Biden’s Title IX Rules Could Ban Trans Athletes From School Sports

The Biden administration has proposed new regulations that would prohibit schools from completely banning transgender athletes from participating in sports, but would allow schools to ban certain trans players from competing in high school and college sports.

The proposal, which drew mixed reactions from transgender activists and Republican lawmakers, came shortly after the Supreme Court ruled allowing a 12-year-old trans girl to continue competing in track and field and cross country as a challenge to West Virginia’s ban makes its way through the courts.

As states across the country consider barring trans athletes from participating in school sports — and such bans are being challenged in court — the Department of Education said it aimed to provide clarity for schools and families and stressed that blanket bans on transgender student-athletes would jeopardize educational institutions and programs that receive federal funding under Title IX, which protects against sex discrimination.

The Department of Education said the reasoning behind the proposed change to Title IX regulations was to “develop team eligibility criteria that serve important educational purposes such as ensuring fairness in competition or preventing sports-related injuries.”

The criteria used to determine a trans athlete’s eligibility varies by sport, level of competition and level of education, but regulations state that they should “minimize harm” to transgender students.

But transgender rights advocates say that even if these guidelines were well-intentioned, they are not enough to ensure the protection of transgender students wanting to participate in school sports, especially since 20 states have imposed bans on transgender athletes.

Erin Reed, a Washington, D.C.-based trans activist and journalist who tracks anti-trans legislation, said she was stunned by the regulations.

“Schools are going to look at these regulations and they’re going to see that they allow bans if they serve an ‘educational purpose’ and if they minimize harm to trans students,” Reed told BuzzFeed News. “Essentially… it gives a guide on how to enact bans while remaining compliant with the law. »

The guidance says it would be difficult for schools to justify excluding primary school pupils. However, when it comes to transgender students at the high school and college level, Reed said the language of the proposed rule does not explicitly say whether a school would be out of compliance for discriminating against them.

“I think the most frustrating thing is that by leaving these issues unaddressed, [Biden is] leaving a door open and he kind of gives credence to right-wing talking points,” Reed said. [Republicans] seize the places where it has conceded ground. This will feel like a betrayal.

The department says schools could use documents such as a birth certificate or driver’s license and require physical exams or medical tests linked to a student’s sex to “limit or deny a student’s eligibility to participate based on their gender identity.”

Reed fears that this type of criteria could open the door to privacy violations, which echo concerns of Kansas defenderswhere Republican lawmakers pushed through a ban on trans students in girls’ and women’s sports despite the governor’s veto.

“I think it’s embarrassing and it’s going to be a big problem for states like Kansas that are trying to require genital inspections for playing sports,” Reed said. “I think this document falls short of what it was intended to do. It hurts trans people more than it helps.”

Other trans rights advocates are also concerned about how the proposed rules might be enforced.

Melanie Willingham-Jaggers, executive director of GLSEN, told BuzzFeed News in a statement that the eligibility criteria “cannot be based on bogus science or intolerance and must serve a legitimate purpose.”

“This should mean that no transgender, non-binary or intersex student is denied the opportunity to play sport at school – but amid intensifying anti-transgender political attacks, we cannot rely on good actors,” they said.

During a press briefing on Thursday, a journalist request the Department of Education how it would tackle enforcement of this rule in states that have already passed a total ban on trans athletes.

“The federal civil rights law is the law of the land,” a senior department official told reporters. “In the unlikely scenario that a school committee refuses to comply with the law, the tool available to the department is to initiate withholding of funds and ensure that no federal money is spent to discriminate against students.”

The department also praised the NCAA’s sport-by-sport policy as an example of how to include transgender athletes, but an official said the department does not take a position on the association’s policy.

Earlier Thursday, during a White House press conference, press secretary Karine Jean-Pierre highlighted the dire situation of LGBTQ rights in the country. “This has been one of the worst weeks of 2023 so far in terms of anti-LGBTQ bills,” she said, adding, “We support them, this administration supports them.” »

Thursday’s release of the proposed rule change also drew sharp criticism from Republican members of Congress, who argued that the Biden administration’s explicit acceptance of trans athletes in school sports would threaten women’s sports and Title IX’s broader protections.

“This senseless justice cannot stand,” said Rep. Andrew Clyde, Republican of Georgia. tweeted. “Mark my words: I will fight this woke nonsense through the appropriations process.”

Senator Marsha Blackburn told Fox News that Democrats are rolling back protections for women. “The left certainly intends to deprive them of the opportunity to compete fairly,” she said.

The regulations will be open for public comment for 30 days and the department plans to finalize the rule by May.