The recent groundbreaking decision by the U.S. Supreme Court (SCOTUS) finding that states can ban biological males from playing on girls’ sports teams has led the Wisconsin Institute for Law and Liberty (WILL) to offer a model policy discussion for school districts to follow in implementing the new law.
Lauren Greuel, Associate Counsel for WILL, leads off her presentation by defining the mission of her organization:
“WILL is a nonprofit law and policy center based in Milwaukee, Wisconsin, and through litigation, education, and participation in public discourse, we work to advance the government’s free speech, transparency, and education reform. We provide timely and comprehensive policy research to advance limited government.”
The SCOTUS decision in West Virginia v B.P.J effectively upheld laws in 27 states, including Kansas, that banned biological males from playing in girls’ sports. The Kansas law was passed over Governor Laura Kelly’s veto in 2023.
Greuel says WILL’s model policy would even apply to those 27 states in determining proof of biological sex for athletes:
“Our model policy gives three options for the school board to decide how they want to handle verifying biological sex. The first is to require the parent or student athlete to affirm the team that they are registering for is the team that matches their biological sex. This would just be theoretically a checkbox or a Yes/No question. Then, if there are any issues later on, we have a dispute resolution process, should a student or parent not be truthful when they are affirming that they are registering for the team that matches their biological sex. But this is the least administrative burdensome method. It wouldn’t require parents to produce a birth certificate every season or at all, hopefully, and it would limit the amount of administrative time, checking for biological sex of every single athlete.
“But if a school wanted to take a more stringent approach, or if they have birth certificates already on file, we have options two or three. Schools could require proof of biological sex at sports registration, which could include producing a birth certificate, or other documentation, that indicates biological sex, or require proof of biological sex during sports registration, if it’s the first season of a student participating for a male or a female team. So, a student has to produce it just once, and then they don’t have to do that again. every single season if they stay on the same designated team. So, if they’re female, and they produce a birth certificate that says they are female, and then the next year, they go out for the girls’ swim team again. They wouldn’t have to produce the birth certificate again.”
Greuel discusses the possibility that a birth certificate has been changed, a practice banned in Kansas since 2023.
“For our model policy, we say that if changes have been made to the sex marker on the student’s birth certificate or other documents, that amended document may not be used to determine eligibility. They will have to produce other documentation for the school. And if changes are not disclosed, and if the student athlete is registered, or has been playing on a team that does not match their original sex listed on a birth certificate, or other document, then that student will be prohibited from participating on any teams in the future.”
Greuel concludes that WILL’s model policy includes a dispute resolution mechanism:
“Once a complaint is made, the athletic director shall review the complaint and make a determination based on the information that they’ve gathered in our model policy that goes through specific criteria that the athletic director must take into consideration, like medical documents, like the birth certificate, like conversations with the student athlete, and parents, and coaches. Also, the athletic director has the ability to make an interim decision. So if they’re not able to get through all of those interviews or all of those documents prior to a decision needing to be made, they can make one before the final determination. And then, finally, after the athletic director comes to determination on eligibility, that determination may be appealed to the school board for a final determination if the parent or student athlete or complainant disagrees with the decision from the athletic director.”
