Clarion file photo

Clarion file photo

Mat-Su schools’ ban on transgender girl athletes raises concern for ACLU, may violate federal law

Multiple federal agencies affirm rights of transgender people

By Lisa Phu

Alaska Beacon

The Matanuska-Susitna Borough School District board on Wednesday approved an activities policy that would prohibit transgender girls from competing in girls sports. The action comes as federal agencies continue to affirm legal protection for people discriminated against based on gender identity.

Attempting to ban transgender girls from playing on girls’ teams constitutes illegal discrimination under the federal law known as Title IX, according to the ACLU of Alaska. Title IX prohibits sex-based discrimination in any education program or activity offered by a school that receives federal funding.

“The Mat-Su, and any other school board or district that’s considering this, is putting themselves in legal peril, and this kind of litigation has ended up being very, very costly in other states,” said Stephen Koteff, the ACLU of Alaska’s legal director.

“Rather than engage in this kind of legal showdown, I think that school districts should look seriously at what the costs are for this kind of exclusion when the real impacts just aren’t there. The fears and the myths that surround this kind of discrimination do not at all surface to the level of fact, and that’s unfortunate that we’re dealing with this kind of legislation when there’s no real problem to be addressed,” he said.

Last June, the U.S. Department of Education announced it would extend Title IX prohibitions on sex-based discrimination to include discrimination based on sexual orientation and gender identity. The action stemmed from the U.S. Supreme Court decision in Bostock v. Clayton County.

“Title IX prevents discrimination on the basis of sex,” Koteff said. “Bostock found that the term sex includes sexual orientation and gender identity.”

More recently, the United States Department of Agriculture’s Food and Nutrition Service issued guidance last month that affirms the Department of Education’s conclusion that Title IX’s prohibition on sex discrimination includes a prohibition on discrimination based on gender identity and sexual orientation.

Pushing back on legal protections for transgender individuals, Alaska Attorney General Treg Taylor on June 14 signed onto a letter from attorneys general of 26 states asking the federal guidance to withdraw the USDA guidance.

Koteff isn’t surprised. “This state’s administration is continuing to persist in its opinion that trans youth are not protected by the provisions of Title IX,” he said. “But even without Title IX, these bans would still be illegal under both the U.S. and certainly the Alaska Constitution.”

Department of Law Communications Director Patty Sullivan wrote in an email the Alaska Department of Law is not aware of any law specifically addressing transgender individuals in Alaska.

“The reason the Attorney General signed on to this letter is we believe the federal government is taking the Bostock decision and applying it outside of the specific context in which it was decided and extending it in an unwarranted manner that attempts to tie states’ hands. We hope the USDA reverses course and stays within its lane.”

President Biden has issued two executive orders last year and on Wednesday that affirm rights of transgender people to not be discriminated against.

Most spoke against the policy change

The Mat-Su school board voted 6-1 to approve the activities policy revision, which states, “A student who participates in an athletic team or sport designated female, women, or girls must be female, based on the participant’s biological sex as either female or male, as designated at the participant’s birth.”

The revised policy prohibits transgender girl students from participating in girls sports and teams. The policy would impact teams and sports within the Mat-Su Borough School District; it would not apply to teams from other districts competing within the Mat-Su school district.

The decision followed testimony from about 35 individuals — around 20 spoke out against what most called a discriminatory policy, while 15 testified in support of it. A couple testifiers said they’d sue the district if it passed.

Alex Squires, a Mat-Su student going into 12th grade, said the school board should focus on “actual problems” rather than focusing on “made up ones.”

“We have many problems in our school right now — bullying, drugs, mental health problems, staff shortages, students not getting quality education. I see it every day. And many more problems. The school decides that it wants to promote sex equality, but this cannot be done by discriminating against transgender athletes,” Squires said. “Trans athletes deserve to have access to the same resources as other students in a way that they can be comfortable and safe in their environment.”

Declan Farley, a 2021 Palmer High School graduate and transgender athlete, noted the high rates of suicide rates for transgender individuals.

“Excluding these students from the joy of the things that they love most, such as sports, puts them at a higher risk of suicide,” he said. “I cannot change the way that I was born, but you can all change the way that you treat those different around you. Transgender people, such as myself, want to be treated with the same respect as everyone else.”

Supporters of the policy spoke about biological differences between male and females, and the rights of athletes whose biological sex at birth was female.

Keri Anderson told the board “I’m here to applaud you” for bringing forward the policy.

“Sports are such a blessing in the lives of girls. We must protect these opportunities for girls by not allowing male-bodied athletes the physical advantage that they do have to ever take their place,” Anderson said. “Please do not allow even one girl to experience exclusion on her playing fields and let a male-bodied athlete take her spot.”

During board discussion, board President Ryan Ponder said the policy is meant to “maintain fairness in athletic opportunities for women” and “ensure discrimination against girls and women does not occur.” He added the policy is supported by federal law and federal case law.

Of the 7-member board, member Dwight Probasco was the only no vote.

The new policy was first introduced June 1. It mirrors Alaska Senate Bill 140, which the Legislature failed to pass after it was tabled twice during the final days of the session.

James Brooks contributed to this report.

Lisa Phu covers justice, education, and culture for the Alaska Beacon. Previously, she spent eight years as an award-winning journalist, reporting for the Juneau Empire, KTOO Public Media, KSTK, and Wrangell Sentinel. This article originally appeared online at Alaska Beacon, an affiliate of States Newsroom, is an independent, nonpartisan news organization focused on connecting Alaskans to their state government.

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