When schools track female athletes’ menstrual history, it likely violates federal laws

Only four states — Mississippi, New Hampshire, New York and Oklahoma — and Washington, D.C., do not currently ask any questions about menstrual history on the sports pre-participation medical forms provided by their state athletic association.

SHARE When schools track female athletes’ menstrual history, it likely violates federal laws
Forcing only females to disclose private medical information about their menstrual cycle may violate the equal protection clause of the 14th Amendment, which prohibits sex-based discrimination.

Requiring female student athletes to submit menstrual cycle data to their schools could be a form of sex discrimination and therefore violate Title IX.

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Concerns are being raised across the U.S. about whether schools have a right to compel female athletes to provide information about their menstrual cycles.

The Florida High School Athletic Association Board of Directors rejected a proposal this month that would have required high school girls to answer four questions about their menstrual cycles in order to play on school sports teams. The questions had previously been optional.

The four questions were: Have you had a menstrual cycle? How old were you when you had your first menstrual period? When was your most recent menstrual period? How many periods have you had in the past 12 months?

The answers, along with the rest of students’ medical history, would have been entered into an online platform and stored on a third-party database called Aktivate. School personnel would have had access to this information.

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While Florida decided to scrap the questions, many states currently ask similar questions of female athletes prior to participation in their sport.

As researchers who are experts in Title IX, sports and health care equity and constitutional law, we have identified three reasons why school and state tracking of female athletes’ menstrual history may conflict with federal laws.

Violation of federal anti-discrimination law

Title IX, a federal policy passed in 1972, prohibits federally funded schools from discriminating against students based on sex, sexual orientation or gender identity. While Title IX applies to all school settings, it is often most associated with athletics.

Requiring female student athletes to submit menstrual cycle data to their schools could be a form of sex discrimination and therefore violate Title IX. It is potentially discriminatory because girls are the only students at risk of being denied the opportunity to play sports if they choose not to provide schools with details about their menstrual cycles.

In a 2020 Harvard Journal of Law and Gender study, three scholars argue that schools should create educational settings free of “unnecessary anxiety about the biological process of menstruation.”

“Because menstruation is a biological process linked to female sex,” they write, “educational deprivations connected with schools’ treatment of menstruation should be understood as a violation of Title IX’s core proposition.”

A threat to constitutional rights

Tracking female athletes’ menstrual history may be downright unconstitutional.

Forcing only females to disclose private medical information may violate the equal protection clause of the 14th Amendment, which prohibits sex-based discrimination.

Also, 11 states have a “right to privacy” written into their state constitutions. For example, the Florida Constitution states that “all natural persons, female and male alike, are equal before the law and have inalienable rights,” including “the right to be let alone and free from governmental intrusion into the person’s private life.”

While other states do not explicitly provide a right to privacy in their constitutions, legal precedent has determined this right is implicit in the U.S. Constitution.

And finally, federal laws that protect medical and educational records do not have standards for maintaining medical records shared with schools and stored on third-party databases. This lack of precedent may result in privacy breaches.

A threat to transgender students

The recent passage of several anti-LGBTQ+ policies in Florida made the Florida High School Athletic Association’s attempts to track and digitally store menstrual data particularly worrisome to trans rights advocates.

As more states try to ban trans youth from receiving gender-affirming medical care, menstrual tracking in athletes could serve as another mechanism to harm and criminalize transgender youth.

Tracking menstrual cycles could “out” trans youth if they are required to disclose information about their menstrual cycle — whether that is the presence or absence of a cycle. If a school is responsible for outing trans kids, they violate both constitutional rights and Title IX policy, and they risk endangering the outed students’ welfare.

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Protecting period privacy

While the proposed Florida mandate was rejected, we have found that most states do in fact collect data on high school athletes’ menstrual cycles.

Based on our collection of sports pre-participation forms, only four states — Mississippi, New Hampshire, New York and Oklahoma — as well as Washington, D.C., do not currently ask any questions about menstrual history on the sport pre-participation medical forms provided by their state athletic association.

Following the vote on the Florida proposal, three U.S. House Democrats introduced legislation called the Privacy in Education Regarding Individuals’ Own Data Act, or PERIOD Act. It would prohibit schools from collecting menstrual information altogether.

If this legislation is adopted, the estimated 3 million American high school girls who play sports in a state that still asks about menstrual history will no longer have to share this information.

This article was originally published on theconversation.com

Lindsey Darvin is assistant professor of sports management at Syracuse University. David Schultz is professor of political science at Hamline University. Tia Spagnuolo is a doctoral student at Binghamton University, State University of New York.

The views and opinions expressed by contributors are their own and do not necessarily reflect those of the Chicago Sun-Times or any of its affiliates.

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