By Deb Risden
On May 8, the El Paso County School District 49 Board of Education approved Policy JBA-Preserving Fairness and Safety in Sports. The policy bans transgender athletes from competing on teams matching their gender identities. The next day, the district filed a lawsuit against the Colorado High School Activities Association (CHSAA), the Colorado Civil Rights Division and Colorado Attorney General Phil Weiser.
The policy and subsequent lawsuit comes on the heels of a letter written to CHSSA on April 14, signed by representatives from 24 Colorado school districts, demanding: “the Colorado High School Activities Association must immediately adopt rules and practices to ensure that boys are not permitted to compete as girls in girls’ sports. This action is not only a matter of safety and fairness for our female athletes, but also aligns with recent federal directives that reinforce the protection of women’s sports under Title IX.” The letter cites President Trump’s Feb. 5 executive order, “Keeping Men Out of Women’s Sports.”
Peter Hilts, D 49 superintendent, said CHSSA’s policy has been to allow local school districts to make decisions. In Article 3 of its bylaws, CHSSA states that its members will ensure all students have equal access and opportunities to participate in sports “without unlawful discrimination based on disability, race, creed, color, gender identity, sexual orientation, religion, age, national origin or ancestry.” It further clarifies that transgender students have a right to participate.
Hilts said CHSSA’s bylaws are incoherent. “Article 2830.1 states that allowing male athletes to compete in female sports would severely limit participation of female athletes … that allowing male athletes to participate in female sports would destroy the intent of the association to promote and encourage growth of female involvement in athletic programs,” Hilts said.
“We asked them before we went to court to resolve the inconsistency and they declined. They took a non-position,” Hilts said.
The lawsuit filed by D 49 states that Colorado’s Anti-Discrimination Law (CADA) is in violation of Title IX by allowing transgender students to play on sports teams that align with their gender identity. Title IX prohibits sex-based discrimination in all areas of education, including participation in sports, based on sex, gender identity or gender expression. Title IX’s protections cover those educational institutions that receive federal funding.
The lawsuit filed by D 49 states that Colorado’s Anti-Discrimination Law (CADA) is in violation of Title IX by allowing transgender students to play on sports teams that align with their gender identity. Title IX prohibits sex-based discrimination in all areas of education, including participation in sports, based on sex, gender identity or gender expression. Title IX’s protections cover those educational institutions that receive federal funding.
Hilts said that Trump’s executive order and subsequent threats to withdraw funding from schools that allow transgender women to participate in women’s sports is only one factor in the decision to put a policy in place. “As elected officials, board members have a responsibility to consider all factors –— state legal and constitutional, federal legal and regulatory.”
D 49’s JBA policy states the district’s athletic teams are designated based on a student’s biological sex determined at birth as either “male, men or boys; female, women or girls; or coed, mixed or open.” Further, athletes will be assigned locker rooms and hotel rooms when traveling based on their biological sex.
Hilts said, “We believe Policy JBA is our best effort to protect access for girls and privacy for boys and girls.”
Prior to the JBA policy, Hilts said there was no specific policy. “We do have a policy that we, as a member of CHSSA, comply with their bylaws. This is a question of athletic eligibility and CHSSA is the governing association,” Hilts said.
Hilts said there have been no recorded incidents in the school district that have prompted concern about transgender girls in sports thus far.
Ollie Glessner, communications and advocacy director of Inside Out Youth Services, said, “If they wanted to solve a problem, they would write a policy to solve that problem. But there wasn’t a problem. As far as anyone can tell, there are no transgender athletes in D 49.”
Hilts said parents did not weigh in on the policy and lawsuit, although they let their voices be heard. “The voices that we heard were mixed both in position and intensity,” Hilts said.
Policy JBA was discussed during the April and May BOE meetings. During the public forum portions of those meetings, 27 people spoke against the policy and 20 spoke in favor of the policy. Those in favor expressed issues with the physical strength of men that gives them an unfair advantage in women’s sports, along with issues around privacy in locker rooms and while traveling with the teams. Those against the policy said decisions about transgender athletes should be handled on a case-by-case basis due to wide variances in individuals who are transitioning from their biological sex; as well as the potential for costly lawsuits against the district.
Most public comments opposed to the policy addressed the impact on transgender student mental health and the potential for bullying. Glessner said the policy includes language stating there are two sexes recognized. “No other district policies are written like that, with a legal brief or justification. The language is harmful and inaccurate,” she said.
There is research about policies that target transgender youth and the impact on youth, Glessner said. “Policy influences culture, which influences practices. If there is a harmful policy, that (policy) is going to enable, allow and sometimes encourage people to be harmful,” she said.
Glessner said if D 49’s goal is to protect cisgender girls (a reference for those who as adults identify with the same gender they were given at birth), then policies such as JBA will cause harm. She provided a recent example of a member of a Utah Board of Education who falsely implied on social media that a student who had masculine features was transgender. The student, who was not a transgender female, was reportedly bullied to the point of needing to hire security for her and her family. “This harms cisgender girls if they don’t conform to others’ ideas of femininity,” Glessner said. “It puts every single one of us in narrowly defined boxes; and, if for some reason we don’t fit inside those boxes, we are assumed to be something we’re not, or deviant.”
Hilts said the JBA policy is meant to protect girls, their opportunities and their access. “I don’t think that susceptibility to bullying is based on class (groups who are legally protected) as much as it is in individuals,” he said. In cases of bullying, Hilts said their schools handle it the same as any incident of misconduct, through investigation and appropriate consequences.
As part of the lawsuit, D 49 has asked to be awarded the district’s costs and expenses of the suit, including attorneys’ fees.
“It’s an intentional waste of D 49 taxpayer money, an intentional decision to use a limited budget that’s getting more limited every year for fighting a culture war that has no impact because there are no cases. It showcases an unfortunate priority. It’s not an actionable policy because there are no known cases of transgender athletes. It’s not the intended impact,” Glessner said.
Hilts said the district’s position is that the cost of the lawsuit is likely to be less than future actions against the district. “We made a determination that it was better stewardship to assert the policy and defend it than to be passive and wait for a time or a venue that might be more expensive and less favorable,” he said. Hilts did not disclose their analysis of potential future costs.
They are anticipating that other school districts might join in the lawsuit, although none have officially announced their intention.
Hilts said D 49 hopes the outcome of the lawsuit is “for CHSSA to change its bylaws and the state of Colorado will recognize that the Anti-Discrimination Act is inherently contradictory to Title IX and federal guarantees of equal protection.” He said if this does not happen, the district will proceed within the court system.
“We believe that parents in our community trust us to protect opportunities for girls and privacy for boys and girls, and that we are good stewards in defending our policy,” Hilts said. “We believe that defending the policy protects the district from liability.”
