Is Educational Law Helping or Hindering?
- Leigh Choate
- Mar 23, 2021
- 4 min read
Is education helped or hindered by the legal process? This is a loaded question because it depends on who you are asking. Since “Education Code has been enacted in a piecemeal fashion over the years and is difficult to find and often overlaps,” it is sometimes challenging to determine if it is helpful or if it hurts the exact people that it is trying to protect (Kemerer, F. & Sansom, P. p.1). For example, when looking at “Title IX of the Education Amendments of 1972 protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance” (U.S Department of Education). Title IX states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance” (U.S Department of Education).
The NCAA defines being transgender as having a psychological identification as a man or a woman that differs from the person’s sex at birth.
There is currently an increasing number of high school and college-aged young people identifying as transgender (or trans), meaning that their internal sense of their gender identity is different from the gender they were assigned at birth. These students challenge educators to rethink an understanding of gender as universally fixed at birth. Educators must be open to this challenge to create educational institutions that value and meet all students’ needs (NCAA).
This leaves behind “the party seeking to uphold a statute that classifies individuals on the basis of their gender to carry the burden of showing an exceedingly persuasive justification for the classification” (Kemerer, F. & Sansom, P. pp.436-437). Because “educational programs and activities that receive educational funds must operate in a nondiscriminatory manner which includes athletics, they must endeavor to protect all parties wanting to fall under this umbrella of protection” (U.S Department of Education).
Consistency in following the law can become conflicting or complicated because with Title IX, specifically, female athletes are fighting for equal rights to compete in general while transgender female athletes are fighting for equal rights to compete on the female teams. Ultimately, Title IX is protecting both populations under the same umbrella using the same guidelines. The conflict that remains with these two groups is trying to determine if it is equitable for female athletes to compete alongside transgender female athletes. This is a heavily debated topic because, as argued in an article in Scientific American covering a lawsuit, some feel that “transgender girls have an unfair advantage in high school sports and should be forced to play on boys’ teams; however, there is minimal scientific research on transgender athletes”. (Brassil, G, R.).
Regardless of personal opinions, educators must work to ensure that schools operate consistently within the parameter of federal, state, and local laws. They must endeavor to follow the guidelines of Title IX by protecting all participants that fall under this category while providing equity and fairness between the two parties, in this case, groups whose desires are in conflict with each other. Educators can strive to follow the legal process by following the guidelines of the Supreme Court ruling where “several justices considered gender to be innately different from race because of the physical differences separating men and women, thus necessitating that there be some situations in which state actors can constitutionally take account of gender-based differences” (Kemerer, F. & Sansom, P. p.436).
While this is not an opinion paper based on whether transgender female athletes should be allowed to compete on girls’ teams or not, it is a perfect example of how there are challenges and benefits in educational law under the protective umbrella of Title IX, which make it difficult to determine if in fact education has been helped or hindered by the legal process. “Policies permitting transgender athletes to play on teams that match their gender identity are not new” (Turban, J.). Both groups have differing opinions, and since they are both entitled to their perspective opinions and the protection of the law, this puts them both in the situation as stated above “to carry the burden of showing an exceedingly persuasive justification for the classification” (Kemerer, F. & Sansom, P. pp.436-437). Knowing this reality, we are provided the forethought to be prepared for the celebration and the fallout with decisions surrounding rulings on this subject. One of these groups will end up disappointed because one group will be helped, and one group will be hindered by the legal process. Because of Title XI, Educational Law both helps and hinders the legal process simply through its continued complexity that is not a “cohesive category of law but rather a multilayered mixture of constitutional, statutory, administrative, contract, and judicial law which causes us all to get lost in the details” (Kemerer, F. & Sansom, P. p.45).
References
Brassil, G, R. (2021, March 15). The New York Times: How Some States are Moving to Restrict Transgender Women in Sports. https://www.nytimes.com/2021/03/11/sports/transgender-athletes-bills.html
Kemerer, F. & Sansom, P. (2013). California School Law: Third Edition. Stanford, CA: Stanford University Press. NCAA. (2011). Inclusion of Transgender Student-Athletes: NCAA Office of Inclusion. https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf
Turban, J. (2021, March 16.). Scientific American. Policy and Ethics: Trans Girls Belong on Girls Sports Teams.
U.S. Department of Education. Title XI: Sex and Discrimination. https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html
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