Wisconsin Legislation Would Prevent Transgender Students From Participating in Sports Based on Their Gender Identity

Two identical bills have been introduced in the Wisconsin Assembly and Senate that would drastically affect transgender students’ participation in sports.

2021 AB 196 and 2021 SB 322 would amend provisions of Wis. Stat. §118.13(1), to create exceptions to the pupil discrimination statute.  The bills would also create Wis. Stat. §118.132 to identify the requirements of the bills, including the nature and scope of the exceptions to the pupil discrimination statute.

The bills cover athletic sports and teams operated or sponsored by the public schools, independent charter schools, and private schools that participate in the parental choice program.  The bills would require schools to “designate” athletic sports and teams based on the sex of the participants; however, the term “sex” is defined as “the sex determined at birth by a physician and reflected on the birth certificate.”  Consequently, an individual student’s sex under both bills must be the student’s biological gender assigned at birth and cannot be the gender that the student identifies as, if it is different.

The bills require that each school board, independent charter school, and private school participating in a parental choice program (an “educational institution”) that operates or sponsors an interscholastic, intramural, or club athletic team or sport to designate the athletic team as one of the following, based on the “sex” of the participating pupils:

1.         Participants who are males, men, or boys;

2.         Participants who are females, women, or girls;

3.         Coed or participants of both sexes

The bills require that an educational institution prohibit a male pupil from participating on an athletic team or in an athletic sport designed for females, women, or girls.  The bills also require that an educational institution notify pupils and parents if an educational institution intends to change a designation for an athletic team or sport.

The bills present many challenges in light of current law.  As an initial matter, the amendment to Wis. Stat §118.13 (the pupil discrimination law) is somewhat unwieldy.  The bills create an exception to the rule established by the pupil discrimination statute, but the rule itself does not expressly include sexual identity. 

Instead, the only provision of the pupil discrimination law that elaborates on the meaning of “sex” or, at least, relates to the general subject of sex, is the part of the law that expressly includes “sexual orientation”.  Consequently, the bills create an exception to a rule that does not exist, at least not expressly (although, in fairness, anecdotal information indicates that the State Department of Public Instruction might interpret the word “sex” as it appears in Wis. Stat §118.13 to include “sexual identity”).  This discrepancy is bound to surface in any litigation under these statutory provisions if the bills do pass, particularly when — as here — the statute creates so many opportunities for aggrieved parties to sue educational institutions over non-compliance with its provisions.

Moreover, the civil lawsuits authorized by the bills are alarming.  A student can bring a cause of action against an educational institution if they are deprived of an opportunity to participate in an athletic sport or on an athletic team “or who suffers any direct or indirect harm as the result of a violation” of the proposed law.  In light of the number of students who may not be selected for a given team and the number of other persons that could be “indirectly” harmed by that outcome, the bills are certain to generate litigation.

In addition, the bills authorize an educational institution “that suffers any direct or indirect harm” to bring causes of action against a “governmental entity, licensing or accrediting organization, or athletic association or organization for injunctive relief, damages, and any other relief available under law.”  Consequently, it appears that the bills appreciate the discrepancy between the WIAA’s rules and the legal mandates imposed by the bill, but require the District to sue others (such as the WIAA) to obtain relief; the bill does not simply prohibit the practices that follow from, e.g., WIAA rules.

Moreover, it is generally acknowledged that federal courts having jurisdiction over the State of Wisconsin have determined that Title IX applies to, and thereby affords protection to transgender students.  See, e.g., Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7^th Cir. 2017). The Whitaker decision established that a student’s gender identity can be a basis to pursue alleged violations of Title IX where, as was at issue in this case, the school allegedly engaged in sex-stereotyping based on the student’s gender assigned at birth, rather than affording the student the treatment associated with the student’s identified gender. In so doing, the court acknowledged that under Title IX a student’s sex may not be the gender assigned to that student at birth.

This prompts any number of concerns.  The Kenosha case involved a transgender student’s request to use the boys’ restroom.  The court concluded that the student had a right under Title IX to do so, because the student identified as male. 

Wisconsin law requires that every school board “[p]rovide and maintain enough suitable and separate toilets and other sanitary facilities for both sexes at each school.”  Wis. Stat. §120.12(12).  The court’s decision ordered the school district to allow the student to use the boys’ bathroom, notwithstanding this provision, suggesting that the court applies its definition of “sex” to this state law provision, or alternatively, that the mandates of Title IX supersede the implications of state law in this regard. 

Turning to the proposed legislation, if the 7^th Circuit Court of Appeals concluded that a student has a similar, Title IX-based right to try out for the team whose gender he/she identifies with, the court would have difficulty upholding the bills at the same time if they were to become law.  This is particularly so when, as here, the logical consequences of the bills would effectively require some level of segregation of students in a manner that may not be compatible with Title IX.

Finally, the bills are not consistent with current WIAA policy for transgender athletes’ participation in interscholastic sports.  WIAA policy holds that it is possible for a transgender student to play for a team under WIAA regulations whose gender he/she identifies with.  This is not to say that a transgender student can join a team based on their word alone:  a transgender student must meet a series of requirements and produce the medical documentation the WIAA deems necessary for school officials to make determination of eligibility under WIAA rules.

Therefore, if these bills pass, state law may ultimately be at odds with current WIAA regulations as well as with Title IX, as it has been interpreted in our courts.  These scenarios could make for an explosive situation when students get back to school if this legislation passes.