The Biden administration would prohibit blanket bans that “categorically” bar transgender students from participating in the sport consistent with their gender identity under a proposed amendment to federal civil rights law.
The amendment to the regulations for Title IX of the Education Amendments of 1972 would require schools, colleges and universities to set sport-specific criteria that take into account “important educational objectives” as well as the level of competition and education level of those involved if the institution is applying sex-related rules that would limit or deny a transgender student’s ability to participate on a team consistent with their gender identity.
“Some objectives, such as the disapproval of transgender students or desire to harm a particular student, would not qualify as important educational objectives,” a senior department official whom the department asked not to be identified said in a call with reporters.
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The proposed rule comes as transgender rights have become a lightning rod in American politics; a wave of states has banned transgender athletes from participating in girls’ and women’s sports at the K-12 and postsecondary level. The Associated Press reports that 20 states have adopted restrictions on transgender athletes. Lawmakers also have passed bills that would govern which bathrooms transgender people can use and their access to gender-affirming care. The Supreme Court ruled Thursday to leave in place an injunction against West Virginia that blocks the state from enforcing its ban on transgender student athletes at the college level as well as in middle and high schools.
The Biden administration’s rule means that colleges and universities will risk their federal funding if they follow state laws that ban participation in athletics by transgender students. Lawsuits challenging the rule are likely.
“Federal civil rights law is the law of the land, and we would be eager to ensure its full satisfaction in every school community around the country,” the senior department official said, adding that she’s confident in the department’s legal position.
The institutions’ adopted criteria also need to minimize harm to transgender students who are not able to participate. Institutions could lose their access to federal funds if they don’t comply with the proposed regulation, which is not yet final. The department will take public comments on the amendment before finalizing the rule.
The Biden administration’s latest proposal builds off its proposed Title IX regulations that expanded protections for transgender students. The administration said last summer it would issue a separate rule governing transgender students’ participation in school sports.
“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination,” U.S. Secretary of Education Miguel Cardona said in a statement. “Being on a sports team is an important part of the school experience for students of all ages.”
Conservatives, Republican lawmakers and Republican attorneys general have criticized the provisions for transgender students in public comments, arguing the regulations could deny female athletes an equal athletic opportunity. House Republicans, led by North Carolina representative Virginia Foxx, who chairs the House Committee on Education and the Workforce, have introduced a bill that would make allowing a transgender woman to participate in an athletic program for women or girls a violation of Title IX.
LGBTQ+ advocacy groups praised the administration’s announcement Thursday.
“Transgender youth are an integral part of every school across this country,” said Imani Rupert-Gordon, executive director of the National Center for Lesbian Rights. “We applaud the Department of Education for recognizing that the law requires that transgender students must be treated fairly and equally and as respected members of their school communities.”
The Alliance Defending Freedom, a conservative legal organization, said the proposed rules “are a slap in the face to female athletes who deserve equal opportunity to compete in their sports.”
“The Department of Education’s rewriting of Title IX degrades women and tells them that their athletic goals and placements do not matter,” ADF senior counsel Christiana Kiefer said in a statement. “When society and the law try to ignore reality, people get hurt. In sports, it’s women and girls who pay the price. Thankfully, a growing number of states are stepping up to protect women’s athletics.”
The proposed regulation would allow schools and colleges to limit the participation of transgender students if they set the required criteria.
“This requirement is consistent with our regulations’ long-standing recognition that schools may deny students opportunities to participate on particular male or female teams based on sex in certain circumstances,” the official said.
Nothing in the proposed rule changes Title IX’s requirements that women and girls be afforded equal athletic opportunity, according to a department fact sheet.
The department said it expected elementary school students to generally be able to participate in the school sports team consistent with their gender identity because it would be difficult for a school to meet the requirements in the proposed amendment.
“Participating in school athletics is an important component of education and provides valuable physical, social, academic, and mental health benefits to students,” the fact sheet states. “Younger students, in particular, benefit from the chance to join a team and learn about teamwork, leadership, and physical fitness.”
However, the department expects that sex-related criteria could limit the participate of some transgender students at the high school and college level, “when [the criteria] enable the school to achieve an important educational objective, such as fairness in competition,” per the fact sheet.
The senior department official said other educational objectives could include protecting safety in the sport. The official stressed that the school or institution would have to look at the needs of a sport and the needs for the grade or education level of students.
“I would caution any school about taking something off the shelf without offering that particularized consideration,” the official said.
Fatima Goss Graves, president and CEO of the National Women’s Law Center, said in a statement that the organization was grateful for the department’s actions to protect transgender students.
“NWLC has been fighting for over 50 years to see Title IX fulfill its promise to ensure all students are given equal opportunities and protected from sex discrimination,” Graves said in a statement. “Extremist politicians continue to manufacture panic over trans girls’ inclusion in school and school athletics instead of addressing the real changes and protections girls need in sports, including equal time and resources in school sports or addressing the rampant sexual abuse of student athletes. LGBTQI students deserve to learn and thrive—not be targets for state-sponsored bullying and violence.”