Department of Elementary and Secondary Education offers little guidance ahead of controversial law affecting student athletes
By ANNELISE HANSHAW
Missouri Independent
Students are returning to the classroom around Missouri this week, and new laws go into effect Monday.
But state officials are still not clear on how they will enforce restrictions on transgender athletes – one of the most controversial new laws approved by Missouri legislators this year.
Neither the Department of Elementary and Secondary Education nor the Missouri State High School Activities Association could say how the restrictions would be administered. Each agency initially directed questions to the other, a situation local school officials say is stoking confusion.
Hanging in the balance is the fate of 10 student athletes who were eligible last year to compete according to their gender identity but who would be prohibited this year.
A separate law that also takes effect Monday, banning gender-affirming treatments for minors, is being challenged in a court case being heard this week in Springfield. St. Louis Circuit Judge Steven Ohmer is expected to decide whether to issue an injunction soon after he finishes hearing testimony.
Prior to this school year, a MSHSAA policy allowed transgender athletes to compete as their gender identity if they had undergone hormone treatments for at least one year.
“Once the law goes into effect, the MSHSAA bylaw on transgender participation becomes invalid,” Jason West, the association’s communications director told The Independent. “As for enforcement of the state statute, the local school and the Department of Elementary and Secondary Education will oversee and administer any penalties. DESE will be determining what type of identification will be required in that regard.”
The new law requires DESE and the Department of Higher Education and Workforce Development to set the rules for the implementation of the ban. But when asked about administering this new law, DESE initially looked to MSHSAA.
Mallory McGowin, a spokeswoman for the department, said MSHSAA was the “most appropriate” source to ask about enforcement of the new law because the organization“oversees all athletics and activities participation statewide.”
She later told The Independent that the two organizations were in communication.
“As MSHSAA policies dictate, it is the responsibility of MSHSAA member schools to verify student eligibility, whether that’s verifying student residency, academic performance, or gender,” McGowin wrote. “Local school district policy and procedure will dictate how that verification takes place.”
DESE can publish administrative rules for the new law in the Missouri Register in the future. The public could comment on the regulations prior to their enforcement.
Administrators are aware of the new law, but with birth certificates not required as part of students’ enrollment process, schools may not have records of students’ sex as assigned at birth.
Schools may also have students on hormone treatments now competing on teams aligned with their sex as assigned at birth. For transgender men, this means they would compete in women’s sports while increasing their testosterone levels.
According to McGowin, these student athletes with hormone treatments are still allowed to compete.
Enforcement at the college level also relies on schools’ interpretation of the law.
Ryan Koslen, spokesman for the University of Missouri Intercollegiate Athletics Department, said in late July that the department was working with its “office of general counsel to determine the best path forward operationally.”
He did not answer a request for an update in August.
While state law bans transgender athletes from competing according to their gender identity, the NCAA takes a sport by sport approach and looks at the hormone levels of athletes.
The organization has publicly threatened to pull championship competitions from locations where law restricts transgender athletes.
“When determining where championships are held, NCAA policy directs that only locations where hosts can commit to providing an environment that is safe, healthy and free of discrimination should be selected,” the NCAA published in an April 2021 statement.
Missouri State University, when asked about their plan of enforcement, didn’t provide specifics.
“We are aware of the law and have articulated the information to our coaching staffs,” Athletics Director Kyle Moats wrote in an email. “We will also continue to follow the guidance of the NCAA as its policies evolve.”
Twenty-three states have established restrictions on transgender athletes since 2020 — some of which are currently unenforceable pending litigation. The Movement Advancement Project, a nonprofit think tank that maps LGBTQ policies, estimates that 34% of transgender youth ages 13-17 live in states with laws restricting their participation in sports.
In Arkansas, enforcement of its state law on transgender athletes extends to the attorney general’s office. After passing the initial ban on transgender athletes, Arkansas lawmakers created the Gender Integrity Reinforcement Legislation for Sports Act to allow the attorney general to sue schools that knowingly violate the law.
Oklahoma, which has had its ban for a year, requires athletes’ parents to sign an affidavit stating their child’s sex as assigned at birth.
At the federal level, a change to Title IX could reverse Missouri’s restrictions.
In April, the U.S. Department of Education announced proposed changes to Title IX that would prevent “one-size-fits-all” policies regarding transgender athletes. It would allow schools to set their own rules but require them to develop eligibility criteria.
“For older students … the department expects that sex-related criteria that limit participation of some transgender students may be permitted, in some cases, when they enable the school to achieve an important educational objective, such as fairness in competition, and meet the proposed regulation’s other requirements,” the department’s announcement says.
Gov. Mike Parson joined 24 other Republican governors in a letter to the Secretary of Education opposing the proposed regulation.
“The proposed rule could prevent states from enforcing our duly-enacted statutes protecting fairness in women’s and girls’ sports. If not withdrawn, we are gravely concerned about the impact that the Department’s wholesale reinvention of Title IX’s terms would have on states’ ability to enforce their laws and policies as written,” the governors wrote.