Update, February 26: A UIL spokesperson told the Observer Friday that both former education commissioner Michael Williams and current commissioner Mike Morath signed off on the proposal, confirming it will take effect August 1.
She also said neither UIL attorneys nor the education commissioner raised concerns about potential Title IX violations. The UIL legislative council is expected to review the district voting results in June, but is unlikely to take further action.
Despite strong opposition from LGBT advocates, representatives from Texas school districts have overwhelmingly endorsed a proposal aimed at barring transgender boys and girls from participating in athletics alongside their cisgender peers.
District superintendents and athletic directors voted 409-25 in favor of using birth certificates to determine student athletes’ gender, according to results obtained by the Observer through a request under the Texas Public Information Act.
The legislative council of the University Interscholastic League (UIL), the governing body for Texas high school sports, recommended the amendment in October, and district representatives’ ballots were due this month. According to UIL, if the amendment is approved by Texas Education Commissioner Mike Morath, it would take effect in August.
“Because of the very detailed process UIL goes through, it’s usually a pretty clear-cut decision by the time it gets to the commissioner,” said Debbie Ratcliffe, director of media relations for the Texas Education Agency.
The UIL is part of the University of Texas at Austin, and its constitution prohibits the legislative council or member districts from passing amendments that conflict with UT policy, which bans discrimination based on gender identity.
Both the council and the districts “had a duty to reject the amendment,” said Paul Castillo, a Dallas staff attorney for the LGBT civil rights group Lambda Legal.
Meanwhile, the federal Department of Education has said Title IX’s prohibition against sex-based discrimination applies to trans students, meaning the amendment could expose districts to legal liability, a federal investigation and loss of funds.
“These discriminatory athletic policies, they stigmatize transgender students by singling them out,” Castillo said. “Transgender students already face high rates of physical and verbal harassment at schools.”
Ratcliffe said Commissioner Michael Williams signed off on the amendment in November. UIL spokesperson Kate Hector has said once it’s approved by member districts and the education commissioner, the amendment will take effect in August. Hector couldn’t be reached for comment Thursday
In a letter responding to LGBT advocates’ concerns last fall, UIL Executive Director Charles Breithaupt denied the amendment would violate Title IX, but refused to meet with them to discuss the issue.
“The UIL makes every effort, in both rule and practice, to provide fair and equitable competition for Texas students in accordance with state and federal law,” Breithaupt wrote, adding that the requested meeting “would not be fruitful.”
According to the UIL, the amendment reflects what is already its general practice. The UIL prohibits discrimination based on disability, race, color, gender, religion or national origin when it comes to athletic participation. The amendment would make clear that the nondiscrimination policy doesn’t include gender identity.
“Gender shall be determined based on a student’s birth certificate,” the amendment states. “In cases where a student’s birth certificate is unavailable, other similar government documents used for the purpose of identification may be substituted.”
To correct gender markers on their birth certificates, trans people must obtain court orders, which can be an expensive process. Additionally, Texas has no legal standard for gender-marker changes, leaving decisions about whether to grant them up to individual judges.
According to the National Center for Lesbian Rights, 15 states and the District of Columbia allow trans youth to participate in athletics based on their gender identity. Both the NCAA and the International Olympic Committee also have more lenient policies, and experts say those rules don’t give trans women competitors any physical advantage.
Among those who voted in favor of the UIL amendment were representatives from Austin and Dallas school districts, which both have local policies prohibiting discrimination based on gender identity. Representatives from those districts didn’t immediately respond to requests for comment.
Correction, February 25: The story has been updated to reflect Texas Education Commissioner Williams’ approval of a package of policies, including the one affecting trans athletes, last November.