The Equal Protection Clause of the U.S. Constitution and Title IX’s prohibitions against sex discrimination have both been interpreted by state and federal courts to encompass discrimination based on gender stereotyping, including discrimination against individuals because of their gender identity or expression (i.e. transgender athletes). Therefore, schools may face legal liability if they deny access to such student-athletes, even if no law explicitly addresses the issue.
Participation of Transgender Athletes
Homophobia and Sport Policy Recommendations: The Foundation Position
Athletic Department non-discrimination policies should prohibit discrimination on the basis of sexual orientation in the department and on teams. Lesbian and bisexual athletes and coaches should be able to identify themselves if they choose to without fear of negative consequences (loss of job, scholarship, starting position; negative performance evaluation; dropped from team).
Participation of Intersex Athletes in Women’s Sports
Intersex athletes are vulnerable to exclusion from women’s sports, as well as ridicule and invasion of privacy. The Women’s Sports Foundation believes that women with intersex conditions have the same rights to participation in athletics as all women. It is also our position that eligibility standards for women’s sports that require an athlete to demonstrate particular hormone levels promote the policing of gender by medical means, leading to the unwarranted invasions of privacy not only for intersex athletes, but any athlete whose femininity is questioned. Moreover, any policy that singles out women’s sports for eligibility based on hormone levels is discriminatory and sends the harmful message that female athletes are uniquely vulnerable and in need of special protection from the normal, natural variation in size, skill, and athletic ability that exists among members of either sex.
The Foundation supports the abandonment of chromosomal screening for gender verification. The purpose of gender verification should be only to prevent men from masquerading as females at women-only competitions. Athletes and sports governing bodies should be educated as to the nature, both physical and psychological, of sexual differentiation disorders.
Negative Recruiting/Slander Based on Sexuality
Negative recruiting tactics are increasingly being used as an unethical recruitment strategy within women’s collegiate sports, essentially attempting to give their own programs an un-fair advantage based on perpetuating stereotypes, myths, and misconceptions. By implying to a recruit, that a rival college or university’s coach is gay, or that an opposing team is “full of lesbians,” school recruiters use this tactic to prey on unsubstantiated fears, one of which is that a gay coach or gay players might negatively influence the sexual orientation of potential recruits.