22222222Tracking student-athletes menstrual cycles & the right to privacy

Earlier this year, news regarding menstrual cycles and athletics went viral when the Florida High School Athletic Association published a form to its prospective female athletes, complete with the following questions:

1. When was your first menstrual period?
2. When was your most recent menstrual period?
3. How much time do you usually have from the start of one period to the start of another?
4. How many periods have you had in the last year?
5. What was the longest time between periods in the last year?

Students’ answers to the questions, along with the rest of their medical history, would have been uploaded to an electronic database called Aktivate, and school personnel would have had access to this information. In February, the Florida High School Athletic Association Board of Directors rejected the proposal to require girls to answer these questions in order to play on school sports teams, and for now, answering such questions remains optional.

Regardless, the question of whether or not compelling students to answer such questions could violate federal law was brought into play. Researchers with backgrounds in Title IX, sports and health care equity, and constitutional law published an analysis in PBS NewsHour, identifying three ways in which schools and states tracking female athletes’ menstrual history may conflict with federal laws. 

First, it may violate federal anti-discrimination law, as Title IX prohibits federally funded schools from discriminating against students based on sex, sexual orientation, or gender identity with the goal of the policy being to end sex discrimination, sex-based harassment, and sexual violence in education. Because only girls & individuals who menstruate are at risk of being denied the opportunity to play sports if they choose not to provide schools with details about their menstrual cycles, the requirement to answer such questions may constitute a form of sex discrimination. 

Second, tracking the menstrual history of female athletes may be outright unconstitutional, as requiring only female students to disclose private medical information may violate the Equal Protection Clause of the 14th Amendment of the United States Constitution, which further outlaws sex-based discrimination. Additionally, explicit rights to privacy exist both within state constitutions and in precedent implicit in the U.S. Constitution. 

Finally, the requirement could be used against transgender students. In June of 2021, Governor Ron DeSantis signed a bill prohibiting trans girls from playing on girls athletic teams, and then in March of 2022. Governor DeSantis signed the Parental Rights in Education bill, better known as the “Don’t Say Gay” bill, prohibiting classroom instruction on sexual orientation and gender identity in K-3 public school classrooms. These passages of recent anti-LGBTQIA+ policies in Florida have made the Florida High School Athletic Association’s attempts to track and electronically store menstrual data that much more worrisome to those advocating for trans rights. The tracking of menstrual cycles could reveal trans youth if they are required to disclose the presence or absence of a cycle. Further, if a school is responsible for outing trans kids, they violate both constitutional rights and Title IX policy, and risk endangering the lives and welfare of such students.

Ultimately, after a vast array of public, scholar, and political opposition to the proposed requirement, the Florida High School Athletic Association’s board of directors has voted 14-2 to remove the questions about high school athletes’ menstrual history from a required health form for participation in high school athletics. Florida, however, isn’t the only state to ask potential student-athletes about their menstrual health and cycles. In fact, a minority of states (only 10) explicitly instruct students to keep menstrual information and other health data private. 

Overall, it can be positive that more individuals are talking openly about periods and menstruating, but it’s one thing to educate students about menstrual health, and entirely another to assess, analyze, and store someone’s personal menstrual health and history outside of a health care setting. Risks can arise when individuals lose control over such personal information, and it’s vital to protect the rights of one’s privacy in regards to matters of health.