The Biden administration has proposed new regulations that would prevent schools from completely banning transgender athletes from participating in sports. However, schools would still have the ability to bar some trans players from competitive high school and college sports. This proposal comes after a recent Supreme Court ruling allowed a 12-year-old trans girl to continue competing in track and cross-country, challenging West Virginia’s ban. The Education Department aims to provide clarity for schools and families and emphasizes that blanket bans on transgender student-athletes would put institutions and educational programs at risk of losing federal funding under Title IX.
The proposed change to Title IX regulations is intended to develop team eligibility criteria that ensure fairness in competition and prevent sports-related injuries. The criteria for determining the eligibility of a trans athlete would vary depending on the sport, level of competition, and education level. However, transgender advocates argue that the proposed guidance does not go far enough in protecting transgender students who want to participate in school sports, especially as 20 states have imposed bans on trans athletes. They believe that the regulations provide a playbook for enacting bans while still complying with the law.
The guidance acknowledges that it would be difficult for schools to justify excluding elementary school students based on their gender identity. However, it does not explicitly state whether a school would be considered in compliance if it discriminated against transgender students at the high school and college level. This ambiguity is a cause for concern among advocates who fear that the proposed rules leave room for discrimination. They worry that criteria such as birth certificates, driver’s licenses, physical examinations, and medical testing related to a student’s sex could lead to invasive invasions of privacy.
Trans advocates are also concerned about how the proposed rules will be enforced, particularly in states that have already passed total bans on trans athletes. The Education Department has stated that federal civil rights law is the law of the land, and schools that refuse to comply could face fund withholding to ensure that no federal dollars are used to discriminate against students. The department also referred to the NCAA’s sport-by-sport policy as an example of how to include transgender athletes, but it does not take a position on the association’s policy.
The release of the proposed rule change has drawn criticism from Republican members of Congress. They argue that accepting trans athletes in school sports threatens women’s sports and broader Title IX protections. Some Republicans have vowed to fight against these changes, viewing them as “woke nonsense” that undermines women’s opportunities to compete fairly. The proposed regulation will be open for public comment for 30 days, and the Education Department plans to finalize the rule by May.
