NORFOLK -- The Nebraska School Activities Association’s proposed policy on transgender students’ participation in high school sports would require at least a year of hormone therapy for students transitioning from male to female.
The draft policy, which the board has debated for months in closed session, requires the therapy because of concerns about the competitive advantage a transgender female athlete might have over biologically female opponents.
The policy involves creation of a gender identity eligibility committee and addresses the question of locker rooms and bathrooms, as well as religious considerations of parochial schools.
“I think it is incumbent upon this body that the competitive aspect is foremost in our minds,” said NSAA Executive Director Jim Tenopir. “And contrary to what some factions, including the (federal Office of Civil Rights) would tell you, I believe there’s some need for the preservation of privacy.”
It seems unlikely the proposal will appease those on either side of the issue.
Sheri Rickert, policy director and general counsel for the Nebraska Catholic Conference, said she expects the bishops will continue to support a separate proposal requiring all students to participate according to the gender on their birth certificates.
Amy Miller, legal director with the American Civil Liberties Union of Nebraska, said the proposed policy is not consistent with best practices from either a legal or policy standpoint and could result in lengthy litigation for the NSAA and school districts, or the loss of federal funds.
“All students should have the opportunity to play sports based on their gender identity -- period,” Miller said Wednesday by email from Lincoln.
Several people who spoke at the meeting opposed any transgender policy, saying it would be confusing to children and cause safety concerns because of the size differences between boys and girls. They also criticized the board for not releasing the draft earlier.
Roger Kingsley of West Point said the board should not be swayed by fear of lawsuits or the ACLU on an issue that will likely affect few people.
“I’m just one voice but I would like to think there’s thousands of people who have no idea what’s going on,” he said. “I would ask you to stop this nonsense and do the right thing.”
Natalie Weiss, a transgender woman and member of a support and resource group called Nebraska Trans Community, said in a telephone interview that the proposed policy seems incoherent and set up in a way that requires students to jump through multiple hoops with the chance they could still be denied participation.
For one thing, she said, it requires a unanimous decision by the NSAA eligibility committee, which means one person who opposes transgender participation could influence the outcome.
Also, she said, it professes to protect the privacy of transgender students, but all the requirements mean many people would know, as would a transgender student's teammates, because the policy requires they use a different locker room.
Weiss said she understood the portion of the policy regarding hormone therapy because of the possibility of competitive advantage.
The board voted to move the proposed policy to final reading, which means NSAA members can review it before a final vote in January.
The proposal allows schools to have their own policies regarding transgender students, leaving it up to administrators to decide whether to ask the NSAA to let a specific student participate.
“Pure and simple that second bullet point says if you’re not OK with that student participating in your school, the buck stops there,” said Tenopir, noting that means parochial schools could follow firmly held religious beliefs.
It also would require transgender students participating in NSAA-sponsored events to use bathrooms and locker rooms according to their biological gender, or to use private facilities.
Tenopir said that goes against guidance from the federal Office of Civil Rights but is consistent with the conservative values of Nebraska and privacy concerns of students.
“That’s something we’re ready and willing to fight,” he said.
The proposed policy lays out several steps families, schools and the NSAA would follow, starting with a written request from parents and students to school administrators.
Once administrators decide a student complies with school policy and NSAA eligibility rules, the issue would go before an NSAA gender identity eligibility committee to include a doctor, psychologist, psychiatrist or licensed mental health professional, NSAA staff member and an administrator from a school other than the one the student attends.
The parents and student would be required to provide documentation from friends, family or teachers affirming the student’s gender identity, as well as written verification from a doctor or psychologist.
Because of concerns about competitive advantage of female transgender students, the policy would require documentation of at least a year of hormone therapy or reassignment surgery.
Those students also must demonstrate they don’t have physical advantages -- based on bone structure, muscle mass and testosterone levels -- over students born female.
It’s unlikely that any students will have undergone sexual reassignment therapy.
Rex Schultze, the attorney representing the NSAA, said standards of care for children recommend that such surgery not be done until adulthood and until someone has lived for at least a year as the expressed gender.
The policy also says those requirements should not be interpreted as the NSAA encouraging students to undergo hormone therapy.
Tenopir said he talked with physicians about statistics that indicate it’s more likely for people who have had hormone therapy to commit suicide. Doctors told him that’s true but that it’s more likely because of psychological considerations, not the hormone drugs.
Already, 39 states have policies addressing transgender students’ participation in sports, and 11 have policies that involve medical review panels, Schultze said.
The proposed policy puts the cost of the review panel on schools, but Tenopir said that’s still open to discussion because he doesn’t want schools to be dissuaded because of money issues.
The proposed policy allows for an appeals process within the NSAA.
While the board is expected to vote on the policy in January, a competing policy is making its way through a different NSAA legislative process.
Parochial schools introduced proposals in four of the NSAA's six governing districts that would change bylaws to require that students participate according to the gender on their birth certificates.
Two of the four districts passed the parochial school proposal or an amended version, which means both the original and amended versions will move through a legislative process that includes a vote by all six districts in January and -- if at least three pass one of the proposals -- a vote by the association's representative assembly.
That body, which includes delegates from each district and the board of directors, meets in April. If the measure passes by a two-thirds majority, it would take effect the next school year.
Bylaw changes can happen through that legislative process driven by member schools or by board action. But changes passed by members trump those enacted by the board.
Tenopir said this is an issue facing Nebraska school districts and one the NSAA had to address.
“Sticking your head in the sand will not make this issue go away,” he said. “There is a need to address the competitive equity and safety aspect. And as you heard this morning, facilities, bathrooms, locker rooms, shower rooms, those facilities are hot-button items.”