But the opinion, from UT’s Associate Vice President for Legal Affairs Jeffery L. Graves, didn’t address participation in high school athletics. Instead, it dealt with documentation trans employees at UT needed to qualify for gender-based benefits.
Graves told the Observer UIL officials didn’t consult him before enacting the policy, which bases student athletes’ gender on their birth certificates. The new rules could bar trans youth from participating in high school athletics alongside their cisgender peers.
Graves acknowledged that his opinion could be outdated, because the “legal landscape has changed.”
“The issue has come to the forefront in terms of the legality in the last couple of years,” Graves told the Observer. “So I won’t disavow what I wrote, because the question has not been put to me, so I haven’t done the research necessary to do a new opinion. But I suspect that based on the current legal landscape, the answer might be different.”
The UIL, Texas’ governing body for high school athletics, operates under the auspices of UT’s Vice President for Diversity and Community Engagement, and the league’s constitution prohibits it from enacting policies that conflict with UT policy, which has banned discrimination based on gender identity since 2008.
Paul Castillo, a Dallas-based staff attorney for the LGBT civil rights group Lambda Legal, called UIL’s decision to base its policy on an outdated legal opinion “astonishing,” “irresponsible” and “alarming.”
“More troubling is that the legal advice relied upon by UIL was on completely different subject matter and should not have been used for any other purpose,” Castillo said. “Frankly, that’s equivalent of following the orders of your doctor prescribed to an entirely different patient.”
UIL representatives didn’t immediately respond to a request for comment.
LGBT advocates say the policy runs afoul of the UIL Constitution and Title IX of the U.S. Education Amendments. In 2014, the Department of Education said Title IX’s prohibition against sex-based discrimination applies to transgender students.
In a May 2007 email to UT’s vice president for human resources, Graves wrote that the university “does not have any place in making an independent determination of what a person’s sex is.”
In the email, Graves referenced Littleton v. Prange, a 1999 decision from Texas’ 4th Court of Appeals, which said gender is determined at birth and cannot be changed. However, LGBT advocates say Littleton was effectively overturned by a 2014 decision from the 13th District Court of Appeals.
“In my opinion, the University should, in those instances in which there is a question and in which we record sex, eg. benefits, the presumption is to defer to facially valid official documents, regardless of appearance or the subjective report of the individual regarding their gender identification,” Graves wrote.
He added that while officials would presume that documents such as birth certificates and driver’s licenses were correct, the presumption could be overridden in some cases, including when it comes to locker room use at Gregory Gym.
“We are not going to have someone with male genitals showering or changing in the girls’ locker room (or vice versa), no matter what their driver’s license says,” Graves wrote.
Graves’ recommendation was used as the basis for what became the UIL’s practice of linking student athletes’ gender to their birth certificates, which, league officials maintained, they were merely formalizing with the policy set to go into effect in August.
In August 2013, UIL Director of Policy and Compliance Leo L. Barnes cited Graves’ opinion in an email to UIL’s executive and deputy directors in advance of a meeting where they would discuss the issue of trans athletes.
“UIL does not have the same facts to deal with (i.e. restrooms, etc.) but I think the approach of relying on other branches of government (Vital Statistics, the courts, etc.) that deal in these issues (birth certificates, driver’s licenses, etc.) are the proper way to go,” Barnes wrote.
In December 2014, Barnes’ again cited Graves’ opinion in response to an inquiry about trans athletes from the Eagle Mountain Saginaw school district’s athletic director, saying the UIL takes the same approach to the issue as UT.
“In those instances in which there is a question as to a student’s gender identity, the presumption is to defer to the gender identity on facially valid official documents, such as birth certificates and driver’s licenses, regardless of the appearance or the subjective report of the individual regarding their gender identification,” Barnes wrote.
UIL Executive Director Charles Breithaupt responded that he felt Barnes’ statement was “right on point and appropriate for us to use for the current time.”
“We will have to see how long it can stand,” Breithaupt wrote.