Board of Directors
Minnesota State High School League
Dear Sir or Madam:
Peace be with you; I hope you are well.
I write to express the Catholic Church in Minnesota's opposition to the draft "Policy Regarding Participation of Transgender Students" ("Policy"), which I understand will be considered at your August meeting. We believe that it is not a policy that serves the best interests of students for multiple reasons. The Policy I) is founded on a controversial and contested understanding of the human person; 2) is not required by state or federal law; 3) has no exemptions or accommodations for schools or students who do not embrace transgenderism; 4) does not specify the sanctions for schools that decline to participate in the policy; and 5) raises public safety and liability concerns. Please reject this Policy.
Underlying concern with the Policy: Policy is based on contested understanding of gender
Gender identity disorder (GID) and gender dysphoria (GD) are controversial topics to be sure. With their origins unknown, debate continues as to whether they should be addressed as psychological or psychiatric disorders or should be accommodated in some way by hormone and other therapies and transgender surgeries. Certainly, for many of those who experience these conditions, they constitute a challenge that should not be dismissed from our concern and care.
The Catholic Church condemns discrimination and supports ways to ensure that all students have access to both educational and extracurricular opportunities. An important aspect of our teaching is that persons who experience gender identity disorder, similar to the challenges of those who experience same-sex attraction, "should be accepted with respect, compassion and sensitivity. Every sign of unjust discrimination in their regard should be avoided." (Catechism of the Catholic Church § 2358.)
The Minnesota Catholic Conference submits that, based on policy-related concerns to be discussed, differential treatment that limits eligibility according to one's biological identity as male or female, and not according to one's self-identification, comports with justice and the common good. If enacted, the Policy instead would violate established principles of justice contrary to the common good.
Students may believe that they are "trapped in the bodies of the wrong sex" and desire to be recognized as the opposite gender, but this desire reflects an underlying disordered perception of self. It is as though the person ("me" or "I") is merely a soul or spirit-consciousness, and the body is just a "shell" and not really part of "me" and can be changed at will-a type of "dualism." (It seems counter-intuitive that an organization primarily focused on athletics, such as MSHSL, would consider embracing a view that the body is only incidental to personhood.)
Sexual reassignment appears to offer a medical and possibly surgical solution for a psychological problem. But the research of Dr. Paul McHugh of Johns Hopkins University Medical Center which has stopped doing sex-reassignment surgery at its facilities-underscores the host of psychological problems that embracing such a worldview and performing these treatments and surgeries creates in people's lives. A recent op-ed by him that appeared in the Wall Street Journal is included for your consideration.
Further, a 2011 study at the Karolinska Institute in Sweden followed 324 people who had sex reassignment surgery (191 male-to-females, 133 female-to-males) from 1973 to 2003. The overall rate of death was higher than expected, with suicide being the leading cause. Those who had the sex-change surgery were almost 20 times more likely to take their own lives than the non-transgender population. They were also more likely to seek in-house treatment for psychiatric conditions. It does not appear that this Policy follows its own guiding principles of being rooted in "sound medical knowledge and scientific validity."
Fundamentally speaking, recognizing a student's "preferred gender" does not really change the child's gender; the process they undertake does not accomplish what is pursued. Surgery and drugs do not ultimately change who we are as created male or female, and we need to consider the implications and tremendous imprudence of allowing children to choose their gender at a vulnerable age (and seek medical treatment to attempt to do so) when we do not even allow them to buy beer or get a tattoo without their parents' permission. The Policy ultimately fails to consider the deeper truth that gender cannot be reassigned and embraces a contested and empirically U11verified view of the human person that, as a practical and pedagogical matter, is potentially very harmful to students.
The Policy is not required by Minnesota or Federal Law
We do not know where this Policy originated, though it is almost certainly being pursued with the best of intentions and with real concern for students struggling with gender identity. Still, it is important to clarify that this Policy is not required by state or federal law.
Minnesota state law explicitly does not require the Policy. In fact, the Minnesota Human Rights Act specifically exempts "locker rooms and similar places" from its ban on discriminatory practices, and the Human Rights Act's protections do not apply to youth sports organizations, at least in tl1e organization's ability to mal(e distinctions based on sexual orientation (which, by statute, includes "gender identity"). Mi1111. Stat. § 363A.24 states:
Subdivision 1. Restrooms, locker rooms, and similar places. The provisions of section 363A.l l relating to sex, shall not apply to such facilities as restrooms, locker rooms. and other similar places. The provisions of section 363A.l l do not apply to employees or volunteers of a nonpublic service organization whose primary function is providing occasional services to minors, such as youth sports organizations, scouting organizations, boys' or girls' clubs, programs providing friends, counselors, or role models for minors, youth theater, dance, music or artistic organizations, agricultural organizations for minors, and other youth organizations, with respect to qualifications based on sexual orientation.
Similarly, the Minnesota Supreme Court has held that an employer's designation of an employee restroom based on biological gender is not sexual orientation discrimination against a transgendered former employee. Goins v. W Grp., 635 N.W.2d 717 (Minn. 2001).
The Policy also raises questions about whether it is consistent with state law that works to ensure athletic opportunities for women. Minn. Stat. §363A.24 states:
Subd. 2. Athletic team, program, or event. The provisions of section 363A. l l relating to sex, do not apply to restricting membership on an athletic team or in a program or event to participants of one sex if the restriction is necessary to preserve the unique character of the team, program, or event and it would not substantially reduce comparable athletic opportunities for the other sex.
Allowing boys to play as girls seems to jeopardize the competitive playing field for women. Again, despite surgery and hormone therapy, what the Policy deems "MTF" persons are still males (as a matter of genetics), and vice versa. This will very likely alter the competitive balance in girls' sports.
Though it has its own corporate status, the Minnesota State High School League is still a form of "state actor." Therefore, it could be subject to litigation were it to enforce this Policy and punish member schools or students in a way that is plainly inconsistent with Minnesota law.
At minimum, exemption from the policy is due religious schools; students' privacy should also be protected
Setting aside the propriety and legality of the Policy, the Policy should be amended and exemptions should be afforded to private religious schools (including our many MSHSL member Catholic schools) that object to accommodating a student's self-selected gender identity.
Minnesota has a strong tradition of exempting nonpublic schools from a wide range of requirements to protect their institutional integrity. And Minnesota law gives wide latitude to religious associations, and accommodates those institutions' beliefs about sexual orientation and gender identity. The Minnesota Human Rights Act explicitly states:
Nothing in this chapter prohibits any religious association, religious corporation, or religious society that is not organized for private profit, or any institution organized for educational purposes that is operated, supervised, or controlled by a religious association, religious corporation, or religious society that is not organized for private profit, from:
(2) in matters relating to sexual orientation, taking any action with respect to education, employment, housing and real property, or use of facilities. This clause shall not apply to secular business activities engaged in by the religious association, religious corporation, or religious society, the conduct of which is unrelated to the religious and educational purposes for which it is organized...
Minn. Stat. § 363A.26(2). Minnesota state law requires that the MSHSL provide explicit exemptions to its policy. For example, schools should not be required to accommodate a transgender student's locker room or restroom facilities preferences. Though a school may make separate accommodations for such persons, it need not accede to any student's request to use a particular locker room or restroom facility. It may, but need not, provide separate accommodations for transgender students in a way consistent with the school's beliefs and resources.
We are concerned that without these explicit accommodations, schools that refuse to follow the policy and accommodate the request of each transgender student will be sanctioned by MSHSL or denied membership in its activities. Similarly, what about when schools refuse to place a transgender student on the team of their choice within their own school? Or, what if an all-boys or all-girls Catholic school forbade admission to a transgender student? Will schools face sanctions or penalties? Private, religious schools should be allowed broad latitude about, for example, who gets to play on their teams, yet this is not clear from the Policy. The MSHSL Board should question the prudence of adopting a policy containing so many unanswered questions and pitfalls.
And what about students who refuse to use facilities because they feel unsafe by the presence of someone of the opposite sex in their locker or restroom facility? All individuals have the constitutionally protected right of privacy in shielding one's body from exposure to persons of the opposite biological sex in situations involving partial or full disrobing in close quarters. The MSHSL Policy says MSHSL will make accommodations (and expend its resources) for transgender students who want facilities, but why not also make accommodations for other students who request them? This seems fair to accommodate their legitimate right to privacy.
In no way does accommodating the concerns of religious and other schools and students jeopardize any student's participation in MSHSL activities. Instead, what such accommodations provide, if the MSHSL is intent on adopting the policy, is a genuine pluralism with respect to contested visions of the human person and child well-being (whatever the ground of the objection). Should the Policy be adopted, it should provide a blanket exemption for private schools that object, particularly religious schools.
The Policy creates liability and safety problems for member schools
As already noted, the Policy is unclear about potential sanctions a member school may face from the MSHSL from noncompliance with the Policy. The Policy is also unclear about the process by which complaints made by students against a member school are adjudicated (complaints other than the determination by the school which the child attends that he or she qualifies for MTF or FTM status).
Another issue is that the Policy creates legal liability for schools when accommodating student facility preferences. Certainly, the defense that a school followed MSHSL policy will not likely be adequate when, for example, an MTF transgender student assaults or attacks a female student in a female facility. What if males assault an FTM student in a male facility? What if a transgender athlete injures another athlete of the opposite sex while in play or vice versa? Will the MSHSL indemnify member schools for complying with the Policy?
This issue of liability also highlights the important safety concerns raised with putting students in locker rooms with students of the opposite sex. Beyond the privacy concerns already mentioned, the safety and well-being of children need to be thoroughly considered with this Policy. There may not be many "opportunists" looking to take advantage of the Policy (given the certification process), but biological facts and the predatory sexual proclivities of human beings cannot be wished away.
The process by which this Policy has been developed has not been adequate
We learned of this proposed Policy almost by chance. When I inquired about its status on June 2nd, I was told by Mr. Dave Stead only that it would be considered al the August directors meeting and that I may not have a copy as it was in draft fom1. My further inquiries as to the process by which this Policy was developed and whether there would be an opportunity for stakeholders to offer input went unanswered, even though I expressed that we may have some significant concerns.
I was able to obtain a copy of the Policy by a third party, and the version I have is the one included in this mailing (to ensure you know that our concerns are specific to the draft we have obtained and not necessarily any subsequent draft).
I think you have a duty to inform your member schools about this proposal and seek their input and concerns, as well as encourage them, in tum, to infom1 students and parents about the proposed Policy.
We stand ready to work with the MSI-ISL board on this matter, both to share in more detail why we think the Policy is unwise, and also to explore ways of trying to accommodate everyone's legitimate needs and concerns.
Thank you for your consideration.
Jason A. Adkins, Esq.
Executive Director & General Counsel
1. The Catholic Church agrees with the metaphysical proposition, informed by biblical theology, that the body and soul of the human being are united, such that one's sexual identity is rooted in one's biological identity as male or female. See Catechism of the Catholic Church§§ 364,365, 2332, 2333, 2393. Thus in Catholic teaching, sexual difference is considered "1a reality deeply inscribed in man and woman." Congregation for the Doctrine of the Faith, Letter to the Bishops of the Catholic Church on the Collaboration of Men and Women in the Church and in the World, no. 8 (2004). The Church regards tl1is view ofreality as normative, obliging men and women to accept their biological identity as their sexual identity. See Catechism at§ 2393 ("By creating the human being man and woman, God gives personal dignity equally to the one and the other. Each of them, man and woman, should acknowledge and accept his [and her] sexual identity."). "If the Church speaks of the nature of the human being as man and woman, and demands that this order of creation be respected, this is not some antiquated metaphysics.
What is involved here is faith in the Creator and a readiness to listen to the 'language' of creation. To disregard this would be the self-destruction of man himself, and hence the destruction of God's own work. What is often expressed and understood by the term 'gender' ultimately ends up being man's attempt at self-emancipation from creation and the Creator." Pope Benedict XVI, "Address To The Members Of The Roman Curia" (Dec. 22, 2008).
2. http://www.plosone.org/artic1e/info%3Adoi%2Fl 0.1371%2Fjournal.pone.0016885
3. This Policy resembles gender identity legislation that in other places is part of a movement to persuade the courts and legislatures to establish what one author refers to as "a right to gender self-determination" that "transcends the binary" and overrides "a legal regime which vigilantly polices the brutal boundaries of male and female," and thus the legislation raises provocative philosophical questions. See Laura K. Langley, Self-Determination in a Gender Fundamenlalisl State: Toward Legal Liberation oJTransgender Identities, 12 Tex. J. on Civil Liberties & Civil Rights IOI, IOI, 103 (2006-07).
4. 'Approximately 80-85 percent of Catholic children attend public schools. We are concerned about what such a policy communicates to our students, particularly the medical legitimacy and moral soundness of transgenderism and sex re-assignment.
5. It must be remembered always that there is a necessary distinction, very often ignored, between unjust discrimination (the arbitrary limitation of freedom) and the necessary limitation placed on human activity whenever such actions would interfere with the just rights of others and harm society. All people of good will must oppose unjust discrimination. However, there are times in our lives when each of us experiences the pain, discomfort, and challenges of necessary limitations on our freedom whenever there is a prudent judgment that the common good is at stake.
6. The Obama Administration does argue that Title IX requires schools that receive federal funds to grant transgender student certain rights. But nothing in the plain language of Title IX requires such a policy, and in fact, the Administration's position amounts to nothing more than cabinet officials attempting to rewrite laws on their own initiative.
7. Even if the MSHSL were adopting this Policy based on the Obama Administration's understanding of Title IX, religious schools are clearly exempted from Title IX. Specifically, 20 U.S.C. § 168l(a)(3) provides: "this section shall not apply to an education institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization." Thus, Title IX clearly authorizes an exemption for religious schools such as Minnesota's Catholic high schools.
8. The definition of sexual orientation includes "gender identity." See Minn. Stat.§ 363A.03, subd. 44.
9. Some may counter with the argument that we would not accommodate a school's decision to behave with racial animus. But racism, which is an irrational hatred for a person based on an immutable attribute, is fundamentally different than well-reasoned moral and religious opposition to particular conduct. Minnesota law makes this very distinction and has much broader accommodations in the Human Rights Act for those who have moral objections to homosexuality and transgenderism.
10. Single-sex services, programs, and facilities take into account the sensitive nature of having to partially or fully disrobe in front of others, an experience of invaded privacy that, when occurring in the presence of members of the opposite biological sex, increases diametrically the sense of one's personal vulnerability. Single-sex policies are designed to shield persons from having to disrobe in the presence of, or from witnessing bodily exposures by, members of the opposite biological sex. The right to privacy applies independently from the issue of security, for even the most secure areas that nonetheless allow access to persons of the opposite sex, thereby increasing the risk of unavoidable opposite-sex bodily exposure, violate the right. In effect, the Policy would require the MSHSL to elevate the interests of those, who, for whatever reason, wish to enter restrooms and like facilities designated for persons of the opposite biological sex and where bodily exposure regularly occurs, over the fundamental, constitutionally protected privacy interests of those who desire to prevent such exposure by avoiding opposite-sex settings. Changing the Jaw in a way that disassociates "gender identity" from biological references cannot change the reality of physiological sexual difference which forms the very basis of the privacy right at issue.