Transgender rights advocates in New Hampshire argue that Title IX takes precedent over the state law. (Getty Images)
In August, the Kearsarge Regional School Board took up a thorny question: How should it comply with a new law barring transgender girls from middle and high school sports?
Earlier that summer, Gov. Chris Sununu had signed the law, House Bill 1205, which required that schools separate their sports teams into male, female, and coed teams, and that they allow only kids who were born biologically female to join female sports teams.
Kearsarge had a student – a transgender girl – who would be barred from playing girls’ soccer if the school followed the state law. The board was meeting to decide whether the school district should do so.
The body held its deliberations behind closed doors in a nonpublic session. But the final result was clear: Kearsarge would allow the student to play on the team, ignoring the state law.
The decision came amid a difficult environment for school districts. The Legislature had passed a law requiring them to bar transgender girls from girls’ sports. But federal law, under Title IX of the U.S. Education Amendments, prohibits any discrimination on the basis of sex, and school districts that violate the law can lose out on federal funding. And the law was updated this year by the Department of Education to explicitly bar discrimination based on a person’s sexual orientation and gender identity.
Transgender rights advocates argue that Title IX takes precedent, and that schools should follow it over the state law. The Kearsarge board agreed. But other school districts have chosen to follow the state law and bar their transgender female students from girls’ sports, and those districts are currently facing lawsuits.
Barrett Christina, executive director of the New Hampshire School Boards Association, says he agrees with the approach taken by Kearsarge.
“It is impossible to comply with both House Bill 1205 and the recent Title IX regulations,” he said in an interview. “There’s simply no way to comply with both.”
On Aug. 15, Plymouth Regional High School informed the mother of Parker Tirrell, a transgender girl, that she would not be allowed to play on the soccer team, citing its need to comply with the law.
The American Civil Liberties Union of New Hampshire is currently suing Tirrell’s school district, Pemi-Baker Regional School District, in addition to the school board, Department of Education Commissioner Frank Edelblut, and the State Board of Education to stop the law, which they argue is unconstitutional. They are also suing the Pembroke School District to allow Iris Turmelle, another transgender student, to participate.
U.S. District Court Judge Landya McCafferty has issued a temporary restraining order against the law, allowing Tirrell to play on her girls’ soccer team, but it applies only to Tirrell and Turmelle and not to all transgender students in the state.
For school boards and school districts, the question of whether to comply with HB 1205 is fraught.
HB 1205 creates the threat of lawsuits for those districts that do not comply. The law states that “any student who is deprived of an athletic opportunity or suffers any direct or indirect harm as a result of a school knowingly violating” the law “shall have a private cause of action for injunctive relief, damages, and any other relief available under law against the school.”
So far, no lawsuits have been filed against the only school currently not following the law: Kearsarge Regional School District.
On the other side, Title IX has clear prohibitions against school discrimination, and Kearsarge board members have raised the concern of the loss of federal revenue if they are found out of compliance by the U.S. Department of Education.
The question of whether Title IX’s prohibition on sex-based discrimination applies to transgender athletes barred from sports teams is a central point of contention in the federal lawsuit involving Tirrell and Turmelle.
The state’s Attorney General’s Office has argued that Title IX was originally created to protect women’s sports and that the state law is seeking to do the same by preserving fairness and safety for female athletes by barring transgender girls. Attorneys for Tirrell and Turmelle argue that both girls have undergone hormonal therapies that have eliminated any physical advantage they might have against other female students.
The district court’s preliminary decision is likely to be appealed, and the case is moving to a full trial in the coming months. But Christina said McCafferty’s ruling is nonetheless an indication to school districts that they do not need to bar transgender girls from their sports teams.
“It’s sort of a signal to anybody else that’s bringing any further challenges that the court’s already going to decide that the law itself is unconstitutional.”
Beyond the question of compliance with federal law, the Kearsarge board also received a swell of pressure from transgender advocates – including the student herself – asking for them to allow her onto the soccer team.
A number of parents of transgender children across the state, including Sara Tirrell and Michelle Cilley Foisy, testified in favor of the move, as did Christine Arsnow, a pediatrician who noted high suicide rates among transgender youth and the benefit of access to sports.
Other advocates spoke in opposition, such as Beth and Stephen Scaer, who said unfair advantages could follow a decision to allow a transgender girl to participate.
The student herself testified that she had played soccer since she was 3 and benefited personally from the socialization and sense of belonging she received.
As the issue continues to feature in political campaign rhetoric – particularly among Republican candidates who oppose transgender girls participating in girls’ sports – sports events have become new flashpoints of conflict.
A group of Bow parents are suing the school district in federal court because the district barred them from attending sporting events after they wore pink armbands to games in which Bow was facing off against Plymouth. The arm bands, which were marked with “XX” to signify female chromosomes, were worn in protest of Tirrell, who was playing on the Plymouth team.
The parents have argued their First Amendment rights have been violated; the school district says the protests were disruptive and constituted harassment.
Christina declined to comment on the Bow School District’s handling of that incident. But the School Boards Association has a template policy around free speech issues that it encourages school boards to adopt.
“No person on school property or during any school sponsored or approved activity may … engage in behaviors that are harassing or discriminatory in nature based on a person’s actual or perceived age, sex, gender identity, sexual orientation, marital status, familial status, disability, religion, national origin, race, or color…,” the sample policy states.