“The Intersection Between Religion and Inclusive K-12 Athletic Participation” by Suzanne Eckes

Image by Wutthichai Charoenburi (CC BY 2.0).

Religious rights and civil rights sometimes collide in public schools. In earlier cases, religious rights arguments were sometimes used to maintain racial segregation in schools, which obviously conflicted with the rights of students of color. In later cases, students made religious freedom arguments to justify wearing racially insensitive apparel to school. To illustrate, in one Fourth Circuit court case from 2013, a student who wore Confederate flag t-shirts to school argued that she had the right to freely exercise her religious rights under the First Amendment to do so. The student lost her case. Other challenges have pitted religious rights against the rights of LGBTQ+ students. In a 2006 Ninth Circuit court case, a student contended that he had a religious right to wear an anti-LGBTQ+ t-shirt to school that said “Be Ashamed, Our School Embraced What God has Condemned” on the front and “Homosexuality is Shameful” on the back. The student lost his case.

From a legal standpoint, it does not appear that there is any intersection at all between religion and student participation in a K-12 public school’s sports program.

In more recent litigation that focuses on transgender students, the intersection with religion is not always as apparent. Specifically, unlike the plaintiffs referenced above, the plaintiffs in these more recent cases are framing their claims around gender equity concerns instead of religious freedom arguments. One case in point concerns a recent challenge to a state interscholastic athletic conference policy that would permit transgender students to participate in high school sports programs at school. From a legal standpoint, it does not appear that there is any intersection at all between religion and student participation in a K-12 public school’s sports program. However, some religious-affiliated groups are getting involved in litigation focused on this topic. Likewise, recently proposed state legislation, which also prohibits transgender students from participating in K-12 sports programs, is being crusaded under the guise of Title IX and equal opportunity in girls’ sports, with no obvious connection to religion. This commentary briefly explores what should be the lack of intersection between religion and inclusive K-12 athletic programs.

Recent Litigation

In Connecticut, four cisgender high school girls filed a lawsuit claiming that the state Interscholastic Athletic Conference (“the Conference”) and its member schools are violating Title IX of the Education Amendments of 1972 by denying them equal opportunities for participation in athletics due to transgender students participating in high school athletic teams that align with their gender identity. In Soule v. Connecticut Association of Schools, the students contended that this policy may have affected their ability to earn top finishes in races; they also believed that the policy may have had a negative impact on their chances to acquire college scholarships. The plaintiffs are not relying on religious rights arguments, but have framed their legal claims around fairness and the ability to compete.

A federal district court held that the cisgender students’ claim was moot because the transgender students who participated on the girls’ track team had all graduated. The Conference’s motion to dismiss this case was granted; the district court did note that courts across the U.S. have consistently ruled that Title IX requires schools to treat transgender students consistent with their gender identities. The student plaintiffs appealed the decision to the Second Circuit and in December 2022, it affirmed the lower court’s decision. According to the circuit court, a student’s eligibility to participate on a gender-specific sports team is based on “the gender identification of that student in current school records and daily life activities in the school and community,” and the school district’s “determin[ation] that the expression of the student’s gender identity is bona fide and not for the purpose of gaining an unfair advantage in competitive athletics.” The plaintiffs appealed the case, and the Second Circuit agreed to hear the case en banc.

As noted, the legal claims initiated by the cisgender students in this case were not focused on religious rights. This is not surprising because there is really no substantive or plausible claim that could be argued under religious freedom. The organization representing the cisgender students in the Connecticut case is the Alliance Defending Freedom (ADF). The ADF is the country’s largest legal organization that is committed to protecting religious freedom. The ADF’s complaint in this lawsuit focused on fairness and equity for cisgender girls’ participation in athletics. To some, this might appear to be a noble cause. Interestingly, though, the ADF has not been involved in litigation involving girls’ opportunities to participate in K-12 school athletics in the past. Specifically, there have been several earlier legal cases involving girls’ opportunity to participate equally in school athletic programs (e.g., Cruz ex rel. Cruz v. Alhambra Sch. Dist., Myers v. Bd. of Educ. Of Batavia City Sch. Dist., Ollier v. Sweetwater Union High Sch. Dist., Parker v. Franklin Cnty. Cmty. Sch. Corp.), and the ADF has not appeared to have been included on any amicus briefs or represented female plaintiffs in litigation on athletic cases that did not involve transgender students. The ADF has, however, expressed support in litigation specifically targeting LGBTQ rights in other types of cases (e.g., Lawrence v. Texas, Ricard v. USD 475 Geary Cnty, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission). With regard to the Soule case in Connecticut, one might conclude that the ADF is using sports to advance its religious objections to transgender people. 

State Legislation

State legislatures are also weighing in on the matter and questions have arisen about the laws having a connection to religious interests. Specifically, several states have proposed or enacted legislation that would prohibit transgender students from participating on school athletic teams that align with their gender identities. Such legislation proposed by the state should, of course, have no connection to religion. Given the lack of connection to religion, similar to ADF’s approach, the states are relying on arguments related to girls’ ability to fairly compete in K-12 athletic programs. It is ironic to see states become so interested in fairness around female athletic programs; there did not seem to be this much attention at the state level when girls’ teams experienced discrimination with regard to substandard facilities and opportunities to compete in sports throughout the past several decades.

Given the lack of connection to religion, similar to ADF’s approach, the states are relying on arguments related to girls’ ability to fairly compete in K-12 athletic programs.

Florida recently proposed such legislation and framed it around giving girls a fair shot to compete in school athletic programs. Yet, according to the Center for American Progress and the American Psychological Association, there is a lack of evidence that transgender kids participating in school sports has had any measurable impact or caused any harm on cisgender athletic participants.

Governor Ron DeSantis invited one of the plaintiffs from the Soule litigation to his signing of the law on the first day of Pride Month, June 1st, at Trinity Christian Academy, a private evangelical K-12 school. This school’s Statement of Faith includes the following: “We believe that any form of homosexuality, lesbianism, bisexuality, trans-sexuality, bestiality, incest, fornication, adultery, and pornography are sinful perversions of God’s gift of sex.” It is unclear why Governor DeSantis would choose to sign the bill at this particular school, given that the law does not apply to this school and private religious schools are already permitted to discriminate against LGBTQ+ students in Florida. The Freedom From Religion Foundation referred to the signing as a “religious photo-op.” It is unclear if choosing this day and this particular school was meant to send a message or if it was just coincidence — but evidence suggests that it was not the latter.

One would hope that states are not using sports to advance their objections to transgender people. Yet, media outlets have noted that the Republican-led legislatures are proposing such laws to appease evangelical voters and that some state legislators are invoking religion when advocating for various anti-LGBTQ-related laws. Other reports indicate that some states rely on religious organizations to help draft the anti-transgender legislation and that this legislation is sometimes a coordinated effort among select religious leaders. It’s also noteworthy that certain religious groups have been training state legislators on crafting anti-transgender legislation and promoting “God-honoring policies.”

Closing Thoughts

The American Bar Association has outlined some of these tensions between religion and transgender rights. Within the discussion at hand, the connection between K-12 sports and religion is indeed curious. Whether to allow a third-grade transgender student to participate on her school’s soccer team, for example, does not seem to be an issue that is connected to religion. This lack of connection may be why the lawsuits and legislation are often presented in terms of equality for girls to participate in sports. The real impetus, however, appears to be religious groups that seek to impose their narrow views on others. As Axios reports, some parties are trying to shape policy based on their theological beliefs related to gender. Other sources suggest that this has only become an issue to rally evangelical voters. Whatever the reason may be, the impact of these exclusionary laws and policies is concerning; research shows the harm to transgender students that such policies cause. It will be interesting to observe how future litigation and state legislation focused on K-12 transgender student-athletes may or may not intersect with religion. If such a connection is found, it may raise legal concerns. For example, if there is evidence of a link between anti-transgender legislation and legislators’ religious beliefs in a particular state, could that state law be challenged for violating the Establishment Clause? This issue also raises important concerns about civil rights versus religious rights at a time when the current Supreme Court seems to be expanding religious rights in schools. Specifically, in earlier cases, students’ civil rights have trumped school officials’ sincerely held religious beliefs in cases involving racial discrimination. More recent cases, however, raise concerns about whether the current Court is elevating religious rights over other rights. In his Yale Law Journal article about the Supreme Court’s recent Carson v. Makin decision, which requires states to include private religious schools in state-funded private school voucher programs, Derek Black wrote that the Court “has justified its shifting religion jurisprudence in the name of equity.” Black notes that some of the justices have relied upon language from earlier sex and race discrimination opinions to demonstrate that religion is facing similar forms of discrimination. Adam Liptak also observed that there has been “an extraordinary winning streak for religion at the Supreme Court.” ♦

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Recommended Citation

Eckes, Suzanne. “The Intersection Between Religion and Inclusive K-12 Athletic Participation.” Canopy Forum, April 22, 2023. https://canopyforum.org/2023/04/22/the-intersection-between-religion-and-inclusive-k-12-athletic-participation/