIAC.

But let’s play along for a moment: if the feds were to make good on their threat to withhold funding from the state, how much of a hit would that be? Ballotpedia says the feds provided Connecticut with $6.3 billion in 2014, which was 24.6% of the state’s general revenues. We can only imagine how desperate that federal money is needed now, in 2020, during a pandemic.

The CIAC policy in question dates back to 2013 and allows transgender athletes to participate as the gender with which they identify. According to the AP, the DOE ruled that the policy is a violation of Title IX, the federal civil rights law that guarantees equal education opportunities for women, including in athletics. Which is ironic, since it’s Title IX that is cited by the CIAC as providing trans student athletes “the opportunity to participate with the gender of which they identify.”

The DeVos-controlled Office of Civil Rights is quoted by the AP in a letter, which it reported is dated May 15, as accusing the CIAC of having ‘’denied female student-athletes athletic benefits and opportunities, including advancing to the finals in events, higher level competitions, awards, medals, recognition, and the possibility of greater visibility to colleges and other benefits.’’

The CIAC, which oversees scholastic sports in the state, has said its policy is designed to comply with the state’s law barring schools from discriminating against transgender students, and said so again in a statement to the AP:

“Connecticut law is clear and students who identify as female are to be recognized as female for all purposes — including high school sports,” the conference said. “To do otherwise would not only be discriminatory but would deprive high school students of the meaningful opportunity to participate in educational activities, including inter-scholastic sports, based on sex-stereotyping and prejudice sought to be prevented by Title IX and Connecticut state law.”

Roger Brooks, the lead attorney for the Alliance Defending Freedom in federal lawsuit, told the AP in a statement: “Around the nation, districts are going to want to be reading this, because it does have legal implications,” he said. “It is a first decision from the agency charged with enforcing Title IX addressing the question of whether males on the playing field or on the track are depriving girls of opportunities consistent with Title IX.”

Outsports reached out to the American Civil Liberties Union, which represents Yearwood and Miller in the federal lawsuit; they have sought to be party to the suit against the CIAC and school boards in Glastonbury, Bloomfield, Hartford, Cromwell, Canton, and Danbury. ACLU Attorney Chase Strangio, deputy director for trans justice with the ACLU LGBT & HIV Project, provided this statement:

“All that today’s finding represents is yet another attack from the Trump administration on transgender students. DeVos’s Department of Education is wrong on the law and we will continue to defend transgender students under Title IX and the Constitution. Trans students belong in our schools, including on sports teams, and we aren’t backing down from this fight.”

In its letter, the OCR reportedly said it will ‘’either initiate administrative proceedings to suspend, terminate, or refuse to grant or continue and defer financial assistance’’ to the CIAC and those districts or refer the cases to the U.S. Department of Justice, which also has rolled-back protections for transgender Americans since President Trump was elected.

Connecticut State Rep. Jeff Currey, who represents East Hartford, Manchester and South Windsor, told Outsports he believes this threat is “pathetic” and an example of “bullying.”

“The U.S. Department of Education’s Office of Civil Rights’ decision concerning the rights of trans athletes comes as no surprise given the Trump Administration’s repeated attempts to strip LGBTQ+ people of equal rights and protections. The threat to withhold federal funding for violating Title IX is nothing more than a pathetic attempt to bully the CIAC and state into accepting the Administration’s narrow interpretation, which pushes trans and non-binary athletes into silence,” said Rep. Currey. “I applaud the CIAC and their members for taking a position that respects and values all of our student athletes and their educational opportunities, and for supporting policy that ensures athletes like Terry and Andraya can have dignified high school athletic careers.”

Sam Brinton, Vice President of Advocacy & Government Affairs for The Trevor Project, which is the world’s largest suicide prevention and crisis intervention organization for LGBTQ young people, also weighed-in:

“Title IX was meant to ensure that gender would never be a barrier to opportunity in our nation’s schools; this decision by the administration to use it instead to exclude transgender athletes completely warps this landmark civil rights law into a tool of discrimination. At The Trevor Project, we hear directly from transgender and nonbinary youth who only want to be included as who they are. They don’t deserve to be sidelined by their federal government.”

Another important thing to note: In referencing the “two transgender sprinters, Terry Miller and Andraya Yearwood,” AP reporter Pat Eaton-Robb wrote that they “have frequently outperformed their competitors, winning a combined 15 girls state indoor or outdoor championship races since 2017,” and cited the ADF’s lawsuit as a source for that information. Has anyone even thought to mention that Miller and Yearwood didn’t win every race they competed in? Also, Eaton-Robb declined to cite the ACLU’s response to transphobes like the ADF: “Four Myths About Trans Athletes Debunked, which specifically says:

“FACT: Trans athletes do not have an unfair advantage in sports.”

“Trans girls are girls.“

And “Trans people belong on the same teams as other students.”

The AP did note that the ACLU attorneys representing Yearwood and Miller have argued that both are undergoing hormone treatments that have put them on an equal footing with the girls they are competing against. And Eaton-Robb did mention that one of the plaintiffs, Chelsea Mitchell, won two state indoor title races over Miller this year.

When contacted by the AP, Mitchell called the ruling “liberating,” and didn’t reference the fact she hasn’t lost to a transgender student athlete since January.

“It feels like we are finally headed in the right direction, and that we will be able to get justice for the countless girls along with myself that have faced discrimination for years,” she said. “It is liberating to know that my voice, my story, my loss, has been heard; that those championships I lost mean something.”

It’s important to highlight that these cisgender girls and their ADF lawyers have asked a federal judge to not only block Miller and Yearwood from competing, but to erase all records set by them. They want to rewrite history.

Of course, both trans athletes, and two of the three plaintiffs, are high school seniors about to graduate and their spring track meets were canceled because of the COVID-19 pandemic. So the lawsuit is more about setting a precedent than about these girls in particular.

Another important point: Connecticut is one of 18 states, along with Washington, D.C. that allows high school athletes who identify as trans to compete without restrictions. Eaton-Robb cited the excellent site Transathlete.com, although forgot to credit the trans athlete and advocate who created it, Chris Mosier. His site tracks state policies in high school sports across the country.

Lastly, the AP writer did note that “several other states have policies barring the participation of transgender athletes” — and dozens more states are trying to pass such bans, according to the legislative tracker run by Freedom for All Americans — and made mention of Idaho recently becoming the first state in the U.S. to enact a law banning transgender women — and we must add, trans girls, too — from competing in women’s sports.

As Eaton-Robb wrote, the ACLU and Legal Voice filed a federal lawsuit contending that law violates the U.S. Constitution because it is discriminatory and an invasion of privacy. And you can hear the plaintiff in that suit, 19-year-old trans athlete Lindsay Hecox of Idaho, explain why she’s suing Gov. Brad Little, in an exclusive interview with The Trans Sporter Room podcast, below, as well as on Apple and Google Podcasts, Spotify and wherever you find Outsports podcasts.

UPDATE 5 p.m. May 28, 2020: I’ve been getting questions about what impact this ruling will have on other transgender students in Connecticut, and while we await a response from the CIAC and from Gov. Ned Lamont and other lawmakers in Connecticut, please know this:

  1. This is a political move, and at this moment the ruling by the OCR does not in any way change existing policies that have been in place across Connecticut for several years.
  2. The CIAC and school boards in Bloomfield, Canton, Cromwell, Danbury, Glastonbury, and Hartford have not changed their transgender inclusion policies which are based on Connecticut law, prohibiting discrimination. They should be reassured that the federal DOE still leaves the authority of deciding their school sports policy up to them.
  3. The threat of cutting or reducing federal funding is certainly worrisome, and should be considered seriously. But ultimately, it is a bully tactic meant to scare Connecticut. Actually depriving our state and our schools of federal funding is not a spigot that Betsy DeVos or even President Trump can turn off. Congress is in charge of funding, not the Trump Administration. Any move to target Connecticut for trying to protect our children from discrimination is bound to be met with resistance unlike anything ever seen before.
  4. If the DOE follows protocol, its next step may be to issue guidance to schools nationwide about this ruling and promoting the idea that trans female students all across the country should be excluded from girls’ sports. That has not happened, and may not happen.
  5. This issue will ultimately be settled by the courts. The ACLU is on the case, and both the federal civil rights lawsuit ongoing in Connecticut and a forthcoming ruling by the U.S. Supreme Court on transgender workers may play a role in how trans Americans are protected from discrimination, or not.

We at Outsports will keep you posted.