The Biden administration has recently proposed new regulations in a bid to prohibit schools from completely barring transgender athletes from participating in sports. However, these regulations would permit schools to exclude some transgender players in competitive high school and college sports. This controversial proposal has garnered a medley of reactions from both transgender activists and Republican legislators.
This proposal, revealed shortly after the Supreme Court ruled to allow a 12-year-old transgender girl to continue partaking in track and cross-country, comes in amidst the ongoing challenge to West Virginia’s ban in the courts. The ruling acts as a significant precedent for the numerous heated debates that have been surfacing across the country, with various states contemplating blocking trans athletes from participating in school sports. As these bans are progressively met with legal challenges, the Education Department voiced its aim to provide clarity for schools and families on the matter.
The Department underscored that blanket bans on transgender student-athletes could potentially jeopardize institutions and educational programs that receive federal funding under Title IX, a federal law that offers protections against sex discrimination. By proposing these changes to Title IX regulations, the Department seeks to establish team eligibility criteria that serve important educational objectives, such as ensuring fairness in competition and preventing sports-related injuries.
The criteria that would be utilized to determine the eligibility of a trans athlete would vary according to several factors. These include the sport in question, the level of competition, and the education level. The regulations stipulate that these determinants should aim to “minimize harms” to transgender students.
However, the guidance offered has been met with a wave of criticism from transgender advocates. They argue that despite its good intentions, the proposal does not adequately ensure protections for transgender students who wish to participate in school sports. This lack of assurance is particularly alarming, given that 20 states have imposed bans on trans athletes.
Erin Reed is a Washington, DC–based transgender activist and journalist who has been closely monitoring anti-trans legislation. Reed expressed shock at the new regulations. She believes that schools will interpret these regulations in a manner that allows them to impose bans if it serves an ‘educational purpose’ and minimizes the harm to trans students. According to Reed, this essentially provides a roadmap for schools to enact bans while remaining in compliance with the law.
Reed further elaborated on her concerns, stating that the guidance implies that it would be challenging for schools to justify the exclusion of elementary school students. However, the language used in the proposed rule does not explicitly clarify whether a school would be non-compliant if it discriminated against transgender students at the high school and college level.
One aspect Reed finds particularly frustrating is that by leaving these issues unaddressed, Biden is essentially leaving an open door to right-wing political points. “What [Republicans] seize on is the places where he’s conceded ground. This is going to feel like a betrayal,” Reed commented.
The department’s regulations indicate that schools could use documents such as a student’s birth certificate or driver’s license, and could require physical examinations or medical testing related to a student’s sex to “limit or deny a student’s eligibility to participate consistent with their gender identity.”
Reed fears that this type of criteria could pave the way for invasions of privacy. This fear echoes the apprehensions of advocates in Kansas, where Republican lawmakers managed to enforce a ban on trans students in women’s and girl’s sports despite the governor’s veto.
Other transgender advocates share similar concerns about how the proposed rules might be enforced. Melanie Willingham-Jaggers, the executive director of GLSEN, stated that the eligibility criteria “cannot be based on junk science or bigotry and must serve a legitimate purpose.”
Despite the emphasis placed on the necessity for fairness in these regulations, there is a palpable concern about the potential for misuse and misinterpretation, particularly in the current climate of intensified anti-transgender political attacks.
The Education Department, in a recent press briefing, was questioned about how it would handle enforcement of this rule in states that have already passed total bans on trans athletes. A senior department official reassured reporters that “Federal civil rights law is the law of the land,” and in the unlikely scenario that a school committee declined to come into compliance with the law, the department could initiate fund withholding to ensure that no federal dollars are spent to discriminate against students.
The department also hinted towards the NCAA’s sport-by-sport policy as a possible model for including transgender athletes. However, an official clarified that the department does not take a specific stance on the association’s policy.
The Biden administration has staunchly supported the rights of the LGBTQ+ community. During a recent White House press conference, press secretary Karine Jean-Pierre highlighted the dire state of LGBTQ rights in the country. She noted that the current week has been one of the worst of 2023 in terms of anti-LGBTQ bills, adding, “We have their back, this administration has their back.”
As expected, the release of the proposed rule change has been met with heavy criticism from Republican members of Congress. They argue that the Biden administration’s explicit acceptance of trans athletes in school sports could potentially threaten women’s sports and the broader Title IX protections.
The regulation is open for public comment for 30 days, with the department planning to have the rule finalized by May. The next few months are likely to see an intense debate as both supporters and critics of the proposed changes make their voices heard.
