It's a matter of common sense that putting boys in a girls' locker room would create confusion, anxiety and discomfort. It's a matter of common sense that boys, with their greater muscle mass, should not be allowed to compete on girls' athletic teams. Those norms are self-evident to an overwhelming majority of the public.
On Thursday, the Minnesota State High School League (MSHSL) will vote on abolishing those norms of common sense. A pending policy would end the traditional rule of dividing athletes by biological gender. Instead, it would grant boys with a "deeply felt internal sense" of being female the right to compete on girls' teams.
The policy is meant to look as if it gives schools a measure of discretion. But it contains a clause that any capable lawyer can drive a truck through. It virtually guarantees that any school denying a boy the right to compete as a girl will face a lawsuit.
The policy calls for schools to review particular matters (for example, statements from parents and teachers). Then it states: "When there is confirmation of a student's consistent and uniform gender-related identity or any other evidence that the gender-related identity is sincerely held as part of the person's core identity, the student will be eligible" to play on his team of choice (emphasis added).
Any lawyer can tell you that such language generates lawsuits. The disjunctive "or," the boundless "any other evidence" and the mandatory "will be eligible" are potent grounds for a claim. The clause would grant boys a right to play as girls virtually on demand.
Imagine the following scenario. An adolescent counterpart of Clay Matthews (the very long-haired, very burly linebacker for the Green Bay Packers) comes before your school board. He declares: "I always have had a feminine self-image. I never told anyone, because of society's expectations, but I'm revealing it now. My long hair is evidence of my sincerity and my feminine self-expression."
The High School League's pending policy would compel the school to let this boy play power forward on the girls' basketball team, regardless of safety considerations. (Imagine a Clay Matthews look-alike bowling girls over under the basket.) If the school resisted, it would promptly be faced with a lawsuit under the "will be eligible" clause.
The language isn't inadvertent. The pending policy is a redraft. The public challenged an original rendition early this fall, when some 10,000 e-mails were sent to the league.
The redraft supposedly was to be prepared by a "task force" representing multiple viewpoints on the issue. But opponents of the original draft (the Minnesota Catholic Conference, the Minnesota Family Council and other groups) have been shut out of the process. The redraft, with its insidious language, was prepared by transgender activists and the bureaucracy of the league.
The transgender issue should be resolved by the Legislature, not by the league. The common sense of the public can have an adequate hearing there, as a counterweight to activist ideology. The implications of policy language can be critically assessed, and insidious clauses can be cut out.
High schoolers with gender-identity dysphoria should be treated with sensitivity. But no one should have carte blanche to disrupt athletic programs and potentially to endanger other students. Nor should activist lawyers be armed with a gender-change-on-demand manifesto with which to intimidate school districts.
The transgender policy defies common sense, and the public shouldn't stand for it. The norm of dividing athletes by biological gender should be upheld. If the league adopts the pending policy, the public should insist that the Legislature reinstate common-sense norms.
John D. Hagen Jr. is a Minneapolis attorney.