Conflict Counseling Services Wanted in Disagreements About Transgender Athletes | Guam News

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Whether a transgender rugby girl will be allowed to continue playing is new territory for the Guam Department of Education.

“This is an emerging issue, it’s a complex issue. Many sports associations and states and school districts are currently dealing with this and it is not yet decided one way or the other. But again, the problem is here on Guam and we have to face it,” GDOE Superintendent Jon Fernandez said.

For an hour and a half, GDOE and the Guam Board of Education debated the contentious issue, and although the board did not comment on the matter, it indicated that legal counsel was being sought.

The GEB Committee on Safe and Healthy Schools addressed the concerns during a working session on Wednesday after the matter was made public after the superintendent made his decision.

GEB committee chair Maria Gutierrez made it clear from the start that no deliberations would be held, while warning education officials about her upcoming contribution.

“Having this working session as board members, I warn you that we will not deliberate or give your opinion as to which side you take. This is a working session that I want to clarify,” Gutierrez said. “We are not here to discuss your opinion.”

Because the issue is sensitive, Mark Mendiola, Chairman of the GEB, reached out to the Attorney General’s Office for additional services.

“I have asked the AG to add a conflicts adviser in case we have a disagreement with the superintendent on a position or items we are going to discuss. We were told this by a previous board that the AG would represent the board if there was an issue arising out of a conflict. I wrote him a letter detailing that request,” Mendiola said.

A response from the AG is still pending. Although Fernandez noted that his decision was based on advice from legal counsel, he noted that the additional filing was a proactive measure.

“Because I am relying on the advice and guidance of legal counsel in making my decision on this matter and the board is not satisfied with the guidance and action taken and is asking for confirmation of that legal advice, of course the recommendation is to go to counsel generally to Review,” Fernandez said.

Independent Verification

The review would be independent and separate from GDOE’s legal advice.

“I’m trying to make sure we have top cover for the board in the sense that we have a disagreement with certain positions that have been publicly declared to be at odds with the superintendent’s position. I want to make sure everyone on this board gets their legal advice…it’s as simple as that,” Mendiola said.

According to Fernandez, the addition is also about “meeting the legal pattern”.

“You probably want that legal confirmation that your action is correct,” he said. “I think what this does is to be proactive so that in case of disagreements, especially on legal grounds, there is a mechanism to resolve those legal differences and wait for the AG to make that decision.”

Under local law, Gutierrez said the board “has no authority to set interscholastic policy,” noting that the superintendent made an “operational” decision.

At the time the Board instructed the Superintendent to create the Articles of Association and Bylaws which were adopted and approved on November 13, 2019.

“Each board member who sat was given a copy of the articles of association and bylaws to check if they have any contributions. Therefore, if the board wants to set a policy, that’s not the discussion today,” Gutierrez said. “The discussion is that we want to hear from Fernandez. Based on that, he made his statement. We do not question his authority because this is a working session.”

Fernandez used his time before the committee to clarify the matter for the board to allow the board to decide how to proceed with the matter.

Prior to the start of this year’s season, there were no policies or rules governing the participation of transgender people in interscholastic rugby.

“In our rugby statutes we require rugby union to submit its rules for the season before the first game begins. The first games took place on April 9 this year,” said Fernandez. “We later received a memo from Guam Rugby referencing World Rugby guidelines, but that came after the season had started, which is a separate challenge.”

With no guidelines, Fernandez took action based on his presiding authority over the Interscholastic Sports Association to answer the question.

“Although this question concerns general guidelines, there were no guidelines at the time. The question was based on what we had. Has the statute prohibited or permitted the participation of transgender women in rugby, specifically the participation of transgender women in girls’ rugby? And that was the question I had to decide to take action in the middle of an ongoing season,” Fernandez said.

Title IX

Fernandez emphasized that the public school system must seek to develop an approach that is fair, equitable and appropriate to the situation.

“We still have a lot of work to do, but in this case I was dealing with an ongoing season.” Fernandez said, “In making my decision, I noted that as a government-funded entity, we have a responsibility to protect against discrimination in accordance with.” To provide Title IX, a federal civil rights statute that applies to activities sponsored by educational institutions like GDOE,” Fernandez said.

Title IX includes existing regulations and subsequent guidance due to the change in Presidential Administrations.

“In early 2021, President Biden issued two executive orders that extended Title IX protections to gender identity. Of course, the authorities concerned are developing rules, which are expected shortly,” said Fernandez.

Fernandez’s determination to allow the transgender player to participate was based on this guidance.

“We noted and advised Guam Rugby that they had not submitted any rules regarding transgender participation, nor were any included in the ISA guidelines. Given our interpretation of Title IX, we saw no reason to ban or disqualify a transgender woman from participating in girls’ rugby,” Fernandez said.

However, his determination in this particular case is not meant to be a guideline governing all future sports or incidents that progress.

“It’s really being decided on a case-by-case basis in relation to this particular season and situation. I know there are a few arguments out there that deserve attention,” Fernandez said.

concerns addressed

One issue is the competitive advantage for Guam High School, the team that the transgender player plays on.

“Based on our rating, I believe Guam High has lost two of its three competitions. There was no clear basis or argument for competitive advantage from those weekend games,” Fernandez said.

Another concern was player safety.

“Tiyan High School has expressed concern over three athletes injured by the transgender woman during the first weekend of competition. When we looked at these things and spoke to Paul Claros, the high school principal for Guam Rugby, there was no indication that these injuries were beyond what is typically seen at a rugby match,” Fernandez said.

He found that subsequent games not involving the transgender player also resulted in injuries.

“I know of students who have broken ankles and broken collarbones in a rugby match. This was certainly not the case for the three injured athletes. Based on the evidence at hand, we have not been able to determine if there are immediate safety concerns,” Fernandez said.

Fernandez said he met with Guam Rugby officials who decided to follow World Rugby regulations which prohibit transgender people from participating.

“Our response to that was that as our supplier they have an obligation to adhere to our policy and follow that policy in the operation of our rugby league,” Fernandez said. “We’re looking at this weekend’s games; We have not yet received a definitive response, but we understand that the athlete in question did not participate in their game.”

Fernandez said they are working to determine if the athlete’s non-participation was the result of action by Guam Rugby Union.

“Following review of this matter, we will determine whether further action is required by the department in relation to the girls’ rugby league. When I acted on this matter, I consulted with legal counsel to resolve the legal issues involved,” Fernandez said.

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