Shikellamy school directors passed a resolution limiting student athletes' participation in sports based on their biological gender.
Supporters of the district's move say it will protect the rights and safety of girls who play sports ahead of new Title IX regulations that prohibit discrimination based on gender identity in programs which receive federal funds. Those regulations take effect Aug. 1.
"I believe in freedom for all people, I believe everyone should have their own life choices. But this is an infringement on women's rights," Shikellamy School board President Wendy Wiest said of the new Title IX regulations.
"I have three daughters, obviously a woman myself, and we fought too hard for women's rights to just let them go by the wayside," Wiest added.
Conflict with federal, state laws?
Others see Shikellamy's policy as the latest attempt by a school district to deny transgender athletes protections they are entitled to under federal and state laws.
"A blanket, categorical ban on students participating in school sports that align with their gender identity does conflict with Title IX," said Kristina A. Moon, senior attorney with the Philadelphia-based Education Law Center (ELC).
Title IX, which took effect in 1972, states “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
The question of gender identity has become a flashpoint in American society. On one side, broadly, are those who argue gender is defined strictly by the genitals and other physical attributes present at birth. Others argue it is strictly a matter of chromosomes.
On the other are those who refer to those characteristics as "sex," making the case that a person's gender is a more nuanced and complex identity based on factors including how they perceive themselves — perceptions influenced by physiological, psychological and sociological factors.
The new Title IX regulations reflect that evolving understanding of sex vs. gender.
While the new Title IX regulations have been challenged in federal court, Moon said there is no nationwide injunction precluding enforcement. She noted that a federal injunction issued in a Kansas case does have limited applicability in Pennsylvania, affecting six public schools in this state due to their affiliations with "Moms for Liberty," which was a plaintiff in the Kansas case. Shikellamy is not one of those districts.
She also said preexisting case law interprets Title IX independent of this particular rule.
"The closest case on point in our (federal) Third Circuit is Boyertown, which addressed students' right to use the bathroom aligned with their gender identity. And there is a lot of language in that case that recognizes other students' discomfort is not an acceptable reason to deny equitable access to school for trans kids," Moon said, adding that the appeals court found no violation of cisgender students' right to privacy in that situation.
"So all of that makes clear to me that the type of categorical ban that denies any trans student the right to participate in sports aligned with their gender identity would violate Title IX," she said.
Moon added that schools in this state also are obligated to protect students against sex-based discrimination — including gender identity — under the Pennsylvania Human Relations Act.
WVIA contacted the Pennsylvania and U.S. education departments with questions for this story. Neither agency responded.
Shikellamy's resolution
Based in Sunbury, Shikellamy serves that city and several surrounding communities with a student population of just under 3,000, Wiest said.
Shikellamy's resolution was passed unanimously on July 11 by the seven board members who were present, including Wiest.
Its key points include:
- School Board policy states that “the board shall determine the standards of eligibility to be met by all students participating in an interscholastic program."
- The Pennsylvania Interscholastic Athletic Association's 2023-24 handbook states that, "Where a student's gender is questioned or uncertain, the decision of the Principal as to the student's gender will be accepted by PIAA."
- The resolution notes that the U.S. Department of Education released updated final Title IX regulations on April 19, to take effect on Aug. 1, 2024.
- It also states that the Department of Education's rulemaking process is still ongoing for a Title IX regulation related to athletics and the Department intends to issue a separate final rule to address Title IX's application to sex-separate athletic teams.
- It also points to "a U.S. Congressional Research Service legal brief highlighting a proposed rule allowing limitations on participation based on fairness in competition and prevention of injuries."
"The Shikellamy School District Board of Directors strongly supports fairness in competition and student safety," the resolution states, and "affirms that biological males should not participate in biological female sports and biological females should not participate in biological male sports where there is an equivalent sport ..."
Shikellamy Superintendent Jason Bendle said the district has not had any trans athletes participate or attempt to participate in sports of the opposite gender, and that the resolution was a response to the Title IX changes made by the Biden Administration.
"I believe the resolution speaks for itself, however, the resolution that was passed was done in an act of fairness and safety for our female sports programs and athletes," Bendle said.
Asked whether the resolution could be challenged once the new Title IX regulations take effect, Bendle said "any response to this question would simply be speculation."
"The resolution was shared with our local solicitor and he was able to provide the board feedback," Bendle added.
'It's about women's rights'
While some school boards in Pennsylvania have enacted similar resolutions in consultation with external groups, Wiest said she was moved to take action due to her own concerns.
The Shikellamy resolution was inspired in part by a Fox News story she read about the Kennewick School Board in Washington, which passed a resolution stating that biological males should not compete against biological females in sports.
"I felt that it was something I agree with," Wiest said. "I immediately sent it to some of my fellow board members. And I said, 'I want to look into this.'"
Her three daughters all play sports, and Wiest strongly believes that the issue is one of safety and fairness. She said she would never want her daughters or any other female to lose the opportunity to play due to a biological male being awarded a place on a team, or to be injured by a biological male on another team.
"You know there are physical differences, there simply are," Wiest said.
'Second-class citizens'
ELC's Moon said such arguments are based on "misinformation and fear mongering."
"These types of bans do nothing to 'protect' girls. In fact, they only heighten the risk of sex discrimination for all girls who play sports," Moon said.
"There's really been no evidence that there's any negative impact on the participation of girls in school sports in the states that have implemented inclusive athletics policies. There's a CDC study on this," Moon said. Other studies suggest that trans-inclusive policies are correlated with increased participation of girls in school sports, she added.
Corinne Goodwin, executive director of the Eastern PA Trans Equity Project, suggested Shikellamy's board was trying to do an end run around Title IX's regulations.
“If school boards and school administrators are truly concerned about ensuring opportunities for equity in women’s sports they should focus on the things that will truly make a difference," Corinne Goodwin, executive director of the Eastern PA Trans Equity Project, said. "This includes ensuring equal pay for women coaches, ensuring women’s sports facilities are equal to those of men in terms of quality and access, and budgeting an equal amount of funding and support to women’s sports as they do to their school football team.”
"As written, these rules ensure that all students, whether transgender or not, are able to take advantage of the benefits that participation in school-sponsored sports programming creates, while ensuring the safety of their peers," Goodwin said.
"Studies show that participation in school-sponsored athletics yields multiple benefits including higher grades and improved socialization skills," she added. "Ultimately, school sport programs teach our youth how to win with grace, how to lose with dignity, how to play by the rules, and how to support their team members. These are skills that everyone deserves to learn."
"Unfortunately, the members of the Shikellamy school board have sent a clear message — that transgender students are not deserving of these benefits — that they are second-class citizens," Goodwin said.
Ongoing national battle
Shikellamy's resolution is, as noted, only the latest move in a battle that has been brewing nationwide.
In May, the Our Bodies, Our Sports Take Back Title IX Bus Tour
visited the Student Union Gymnasium at Lackawanna College. The coalition, made up of women's advocacy organizations from across the political spectrum, argued that the new regulations put female athletes in danger and give transgender athletes an unfair advantage.
As Moon pointed out, legal actions on both sides of the issue have been proliferating in Pennsylvania and other states. ELC estimates that there are at least 55 districts across Pennsylvania that have proposed or implemented policies which would discriminate against LGBTQ students.
That's a likely undercount, Moon said, because those are only the districts which have sought legal advice or received news attention for their actions.
Goodwin, from the Trans Equity Project, sees such policies not just as discriminatory, but glossing over serious equality issues that need to be addressed.
“If school boards and school administrators are truly concerned about ensuring opportunities for equity in women’s sports they should focus on the things that will truly make a difference," Goodwin said. "This includes ensuring equal pay for women coaches, ensuring women’s sports facilities are equal to those of men in terms of quality and access, and budgeting an equal amount of funding and support to women’s sports as they do to their school football team.”
In Shikellamy, Wiest stands 100% behind her board's decision, and says her community has been supportive of the move.
"I didn't hear anyone that was not supportive. I'm sure there are people. But I did not. And over the years I've heard much advocacy for this subject," Wiest said.
"My hope is that other districts will follow suit, because we really haven't provided a safe and fair environment for our female athletes if the other folks in our league, in our state, in our country, don't adhere to this as well."
