Boston Lawyer BlogMassachusetts Law Prohibits Schools from Complying with Anti-Trans Athlete Executive Order
Youth sports are a huge part of the American education system, something many parents, schools, and communities place a high value on maintaining. Studies demonstrate the many mental, social, emotional, and physical benefits children derive from participating in organized athletics. In fact, during Trump’s previous presidency the President’s Council on Sports, Fitness, and Nutrition Science Board published a pamphlet noting that “Research shows that participating in youth sports can lead to immediate and long-term benefits for youth, their families, and communities.” By executive order and federal agency guidance, President Trump is now trying to deny those benefits to trans girls and women who want to participate in sports with the rest of their peers. The Massachusetts Declaration of Rights, Title IX, and Massachusetts anti-discrimination statutes prohibit schools, colleges, universities, and athletic organizations from following the new executive order.
“Keeping Men out of Women’s Sports”
After issuing an Executive Order defining how the federal government will interpret the word “sex,” and stating that it is the policy of the federal government to recognize two biological sexes, on Wednesday President Trump issued a new executive order: “Keeping Men out of Women’s Sports.” This EO aims to use the executive agencies, administration officials, and representatives to international bodies to ensure that trans women cannot compete in sports. The EO directs the Secretary of Education to take the following actions:
- Take steps to ensure that the Biden Title IX regulations are not used;
- Take action to protect “all-female” athletic opportunities and locker rooms;
- Make sure regulations and policy guidance are clear that “women’s sports are reserved for women”;
- Prioritize Title IX enforcement actions against schools that require women athletes to compete “with or against or to appear unclothed before males”.
The EO also directs all executive departments and agencies to review grants to educational programs and rescind funds from programs that do not comply with the EO. It further seeks to have athletic organizations and governing bodies promote policies consistent with the EO, and to convene state attorneys general to identify best practices in enforcing “equal opportunities for women to participate in sports.” The EO also directs the Secretary of state and U.S. Representative to the U.N. to rescind support for sports programs in which trans female athletes are allowed to compete, to promote the ideology set forth in the EO at the UN, to prevent immigration to the U.S. of trans women who want to compete in women’s sports, and to try to have the International Olympic Committee change its standards to conform to the EO.
Already, the Department of Education (an agency Trump is reportedly working to eliminate), announced investigations into San Jose State University, University of Pennsylvania, and the Massachusetts Interscholastic Athletic Association (MIAA) for allowing trans women athletes to participate in sports. The NCAA announced it will prohibit trans women from competing in sports.
The EO ends with the statement: “This order shall be implemented consistent with applicable law”. The applicable law in Massachusetts prohibits implementation of the order.
The Massachusetts Declaration of Rights Prohibits Sex-Based Discrimination in the Provision of State Services
The Massachusetts Constitution, as amended in 1976 by the Equal Rights Amendment, forbids discrimination: “Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” In the words of the SJC, the Declaration of Rights guarantees “the dignity and equality of all individuals.” As our highest court has held, the “equality safeguards of the Massachusetts Constitution” protects the “‘freedom to’ partake in benefits created by the State for the common good.” Those state-created benefits include athletics programs at public schools and universities, as well as athletic programs governed by the MIAA, which has been held to be a state actor under Massachusetts law.
In the 1970s, the SJC made clear that excluding someone from participating in interscholastic athletics because of their sex is an equal protection violation, rejecting some of the same arguments proponents of limiting sports teams by participants’ sex assigned at birth have used, including concerns about girls’ physical safety in athletic competitions and concerns about diminution of athletic opportunities to (cisgender) girls. In Opinion of the Justices to the House of Representatives, the SJC held that a statute barring girls from participating in contact sports with boys would be unconstitutional. In Attorney General v. Massachusetts Interscholastic Athletic Association, the SJC held that an MIAA rule that created a blanket prohibition on boys playing on girls’ teams would likewise violate equal protection. In coming to these conclusions the Court noted that athletes should be assessed based on their abilities, not their genders, and that purported concerns about safety were not supported by any credible data.
General Laws Chapter 76, § 5 Protects Trans Student Athletes in Public K-12 Schools
General Laws chapter 76, § 5 gives students a right to attend their town’s public schools, and prohibits discrimination “in obtaining the advantages, privileges and courses of study of such public school on account of race, color, sex, gender identity, religion, national origin or sexual orientation.” The regulations implementing this law define “gender identity” as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” The regulations make clear that the “advantages and privileges” of the school include all extra-curricular activities, and specifically state: “A student shall have the opportunity to participate on the team that is consistent with the student’s gender identity.” The Department of Elementary and Secondary Education (DESE) has guidance on creating a safe and supportive environment for trans students in Massachusetts schools.
Chapter 76, § 5 is crystal clear: public schools cannot discriminate based on gender identity and must allow students to participate in athletics consistent with their gender identities. Any school that attempts to comply with the EO banning trans women from participating in women’s sports violates this law.
Federal and State Anti-Discrimination Laws Protect Trans Students in Colleges, Universities, and Private Schools
Title IX itself prohibits sex-based discrimination—including discrimination based on gender identity—in schools receiving federal funding. Courts around the country have recognized that discrimination based on gender identity is discrimination based on sex that violates anti-discrimination laws, including Title IX: Grimm v. Gloucester County School Board (4th Circuit, 2020), Whitaker v. Kenosha Unified School District (7th Circuit 2016), Title VII: Bostock v. Clayton County (Supreme Court 2020) and the Affordable Care Act: Doe v. Snyder (9th Circuit 2022). The Trump executive branch has put forth its interpretations of Title IX and other laws in announcing how the executive branch will enforce those laws, but those interpretations do not replace the language of the statute or the case law interpreting the statute. Students can challenge discrimination based on gender identity in educational institutions that receive federal funding directly under Title IX.
Massachusetts does not have a higher education counterpart to Chapter 76, § 5, or a functional state analogue to Title IX and Title VI—the federal laws that prohibit discrimination in education. Instead, Massachusetts’ Fair Educational Practices Law (Chapter 151C) only prohibits discrimination against U.S. citizens in admissions, and discrimination against students enrolled in vocational school or post-bachelors degree programs. While the statute does not explicitly prohibit discrimination based on gender identity, the Massachusetts Commission Against Discrimination (MCAD), which enforces the law, has noted that discrimination against transgender people may constitute discrimination based on sex, perceived sexual orientation, and/or disability, and therefore may still be prohibited by Chapter 151C. For transgender students at vocational schools or in post-bachelors programs, Chapter 151C may provide an avenue to challenge exclusion from sports teams.
For athletes at private schools, state law protection against gender identity discrimination will come from a patchwork of civil rights laws. The public accommodations law, G.L. c. 272, §§ 92A, 98, specifically prohibits discrimination based on gender identity and makes it illegal to discriminate in any place “which is open to and accepts or solicits the patronage of the general public.” The SJC has read the reach of this statute broadly, applying it not only to physical locations, but to also to entities that provide services to the public. For example, the SJC held that the public accommodations law prohibited a national testing service that administered medical licensing exams in Massachusetts from discriminating against test-takers on the basis of sex. The law applies to the denial of any advantage or privilege offered by the service and does not require proof that the service intentionally discriminated against a protected class. Athletic organizations providing services in Massachusetts would seem to fall under this broad definition of places of public accommodation, and students denied access to those services.
The Massachusetts Equal Rights Act, G.L. c. 93, § 102, (MERA) guarantees all people the same rights as white male citizens—regardless of sex, race, color, creed or national origin—to make and enforce contracts and to the full and equal benefit of the laws. Students’ relationships with their private schools, colleges, and universities, as well as athletes’ relationships with private athletic associations and leagues, are contractual in nature and thus any discriminatory application of those contracts, or denial of rights under those contracts, violates MERA. An entity enforcing the Trump EO and denying trans girls the right to participate in the sports programs it offers violates MERA by treating those athletes differently based on the legal definition of “sex” used by the courts.
If you or someone you know is facing discrimination in education or athletics on the basis of sexual orientation, gender, or gender identity, fill out our online intake form or call us at (617) 742-6020 to be connected with one of our lawyers.
