Missouri Limits Transgender Athletes’ Participation in Sports

Last week, Missouri joined 23 other states when it passed legislation that restricts transgender athletes’ ability to participate in school sports. Senate Bill 39 (“SB39”) prohibits schools from allowing student athletes to compete in competitions that are designated for the “biological sex opposite to the student’s biological sex” as indicated on the student’s birth certificate “at or near the time of the student’s birth.” Missouri schools are left with no clear guidance on how to comply with SB39’s restrictions and, at the same time, remain in compliance with the anti-discrimination protections of Title IX and the Missouri Human Rights Act (“MHRA”).

The restrictions in SB39 apply to all schools in Missouri, including private and public elementary, middle, and high schools, public school districts, and private and public institutions of postsecondary education, including, universities, trade schools, and colleges. A school that violates SB39 sacrifices its funding from state aid and “any other revenues from the state.” SB39 also grants a private cause of action to parents or guardians of a student, or any student over the age of 18, “who is deprived of an athletic opportunity as a result of a violation of the act.” SB39 makes one exception to its ban: It allows female students to compete in athletic competitions designated for male students if a “corresponding athletic competition designated for female students” is unavailable.

Through Executive Order and U.S. Department of Education guidance, Title IX’s protections against discrimination based on sex include protections against discrimination on the basis of gender identity and transgender status. An educational institution that fails to comply with Title IX could put its federal funding at risk, including federal student loan monies from which it benefits. If a school receives federal funding, the programs and activities the school sponsors—including its athletic program—are covered by Title IX. Public K-12 schools receive federal funding, while most private K-12 schools generally do not.

The Department of Education recently proposed changes to its Title IX regulations in response to the growing conversation surrounding transgender athletes participating in women’s athletics. According to the proposed changes, categorically banning transgender students from participating in athletic competition with and against student athletes consistent with their gender identity is impermissible and violates Title IX. When the proposed changes to the Title IX regulations go into effect, Title IX and SB39 seem at odds.

Likewise, the Missouri Human Rights Act’s prohibition on sex discrimination in public accommodations, including schools, may include protections against discrimination based on gender identity. In R.M.A. by Appleberry v. Blue Springs R-IV Sch. Dist., 568 S.W.3d 420, 427 (Mo. 2019), the Missouri Supreme Court reversed a trial court’s dismissal of a claim under the MHRA in which the student challenged the school’s decision to exclude him from the locker room and restroom that aligned with his gender identity. To comply with SB39, a school must exclude categorically a student-athlete from participation in an athletic competition on the basis of the student’s gender identity. Thus, it seems the MHRA, as construed by the Missouri Supreme Court, may run counter to SB39’s ban.

SB39 goes into effect on August 28, 2023. Given the aforementioned challenges, please do not hesitate to contact one of our experienced education attorneys to guide your school through the implementation of and compliance with SB39 and any consequences that may result.