In anticipation of a vote by the Minnesota State High School League on adoption of a new transgender policy for high school athletics, Republican Leader David Hann wrote the following letter to the MSHSL board:
December 3, 2014
Minnesota State High School League
2100 Freeway Boulevard
Brooklyn Center, MN 55430-1735
Dear Director Stead and Members of the Board,
I am writing to request that you postpone the adoption of the proposed “transgender policy” now under consideration. I believe it is fair to describe the proposal as controversial, and regardless of the merits of the proposed policy, it is in conflict with current statutes and administrative rule. It is not proper for the MSHSL, or any state agency, to adopt policies that contravene law that has been enacted by elected officials in the proper exercise of their Constitutional authority.
In particular, the following sections of Minnesota law and rule pertain most directly to this subject:
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MS 121A.04, which seeks to provide an equal opportunity “…for members of both sexes…males and females…” to participate in athletic programs. The statute speaks of and conditionally permits teams to be “separated or substantially separated according to sex” and specifically states “nothing in this section shall be construed to require the two teams to conduct combined practice sessions or any other combined activities.”
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MS 363A.23, which cross-references 121A.04 and states “it is not an unfair discriminatory practice for an educational institution…to operate or sponsor separate athletic teams and activities for members of each sex or to restrict membership on an athletic team to participants of one sex, if this separation or restriction meets the requirements of 121A.04…Department of Human Rights shall investigate all charges alleging sex discrimination in athletic programs…pursuant to 121A.04.”
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MR 3535.3000-9910, which implements protections against unlawful sex discrimination in school athletic programs. These rules define “participation rate for a particular sex” and provide the conditions under which a team may be properly restricted based on sex. Specifically, the rule states, “When an educational institution has established a team exclusively for members of the sex whose overall athletic opportunities have previously been limited, members of the other sex may not try out for or participate on that team.”
In each of these cases, the only word used to categorize biological males and females is “sex.” At no time is sex presented as an individual concept or choice, and at no time in either the above examples (or even the entire Minnesota Statutes) is the word “transgender” used. There is no legislative history indicating that it was the intent of the House or Senate (or Governor) to apply anything other than a biological definition of sex when determining the proper formation of athletic teams and the prevention of illegal discrimination.
If you proceed with the adoption of your proposed policy, there will almost certainly be lawsuits brought by one side or the other to adjudicate the conflict between state statute and the actions taken by school districts following your direction. This is not necessary when the remedy is at hand: let the legislature consider the merits and take action.
The MSHSL has not been authorized by the Legislature to develop its proposed policy. There is no precedent in either statute or rule that would plausibly lead one to conclude that this development was desired or anticipated by either the Executive or Legislative branches. Debate, public participation, and accountability on substantive policy matters are vital elements of a democracy and occur to the fullest at the Capitol, not in board rooms of state associations and agencies. If the MSHSL believes it has an issue on which a public policy decision must be made, it is obligated to bring its concerns and recommendation to the Legislature rather than to overstep its proper role.
Thank you for your time and consideration of my request.
Sincerely,
