By Cleis Abeni
The Nebraska School Activities Association on Monday adopted a policy that requires transgender students to obtain special permission to participate in the team sports and other school activities that correspond with their gender identity.
The vote was 6-2 in favor of the new policy, which takes effect immediately at public schools throughout the state, according to local news station KETV.
Trans advocates decried the move as regressive and transphobic, emphasizing that the new policy separates trans students as a segregated class from their peers, thereby putting schools at risk of having to fight costly legal battles to defend the policy.
“We are disappointed by the decision of the NSAA,” said Danielle Conrad, executive director of the American Civil Liberties Union of Nebraska in a statement. “Sports should be for all of Nebraska’s children. The action by the NSAA today creates one of the most exclusionary policies for transgender students in the country. In Nebraska, we shouldn’t be leaving students behind in the classroom or on the playing field.”
The policy requires transgender students to formally petition their school to become involved in gender-segregated athletics as their true selves. That request will then be considered by a special NSAA eligibility committee comprised of doctors and psychiatrists, who will approve or deny the student's request. The committee's determination about which gender a student may identify as will also regulate the student's access to gender-segregated facilities like restrooms and locker rooms. If the commitee rejects a trans student's request to recognize their authentic gender, the student will be required to play on the team and use the facilities that correspond with their sex assigned at birth, or use a separate private facility.
Advocates for equal access for trans students worry that the committee will violate federal law by functioning as the sole arbitrators of whether trans students are allowed to identify as their true gender at school. The Department of Justice has consistently ruled that Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex, also protects transgender students from discrimination based on their gender identity.
The policy does have an appeals process, but trans advocates like Abbi Swatsworth, president of the Lincoln LGBT group Outlinc, argue that the policy discourages students from participating in sports or being themselves at school.
Even with the appeals process, the policy is “still a very intrusive way to allow student participation," Swatsworth told KETV. “Parents and families of transgender children want the same thing everyone else does — the chance for their child to succeed. Every child — including those who are transgender — deserves a fair opportunity to fully participate in school activities, including sports.”
Thursday’s vote comes after months of wrangling in Nebraska state school districts over trans students' right to self-determination. In December, the schools considered requiring one year of hormone therapy for trans students who wanted to participate in sports with peers who share their gender identity. That requirement would have likely prevented some trans students from participating in sports at all, as most physicians will not administer hormone therapy to minors.
Conservative activists and politicians also voiced frustration with the NSAA policy — telling KETV the revision actually does not go far enough to regulate a student's gender.
The state's Republican governor, Pete Ricketts, implied that transgender students were lying or confused about their gender identity, contrary to scientific data that shows trans youth are every bit as certain about who they are as are cisgender (nontrans) youth.
"I can tell you as the father of two daughter, [sic] I would be very concerned about boys competing against my daughters in sports," Ricketts told KETV.
The Nebraska Family Alliance, a Christian group that proclaims its mission to be "upholding the Biblical definition of family," told the local news station that even allowing trans students to petition a committee for the right to identify as their true gender is problematic. In a statement released Tuesday, the Lincoln-based group echoed the governor's misunderstanding of trans identity, and urged the NSAA to ban students from using the facilities that correspond with their true gender altogether.
"The votes taken today affirm that many coaches recognize that allowing boys to play on girls' sports teams is unfair and it poses great physical risk," the statement reads. "Reserving competitive equity is essential to fair competition."
The group went on to claim the new policy is in line with a ruling by a federal judge in Virginia who last September denied Gavin Grimm, a transgender boy, the right to use the school restroom that reflects his gender identity.
But last October, the U.S. Department of Education and the Justice Department filed a 40-page brief on Grimm's behalf with the Fourth U.S. Circuit Court of Appeals — adding considerable counterweight to the judge’s ruling. And in December, school officials in Palatine, Illinois agreed to abide by a deal with federal authorities that allows trans students access to locker rooms that correspond with their gender identity.
The new policy adopted by the NSAA could become moot at the Association's general assembly in April, where members will consider a revision that would categorically bar transgender students from participating in any school activity that does not correspond with their gender assigned at birth.