Schools Couldn’t Ban All Trans Athletes Under New Title IX Proposal

Schools wouldn’t be able to categorically ban transgender students from joining athletic teams consistent with their gender identity under a change the Biden administration is proposing to Title IX, the federal civil rights law.

But schools would still be able to limit transgender athletes’ participation in sports under some circumstances, such as in highly competitive sports at the high school or collegiate levels.

U.S. Department of Education officials announced on Thursday the proposed change to regulations under Title IX, the federal law that prohibits discrimination on the basis of sex. The news is long awaited as more lawmakers across the country seek to limit transgender youths’ ability to play sports, use bathrooms that align with their identity, seek gender-affirming care, and go by their preferred pronouns and names in school.

“The proposed rule would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity just because of who they are,” reads a department fact sheet about the change. “The proposed rule also recognizes that in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation.”

In June, the Education Department announced an initial set of proposed Title IX changes that would explicitly prohibit discrimination based on gender identity and sexuality, but sidestepped the issue of transgender youth participation in sports. Those rules are expected to be finalized next month.

At the time, the department said it would undertake a separate rulemaking process on the athletics issue. Thursday’s announcement kicks off that process.

“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination. Being on a sports team is an important part of the school experience for students of all ages,” U.S. Secretary of Education Miguel Cardona said in a statement.

What the proposed rule says

The proposed rules would specifically prevent schools from adopting a “one-size-fits-all eligibility criteria” for sports, the fact sheet said.

That means that schools would not be allowed to categorically ban transgender students of any age and in any sport from playing on a team consistent with their gender identity.

Instead, schools would have the flexibility to develop eligibility criteria based on the objectives of the sport, such as fairness in competition or preventing sports-related injuries. Schools would not be able to base those criteria on the “disapproval of transgender students or a desire to harm a particular student,” according to the fact sheet.

But schools would still be allowed to bar transgender youth from playing sports consistent with their gender identity if the student’s participation would make it difficult to achieve fairness in competition, safety, or any other stated objectives of the sport. That would have to happen on a case-by-case basis and in a way that minimizes harm to any students who can’t participate in a sport, according to the Education Department.

Under the regulation, the Education Department said it expects elementary and middle school students would be able to play sports that align with their gender identity while there may be some limitations for transgender students at the high school and collegiate levels.

“Students in different grades and education levels have different levels of athletic skill, and schools offer sports teams for different reasons depending on students’ grade or education level,” the fact sheet said. “For example, teams for younger students often focus on building teamwork, fitness, and basic skills for students who are just learning about the sport, while a collegiate team may be primarily focused on competitive success.”

The rules would also require schools to make considerations for varying competition levels, such as varsity, junior varsity, and no-cut teams, and varying skills required for different sports. So schools that seek to limit students from participating in sports consistent with their gender identity would need to consult sport-specific rules from governing bodies such as the National Collegiate Athletic Association.

Schools that violate the rule would be at risk of losing Title IX funding. The department plans to enforce the rule in the same way it enforces rules barring other instances of discrimination in athletics. On a call with reporters Thursday afternoon, senior department officials said they are eager to work with schools to determine how they can help them come in compliance with the new rule once it is finalized.

The rule would be a major step forward for transgender students and their advocates, said Shiwali Patel, a lawyer at the National Women’s Law Center.

“Clarifying about the blanket bans being discriminatory is huge because it will have an impact on so many state laws that have blanket bans right now on the books,” she said.

But groups like NWLC, which works to fight against gender discrimination, may want to see more explicit language about what circumstances would allow a school to prevent a transgender student from participating in sports consistent with their gender identity, Patel said.

Proposal follows mounting anti-LGBTQ+ legislation

Department officials told reporters that the proposed rule would be the “law of the land” and override the growing number of state laws that aim to ban transgender girls from participating in girls sports.

Those laws have passed in recent years in addition to other legislation targeting transgender youth, including laws limiting their ability to seek gender-affirming care, go by their preferred pronouns and names in school, and use bathrooms that align with their identity.

Republicans in the U.S. House introduced the Protection of Women and Girls in Sports Act last month. The one-page bill would prohibit schools from allowing transgender girls to participate in girls sports.

“The following should never be a radical statement: Men are not women. Women are not men,” Rep. Virginia Foxx, R-N.C., said during a House Committee on Education and The Workforce hearing about the bill. “They certainly shouldn’t compete against each other in any publicly funded arena.”

Twenty states have passed laws preventing transgender youth from playing sports, according to the Movement Advancement Project, which tracks LGBTQ+-related legislation. Wyoming and Kansas are the latest states to pass such laws. Both specifically prohibit transgender girls from playing girls sports.

On Thursday, the U.S. Supreme Court allowed a 12-year-old transgender girl in West Virginia to remain on her middle school track and cross-country teams while her lawsuit challenging the state’s law barring transgender athletes from joining teams consistent with their gender identity proceeds. An appellate court had put the law on hold.

The proposed rule from the Biden administration is likely to spark outrage among conservative lawmakers and activists. Some state lawmakers and education leaders have suggested rejecting Title IX funds because of Biden’s earlier proposed rules protecting LGBTQ+ students from discrimination. South Carolina State Superintendent Ellen Weaver said the state should reject Title IX funding because of the previous Biden administration rule, according to The Post and Courier.

But efforts to ban transgender youth from participating in sports would be futile if the proposed rule were finalized as is, Patel said.

“It’s federal law,” she said. “States have to comply with it.”

Patel is hopeful that the proposed rule would also discourage more states from passing laws barring students from playing sports that align with their gender identity.

What the rule would mean for transgender athletes

The rule would still allow schools to bar students from participating in sports consistent with their gender identity if the student’s involvement violates the “educational objectives” of the sport, such as competitive fairness. Department officials said they expect this aspect of the rule to apply mostly to high school and collegiate sports, where the games are highly competitive.

The implications of that allowance remain unclear.

Jamie Bruesehoff, whose daughter Rebekah is a transgender girl who plays field hockey, said she’s still processing the proposed rule change.

“I am encouraged and grateful to see that the rule has been released,” Bruesehoff said. “In the end, I hope that the final rule is as expansive and affirming as possible.”

Athletes like Rebekah have been left in limbo over the past few years. In some cases, they’ve been required to prove they are trans through hormone treatments and physical examinations. In other cases, athletes have been forced to quit their sports after new laws have prevented them from playing altogether. And the issue has been a headache for coaches and athletic directors with transgender players as they navigate shifting regulations across state borders.

“Trans kids play sports for the same reason that all kids play sports: they want to be a part of their team, do something they love, and have fun with their friends,” Bruesehoff said. “It is of the utmost importance that we preserve and protect the ability for them to do that.”

What happens next

Over the next few weeks, the Education Department will post the proposed changes to the Federal Register, the government’s database for tracking new rules and regulations. People will then have 30 days to comment on the rules. Department officials weren’t able to give a timeline after those rules are finalized.

The first batch of proposed changes to Title IX garnered over 200,000 comments, most of which focused on the issue of transgender youth participation in sports despite the fact that the rules didn’t touch on that issue.