War Between the States: Transgender and Gender Identity Policies in California and Texas

by Anna Boyd*

California and Texas are the two largest states by population in the country, thereby affecting more citizens with their legislation than any other state.[1]  Currently their laws regarding high school transgender athletes are completely at odds.[2]

California allows students in any facet of high school life–including competing in sports or using a restroom–to live and act under the student’s gender identity.[3]  Texas, on the other hand, opposes the Office of Civil Rights’ transgender position and requires that students conform to their assigned sex at birth.[4]  Texas also introduced a bill that allows for discretionary barring of transgender students from high school sports based on steroid use, even if the use is for a “valid medical purpose.”[5]

What Does California Law Require?

California has two separate laws affecting transgender individuals.[6]  First, the Education Code allows transgender athletes to compete based solely on their gender identity.[7]  Second, the Unruh Civil Rights Act classifies public schools as business establishments and provides “equal accommodations, advantages, facilities, privileges, or services” to “[a]ll persons . . . no matter what their sex.”[8]  Further, the California Interscholastic Federation “clarified that hormone therapy (and more importantly, surgery) for transgender student-athletes was unnecessary” due to public health concerns.[9]

What Does Texas Law Require?

Texas requires that students participate in sports based on their sex assigned at birth, which means transgender students are required to amend their birth certificate if they wish to compete in accordance with their gender identity.[10]  Amending one’s birth certificate in Texas requires obtaining a court order, which is a time-consuming and costly process.[11]  Additionally, Texas’ law was completely at odds with the Office of Civil Rights’ guidance in 2016.[12]

What is Texas’s New Proposed Bill?

Texas’ senate passed a bill, S.B. 2095, that allows leagues to “declare a student ineligible for competition on the basis of steroid use” even if for a valid medical purpose, so long as “the safety of competing students or the fairness of a particular competition has been or will be substantially affected the student’s steroid use.”[13]  While S.B. 2095 does not refer to transgender students directly, it allows for discretionary barring of student-athletes currently taking steroids, even if those steroids are approved, prescribed, or recommended by a medical professional.[14]  The bill technically allows students using steroids for a valid medical purpose to compete in sports, but subsection (i) of the bill carves out a large discretionary exception that could adversely affect transgender student-athletes.[15]  The bill was passed by the Senate of Texas on May 15, 2017, and is currently pending in the Public Education Committee of Texas’ house of representatives.[16]

How Will S.B. 2095 Impact Transgender Student Athletes?

Transgender student-athletes are under threat of full exclusion from sports competition in public schools in Texas.[17]  S.B. 2095 provides only a discretionary exclusion for students using steroids, but gender confirmation under the University Interscholastic League and birth certificate amendment typically require the use of steroids.[18]  Birth certificate amendment in Texas for a change in sex requires a court order if the change is occurring due to sex reassignment surgery.[19]

This new bill would place transgender students in a circular Twilight Zone ending in complete exclusion from athletic competition.[20]  A student assigned female at birth who identifies as male may seek a gender marker amendment on his birth certificate.[21]  In order to amend his birth certificate, he must obtain a court order and undergo sex reassignment surgery.[22]  The student would then be placed on hormone therapy and would receive testosterone steroids.[23]  Until the student was able to obtain a court order to amend his birth certificate (which, again, requires sex reassignment surgery), he would only be allowed to compete against females.[24]  This process could take multiple years.[25]  In the meantime, S.B. 2095 would allow leagues to ban him from competing against females under the guise of safety and fairness, which would completely bar the student from competition.[26]

How Does Texas Compare to Other States?

Fifteen states and the District of Columbia currently allow student-athletes to compete as their gender identity.[27]  California has allowed students to forego medical testing and sex reassignment surgery due to health concerns[28]

Six other states in addition to Texas have discriminatory laws that either require a change in the student’s birth certificate or sex reassignment surgery and hormone therapy (including a waiting period).[29]  In these discriminatory states, there is little chance that a student will be able to compete during his or her high school years, as evidenced by the analysis of Texas’ law and senate bill.[30]

The NCAA currently allows athletes to compete as their gender identity without undergoing sex reassignment surgery as long as the athlete has completed a full year of hormone therapy.[31]  The NCAA’s policy, then, is a middle ground between California’s law and Texas’ law, but it does not fully bar athletes from competition.[32]

In a nation dominated by sports, it is appalling that more than 10% of states could fully bar some athletes from high school competition.  While the collegiate competition arena presents a less discriminatory policy, California has offered reasons why inclusion without surgery or hormone therapy is best for young athletes and should be the model followed by all states.

* Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2019, Villanova University Charles Widger School of Law

[1] See World Population Review, US States–Ranked by Population 2018, http://worldpopulationreview.com/states/ (last visited Feb. 21, 2018) (listing California as largest with 12% of total population, Texas as second largest with almost 9% of total population).

[2] Compare Cal. Educ. Code § 221.5 (West 2015) (allowing student athletes to choose and compete under gender identity); with UIL Rules Subchapter J, Non-discrimination in UIL Contest, UIL Constitution and Contest Rules, § 360 “Non-discrimination Policy” (requiring students to compete on teams based on sex assigned at birth).

[3] See Cal. Educ. Code § 221.5 (West 2015) (allowing student athletes to choose and live in accordance with gender identity); see also Unruh Civil Rights Act, Cal. Civ. Code § 51 (West 2016) (including gender within definition of sex, providing discrimination based on gender or gender identity illegal).

[4] See infra note 12 and accompanying text for current Texas law and how it conflicts with the Office of Civil Rights’ guidance on transgender student athlete treatment.

[5] 2017 Tx. S.B. 2095 (NS) (May 10, 2017) (providing discretion for exclusion regardless of safe harbor, “valid medical purpose”).

[6] Compare Cal. Educ. Code § 221.5 (West 2015) (allowing students to act in accordance with gender identity); with Unruh Civil Rights Act, Cal. Civ. Code § 51 (West 2016) (barring business establishments, including public schools, from discriminating on basis on gender identity, gender expression, sex).

[7] See Cal. Educ. Code § 221.5 (West 2015) (“A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”).

[8] Unruh Civil Rights Act, Cal. Civ. Code § 51 (West 2016) (including gender within definition of sex: “‘Gender’ means sex, and includes a person’s gender identity and gender expression. ‘Gender expression’ means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth”).

[9] Morgan Shell, Transgender Student-Athletes in Texas School Districts: Why Can’t the UIL Give All Students Equal Playing Time?, 48 Tex. Tech L. Rev. 1043, 1064 (2016) (explaining student-athlete election of gender identity need not be confirmed by medical professional or school).

[10] See id. at 1067 (explaining Texas’ restrictive transgender student-athlete laws).  See also Corbett Smith, Advocates Call Texas UIL Birth Certificate Ruling ‘Horrible Policy’ for Transgender Athletes, Dall. Morning News (Feb. 26, 2016, 11:26 AM), http://educationblog.dallasnews.com/2016/02/texas-superintendents-overwhelming-pass-uil-amendment-requiring-birth-certificates-in-questions-of-gender.html/ (reporting on legislative requirement for birth certificate amendment for transgender student-athletes).

[11] See Shell, supra note 9, at 1067 (explaining process of changing gender marker on birth certificate).  See also John Wright, Texas Rule Would Effectively Bar Transgender Youth and Teens from Playing Sports, New Civ. Rts. Movement (Oct. 21, 2015, 5:31 PM), http://www.thenewcivilrightsmovement.com/johnwright/texas_moves_to_bar_trans_youth_from_playing_sports (providing amendment of gender marker on birth certificate requires court order).

[12] See 20 U.S.C. § 1681(a), et seq. (proffering Title IX which bars exclusion from activities receiving federal funds on basis of one’s sex).  Compare Dear Colleague Letter issued by U.S. Department of Justice, Civil Rights Division, and U.S. Department of Education, Office of Civil Rights 2 (May 13, 2016), https://www.nccpsafety.org/assets/files/library/Dear_Colleague_Letter_Transgender_Students_2016.pdf (expanding definition of sex to include gender identity and transgender status); with Dear Colleague Letter issued by U.S. Department of Justice, Civil Rights Division, and U.S. Department of Education, Office of Civil Rights (Feb. 22, 2017), https://www.justice.gov/opa/press-release/file/941551/download (withdrawing statements and guidance issued in May 2016 Dear Colleague Letter).

[13] 2017 Tx. S.B. 2095 (NS) (May 10, 2017) (regulating all students who participate in athletic events under supervision of University Interscholastic League, Texas’ athletic association governing public schools).

[14] See 2017 Tx. S.B. 2095(i) (“The league may declare a student ineligible for competition on the basis of steroid use described in Subsection (h) [valid medical purpose] if the league determines that the safety of competing students or the fairness of a particular competition has been or will be substantially affected by the student’s steroid use.”).

[15] Compare id. at (h) (allowing for competition if use of steroids is valid medical purpose); with id. at (i) (allowing for discretionary exclusion even if valid medical purpose as long as safety or fairness are “substantially affected”).

[16] See Texas Legislature Online, Bill: SB 2095, http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=85R&Bill=SB2095#vote146 (last visited Feb. 21, 2018) (providing history of bill).

[17] See Samantha Allen, The Texas Law That Could Disqualify Trans Athletes From Competing, Daily Beast (May 11, 2017, 2:08 PM), https://www.thedailybeast.com/the-texas-law-which-could-disqualify-trans-athletes-from-competing (reporting story of transgender wrestler Mack Beggs).  See also Jay Croft, Texas Bill Could Keep Transgender Students Out of High School Sports, CNN (May 10, 2017, 4:27 PM), https://www.cnn.com/2017/05/10/us/texas-transgender-athletes-trnd/index.html (reporting effects SB 2095 could have on transgender student athletes).

[18] See Shell, supra note 9, at 1068–69 (explaining UIL’s birth certificate verification policy).  See also Texas Dept. of State Health Services, Application to Amend Certificate of Birth, https://www.dshs.texas.gov/vs/reqproc/forms/vs170.pdf (last visited Feb. 21, 2018) (“Affidavit by medical attendant or affidavit and one document. Court Order required if change is a result of gender reassignment surgery.”); University Interscholastic League, About the UIL, http://www.uiltexas.org/about (last visited Feb. 28, 2018) (defining UIL as guiding organization for Texas public schools in terms of “educational extracurricular academic, athletic, and music contests”).

[19] See Texas Dept. of State Health Services, supra note 18 (providing examples of corrections).

[20] See infra notes 21–26 and accompanying text for one scenario in which a transgender athlete would be completely barred from athletic competition.  See also Allen, supra note 17 (explaining potential exclusion of Beggs, a transgender wrestler); Croft supra note 17 (reporting Beggs’ story, possible impact of SB 2095).

[21] See Texas Dept. of State Health Services, supra note 18 (providing examples of corrections to birth certificates).  See also See Shell, supra note 9, at 1067 (providing current Texas law requires transgender students to amend birth certificate if they wish to compete as gender identity).

[22] See Texas Dept. of State Health Services, supra note 18 (requiring court order after sex reassignment surgery in order to amend sex on birth certificate).  See also Shell, supra note 9, at 1067 (providing current Texas law requires transgender students to amend birth certificate if they wish to compete as gender identity).

[23] See Transition Timeline, Transgender Partner, https://thetransgenderpartner.wordpress.com/transition-timeline/ (last visited Feb. 21, 2018) (providing an individual must be prescribed and must take hormones for eighteen to twenty-four months prior to surgery).

[24] See id. (providing timeline for sex reassignment surgery, placing actual surgery between eighteen and twenty-four months of beginning of process).  See also UIL Rules Subchapter J, supra note 2 (allowing students to compete only as sex assigned at birth); Shell, supra note 9, at 1068–69 (explaining UIL’s birth certificate verification policy).

[25] See Transition Timeline, supra note 23 (explaining entire sex reassignment surgery may take upwards of two years); Shell, supra note 9, at 1067 (“These students will soon face the daunting task of amending their birth certificate, which, in Texas, is often an expensive procedure that entails obtaining a court order.”).  See also Wright, supra note 11 (commenting on expensive procedure to amend birth certificate under Texas law).

[26] See 2017 Tx. S.B. 2095(i) (eliminating safe harbor for steroid use if used for valid medical purpose).  See also Croft, supra note 17 (disagreeing with speculation asserting prescribed testosterone use confers unfair advantage as compared to other females).

[27] See Wright, supra note 11 and accompanying text (reporting fifteen states, District of Columbia, and NCAA allow participation in sports based on gender identity).

[28] See Ellen Huet, New State Law Opens Doors for Transgender Students, SFGate (Aug. 12, 2013, 11:07 PM), https://www.sfgate.com/news/article/New-state-law-opens-doors-for-transgender-students-4726696.php (reporting Roger Blake, California Interscholastic Federation’s executive director, supported gender identity rule without hormone therapy due to medical professionals’ advice suggesting students are “too young and underdeveloped”).

[29] See K-12 Policies, Transathlete, https://www.transathlete.com/k-12 (last visited Feb. 28, 2018) (providing graphic showing states color-coded by their transgender athlete participation laws with five other states that have discriminatory laws, namely Idaho, Nebraska, Louisiana, Alabama, North Carolina, and Indiana).

[30] See id. (color-coding discriminatory states as red, meaning in these states it is unlikely student-athletes will be able to participate while in high school).  For further discussion of the effect of a discriminatory participation law on transgender student-athletes, see supra notes 20–26 and accompanying text.

[31] See NCAA Inclusion of Transgender Student-Athletes 13, NCAA Office of Inclusion, (Aug. 2011), http://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf (providing guidelines for both male and female transgender athletes, including time limits when receiving hormone therapy).

[32] See id. (providing NCAA’s policy on transgender athletes).  For further discussion of California’s and Texas’ laws, see supra notes 27–30 and accompanying text.