Eligibility in Flux

Historically, sports have generally been divided into a binary system of males and females for purposes of competition. Yet this system does not allow for the spectrum of sexual differences that can occur both physically and mentally. Such individuals include transgender or intersex. Transgender and intersex individuals are not unknown to the sporting world. These individuals have won major sporting titles from amateur awards to Olympic medals. Despite the athletic prowess some have expressed, these individuals are neither guaranteed inclusion into all sporting competitions nor given statutory rights that provide for such inclusion. The potential to include transgender and intersex individuals at the U.S. collegiate level is the focus of this proposal. There have only been a couple known transgender student-athletes who have competed in the NCAA and none of these student-athletes have yet to challenge or seek out their right to compete in intercollegiate athletics under Title IX. This study analyzes the legal perspective on the eligibility of transgender and intersex student-athletes through hypothetical legal cases. It would not be practical to wait five to twenty years for such a case to manifest in the court system. Although the case would be on-point, legal scholarship does not have the luxury of waiting for a case to present itself. Instead one must use the available precedents to interpret the law. Law is a type of social science, yet it is devoid of experimentation and statistical methodology. Instead, legal methodology surveys cases and legal precedents rather than people or businesses. Describing and explaining what the law is and states is easy but it is more difficult to explain what the law could or should be. This thesis takes a proactive look at transgender and intersex student-athlete's inclusion under the auspices of Title IX. Title IX is the federal legislation that is the most influential in collegiate sports. Title IX's policies and interpretations are the primary focus in this thesis. In addition, the multiple legal precedents that have developed because of Title IX are addressed. Title IX has been the stimulus for female's inclusion into intercollegiate sports. Despite the historical context, Title VII and Title IX's scope has broadened beyond just females in the past couple decades due to an expanded definition of the term "sex." The other major factor in this proposal is the NCAA, which is the main governing body for intercollegiate athletic programs. The purpose of the NCAA and the binary system in athletics is largely to maintain an "equal playing field." It is believed by some that the inclusion of a transgender or intersex student-athlete may alter the playing field, thereby creating an imbalance. It is important to point out that no such thing as an even playing field exists, or else there would not be competition. Differences in culture, finances, genetics, and a myriad of other factors affect the development of an individual and the team; already creating an uneven playing field. The NCAA in the past couple months has published official rules regarding the eligibility for transgender student-athletes. Yet, the NCAA remains silent on intersex student- athlete participation. This small population is therefore left in a state of limbo in regards to intercollegiate eligibility. A transgender student-athlete's gender status can vary depending on the state one lives in. Certain states in the US protect gender identity and allow alterations of one's legal sex status. These states allow protection that federal statutes have yet to cover. In contrast, most states do not recognize gender identity nor allow any changes to one's legal sex status. The difference in state regulations is a consideration transgender student-athletes need to consider before filing a Title IX claim. Title IX protects sex discrimination and thus the underrepresented sex. Intersex student-athletes do not lack `sex' and as thus should be under the auspices of Title IX. Intersex is not male or female thus intersexuality could be considered an underrepresented sex. Females may have been the original beneficiaries of Title IX but intersex students could be the new underrepresented class. The broad definition of "sex" from current transgender case law shows that "sex" is not legally bound to the binary construct of male or female. Thus, Title IX would include protection for those with different gender identities, transsexuals, and intersex student-athletes. Recent athletic sensations and governing body guidelines have expressed interest and questions regarding transgender and intersex eligibility. Inclusion of these individuals can be strengthened by successful litigation through Title IX.