This Article discusses the discrimination of transgender students who may be excluded, discouraged, or simply made to feel uncomfortable participating in athletic programs for their natal sex, by the sex-segregated world of athletics. The Author believes that until sports' governing bodies develop and enforce policies of inclusion, transgender students will continue to be denied access to and the benefits of athletic participation. The Author examines the values that should go into the formation of such policies, including legal, medical and educational concerns. Part I of the Article puts transgender students' athletic participation in context by examining educational athletic's deep and long standing reliance on sex and gender as a central organizing principle. Part II describes the existing policies and positions that organizing bodies of sport have developed to address participation by transgender athletes in sex-segregated sports. Part III describes the role of law and science in the development of such policies, and concludes that both regimes are limited in their ability to define the proper balance between an individual's right to participate in athletics and countervailing concerns about fairness to other athletes. The Article concludes with the suggestion that the current dearth of policies regarding transgender-athlete participation creates both the need and opportunity for educational institutions to craft inclusive policies that incorporate educational values as well as legal and science-based considerations.
21 Seton Hall J. Sports & Ent. L. 1 (2011)