In an unannounced move, the Alaska board of education unanimously passed a resolution Thursday afternoon that urges the state education department to limit the participation of transgender girls in girls school sports.
The resolution, which is nonbinding, encourages the Alaska Department of Education and Early Development to adopt a policy that would ban transgender girls from competing alongside girls who are cisgender — meaning their gender identity matches their sex assigned at birth — in school sports. The resolution asks the education department to create two sports divisions: one exclusively for students whose sex assigned at birth is female, and another that would be open to all students of all genders.
The resolution was added unexpectedly to the agenda — on the tail end of the Alaska board of education’s three-day meeting in Juneau, which concluded Thursday.
Billy Strickland, executive director of the Alaska School Activities Association, said the resolution closely mirrors a policy he discussed with members of Republican Gov. Mike Dunleavy’s administration last month. Strickland said members of the governor’s administration approached him to discuss banning transgender athletes from competing alongside cisgender athletes altogether, with the idea of creating three divisions: one for girls, one for boys and one coed division that could accommodate transgender athletes.
Strickland said there aren’t enough transgender athletes to populate a third division. He said that in his nine years directing the organization that oversees high school sports in Alaska, he has heard of only one transgender athlete, but he also said that the association does not track the number of transgender athletes in the state.
Dunleavy spokesperson Grant Robinson said in an email that “it’s time to seriously consider co-ed interscholastic sports, so that all students can compete at their highest level.”
Spokespeople for the governor’s office declined to respond to a list of emailed questions, including whether Dunleavy instructed the state education department to adopt the policy outlined in the board’s resolution.
“The Governor believes that a student who wants play school sports should be able to do so if they are eligible. At the same time, girls playing in single-sex leagues should be playing against other girls. It is age and sex, not gender-identity, that divide athletics into competitive categories. If a person who was born a male but feels out of place playing a sport in a league with boys only due to their gender identity, the solution isn’t to allow them to compete against girls, but to increase co-ed opportunities,” Robinson said by email.
Strickland said he told the Dunleavy administration it would be possible to create a division only for cisgender girls, and an “open” division that could accommodate all other students, including transgender students. Girls already regularly play alongside boys in Alaska on some football and hockey teams, when equivalent teams for girls don’t exist.
Under existing regulations, it is up to individual school boards and districts to adopt and implement policies pertaining to transgender athletes’ participation in school sports. Most districts don’t have a policy at all, and only the Mat-Su school board has adopted rules limiting the participation of transgender athletes in teams that align with their gender identity, Strickland said.
The policy Strickland discussed in early February with members of the governor’s administration — whom Strickland declined to name — would require transgender girls to play in the open division alongside boys, but as Strickland understood it, transgender boys whose sex assigned at birth is female could choose between the two divisions.
That policy closely mirrored the one proposed in the nonbinding resolution that passed Thursday at 4 p.m., shortly before the board adjourned.
It took another 24 hours before the resolution was distributed to lawmakers. Department spokesperson Laurel Shoop said Friday morning that she could not provide a copy of the resolution because it had yet to be signed by board chair James Fields. Several hours later, Fields said he signed the resolution but Shoop said that she could not provide a copy because it was still under review by the Department of Law and Dunleavy’s office. Asked why they had to review the resolution before it was released to the public, Deputy Commissioner Lacey Sanders said it was “a formality.”
‘Safe and competitive and fair’
In the resolution, the board urged the education department to adopt regulations creating two sports divisions to protect “the integrity of high school girls’ sports.”
“The Alaska State Board of Education and Early Development supports the passage of regulations proposed by the Alaska Department of Education and Early Development and reviewed by the people of Alaska to prioritize competitive fairness and safety on the playing field while allowing all students to participate in activities,” the resolution states.
The eight-member board passed the resolution unanimously. The board’s student adviser, Maggie Cothron, abstained.
The measure was amended twice before it was adopted, according to Fields. One amendment removed an explicit statement in the resolution that students’ “medical privacy” should be preserved. Fields said that was removed because existing department regulations already protect students’ privacy.
Another amendment made the policy applicable both to high school and middle school sports, Fields said, reasoning that children begin going through puberty — with corresponding differences between the physical abilities of boys and girls — in middle school. Middle school sports are not governed by the Alaska School Activities Association.
“We’re making a statement of keeping girls’ sports safe and competitive and fair, that’s all,” Fields said in a brief interview after the vote Thursday.
The resolution was brought by board member Lorri Van Diest, who referred all questions to Fields.
Fields said Friday that it would be up to the Alaska School Activities Association, the department of education or the Legislature to take up the recommendations based on the resolution, and that he had no preference as to which body would take action to create binding requirements for schools.
‘Keeping it quiet’
Sen. Löki Tobin, D-Anchorage, who chairs the Senate Education Committee, said that the resolution had caught her “off guard,” and she had not learned about it until after it had passed. Tobin said she was concerned that the board had violated its requirement to allow the public to weigh in on resolutions before they are adopted.
Meanwhile, Sen. Shelley Hughes, R-Palmer, who is one of three conservative Senate members not included in the bipartisan Senate majority caucus, said Friday that she had been aware of the board’s resolution “for some time” and had intentionally been “keeping it quiet” about her ongoing effort to limit the participation of transgender girls in girls school sports because she “knew that it would create a stir.”
Tobin said she was “very concerned” about the resolution possibly violating the right to privacy enshrined in the Alaska Constitution.
“What I’ve been able to see, this resolution could possibly violate those provisions,” said Tobin. “When I think of the handful of young people we’re talking about, I get very worried and scared about their safety. Even the optics of it creates a situation that may put some people’s lives in jeopardy.”
Tobin said that her reading of the resolution indicates the regulations have already been proposed by the education department. A spokesperson for the department did not respond to questions on whether the regulations have already been drafted.
“I am concerned primarily because I am the chair of the state policy committee for education in the Senate,” said Tobin. “I am concerned that the process just was not followed, and that we weren’t able to provide our public comment on this issue.”
Fields said the board has never accepted public comment on resolutions. Resolutions by the board are rare. According to Sanders with the state education department, only three have been adopted since 2017, including the one that passed Thursday. Previous resolutions have pertained to policies governing transfer credits and career and technical education instruction.
“It’d not like we do a lot of resolutions, but the ones we have done, public comment never has weighed in,” said Fields.
Tobin said that the Legislature can “nullify” regulations proposed by the education department because it is up to the Legislature to set state policies governing education, and up to the department to implement them.
“We provide the authority to our department to do that in regulation, but that does not mean they have carte blanche to enact a regulation package that the state Legislature does not believe is in the intent and the directive of their power,” Tobin said.
‘The cutting edge’
The resolution from the Alaska education board — which is composed of individuals appointed or reappointed by Dunleavy — comes on the heels of a measure introduced by the governor that would impact the rights of transgender students in Alaska. Earlier this month, he proposed a bill that would require gender nonconforming students to use bathrooms and locker rooms according to their sex assigned at birth. That bill, which has not yet been voted on by members of the Legislature, would also require parental approval for students seeking to change the name or pronouns they use in schools.
Questions about the participation of transgender athletes in sports have come up regularly in state legislatures, including Alaska’s, but Strickland said he is not familiar with other states that have resolved the issue by creating just two sports divisions.
“We might become the cutting edge of how this is being handled,” he said.
A bill that would limit the participation of transgender kids in school sports failed to pass the Senate last year after it was proposed by Hughes. Rep. Tom McKay, R-Anchorage, proposed a similar bill earlier this year that would allow transgender athletes to participate in a separate coeducational division, with other divisions reserved for boys and girls according to their sex assigned at birth. That bill has yet to be scheduled for a hearing.
Hughes said she had considered reintroducing her legislation in the Senate this year, but decided instead to work with the state education board because she did not believe her bill would pass the Senate this year. The bipartisan Senate majority has said it is committed to staying away from controversial issues, including bills pertaining to the rights of LGBTQ people.
Hughes said she introduced the bill to defend the “original intent” of Title IX — the landmark federal civil rights law that prohibited sex discrimination in school programs and sports — which she said was based on “biological sex at birth.”
The Anchorage School District implemented guidelines in 2015 governing transgender athletes that allow students to participate “in a manner consistent with their gender identity.”
Hughes said she also spoke about the issue with former Anchorage School District superintendent Deena Bishop, who now works as a special adviser on education issues for the governor, and said Bishop “was really supportive.”
Samuels reported from Anchorage and Maguire reported from Juneau.