Whether a transgender rugby player should be allowed to continue playing is uncharted territory for Guam’s Department of Education.
“It’s an emerging problem, it’s a complex problem. Many athletic associations, states, and school districts are dealing with it right now and it’s not decided one way or another. But again, the problem is here in Guam and we have to deal with it,” said GDOE Superintendent Jon Fernandez.
For an hour and a half, the GDOE and the Guam Board of Education discussed the contentious issue and while the board did not take a position on the matter, it said legal representation had been sought.
The GEB’s Safe and Healthy Schools Committee addressed the concerns Wednesday during a working session following publicity on the issue after the superintendent issued his decision.
GEB committee chair Maria Gutierrez made it clear from the start that no deliberations would be made, while cautioning education officials against their impending contribution.
“The conduct of this working session as members of the council, I warn you that we are not going to deliberate or give your opinion on which side you take. This is a working session that I want to clarify, “said Gutierrez: “We are not here to discuss your opinion.”
Because the matter is sensitive, GEB Chairman Mark Mendiola contacted the Attorney General’s office for additional services.
“I have asked the Attorney General to add a conflict counsel, in case we have a disagreement with the Superintendent on a position or items that we will be discussing. It was mentioned to us at a previous council that if there was an issue arising from a conflict, the GA would represent the council. I wrote him a letter exercising that request,” Mendiola said.
The GA response form has not yet been received. Although Fernandez noted that his decision was based on the advice of legal counsel, he indicated that the additional participation was a proactive measure.
“Because I rely on the advice and guidance of legal counsel in my decision on this matter, and if counsel is dissatisfied with the advice and action taken and seeks confirmation of this legal opinion, the recommendation is of course to go to the attorney general for review,” Fernandez said.
The review would be independent and separate from GDOE’s legal counsel.
“I try to make sure that we have the top cover for the board in the sense that if we have a disagreement with certain positions that have been stated in public as contrary to the superintendent’s position. I want to make sure that all members of this board benefit from his legal advice…it’s as simple as that,” Mendiola said.
The addition is also about ‘compliance with legal requirements’, according to Fernandez.
“You’re probably going to want to have this legal assertion that your action is appropriate,” he said. “I think what it does is to be proactive so that in the event of a disagreement, particularly on legal bases, there is a mechanism to resolve this legal difference, using the AG to take this decision.”
Under local law, according to Gutierrez, the board “does not have the authority to establish interscholastic policy,” noting that the superintendent issued an “operative” decision.
At the time, the board directed the superintendent to establish the bylaws and constitution which were adopted and approved on November 13, 2019.
“Each board member who sat was given a copy of the bylaws and constitution to review if they have any comments. Therefore, if the board wants to establish policy, that’s not the discussion today,” Gutierrez said. “The discussion is that we want to hear from Fernandez. He released his statement on that basis. We are not questioning his authority because this is a working session.
Fernandez used his time before the committee to clarify the issue for the board, to allow the board to determine how they would like to proceed on the matter.
Prior to the start of this year’s season, there were no policies or rules governing transgender participation in interscholastic rugby.
“In our rugby statutes we require rugby union to submit their rules for the season before the start of the first match. The first matches were played on April 9 this year,” Fernandez said. We subsequently received a note from Guam Rugby referring to World Rugby guidelines, but this came after the start of the season, which presents a distinct challenge.”
With no guidelines in place, Fernandez took action based on his presiding authority over the Interscholastic Athletic Association to address the issue.
“Although this issue involves policies in general, there were no policies in place at the time. The question was based on what we had. Do the statutes prohibit or allow transgender participation in rugby, in particular the participation of transgender women in women’s rugby? And that was the question I had to decide in order to act in the middle of an ongoing season,” Fernandez said.
Fernandez stressed that the public school system must seek to develop a fair, equitable and appropriate approach to the situation.
“There is work to be done, but in this case I was dealing with an ongoing season.” Fernandez said, “In making my decision, I noted that as a federally funded entity, we have a responsibility to provide discrimination protections under Title IX, which is a federal law on civil rights that applies to activities sponsored by educational institutions such as GDOE,” Fernandez said.
Title IX encompasses existing regulations and subsequent directions due to the change of presidential administration.
“In early 2021, President Biden issued two executive orders expanding Title IX protections to include gender identity. Of course, the relevant agencies are developing rules which are expected shortly,” Fernandez said.
Fernandez’s determination to allow the transgender player to participate was based on this advice.
“We have noted and communicated to Guam Rugby that they have not submitted any rules relating to transgender participation nor are there any in the ISA guidelines. In light of our interpretation of Title IX, we saw no reason to ban and exclude a transgender woman from participating in women’s rugby,” Fernandez said.
However, its determination in this specific case is not to be a policy governing all future sports or incidents in the future.
“It’s really done on a case-by-case basis, in terms of this particular season and this particular situation. I know there are a few arguments worth considering,” Fernandez said.
One of the concerns being the competitive advantage of Guam High School, the team the transgender player is on.
“Based on our review, I think Guam High lost two of their three competitions. There was no clear basis or argument for a competitive advantage coming from those games over the weekend,” Fernandez said.
Another concern raised was player safety.
“Tiyan High School raised concerns about three athletes injured by the transgender woman during the first weekend of competition. In reviewing these matters and speaking to Guam Rugby High School Administrator Paul Claros, nothing did not indicate that these injuries were beyond what would normally occur in a rugby match,” Fernandez said.
He noted that subsequent matches that did not involve the transgender player also resulted in injuries.
“I know students who have had broken ankles, broken collarbones as a result of rugby competition. This was certainly not the case for the three injured athletes. Based on the available evidence, we have not been able to determine if there is an immediate safety concern,” Fernandez said.
Fernandez said he met with Guam Rugby officials who determined they would follow World Rugby regulations that prohibit transgender participation.
“Our response was that they are required, as a supplier, to adhere to our directive and to follow this directive in the operation of our rugby league,” Fernandez said. “We are looking at this weekend’s games; we have not yet received a definitive answer but we understand that the athlete in question did not participate in his match.
Fernandez said they were working to determine if the athlete’s non-participation was the result of action by the Guam Rugby Union.
“After reviewing this matter, we will determine if further action by the department is required in relation to women’s rugby league. In taking action in this matter, I have consulted legal counsel to resolve the legal issues involved,” Fernandez said.