The Biden administration has proposed new rules that would prohibit schools from banning transgender athletes from competitive sports entirely, but would allow schools to ban some trans players from competing in high school and college sports.
The proposal, which was met with mixed reactions from both transgender activists and Republican lawmakers, comes shortly after the Supreme Court ruled to allow a 12-year-old trans girl to continue competing in track and cross country as a challenge to West Virginia's ban winds its way through the courts.
As states across the country consider blocking trans athletes from participating in school sports (and those bans are being challenged in court), the Education Department said its goal is to provide clarity to schools and families and stressed that a complete ban on transgender student-athletes would jeopardize institutions and educational programs that receive federal funding under Title IX, which protects against discrimination based on sex.
The Education Department said the reason for the proposed Title IX rule change was to “develop criteria for selecting teams that serve important educational purposes, such as ensuring fairness in competition or preventing sports injuries.”
The criteria used to determine a trans athlete's eligibility will vary by sport, level of competition and educational level, but the rules say they should “minimize harm” to transgender students.
But transgender advocates say that while the guidance may have been well-intentioned, it does not go far enough to provide protections for transgender students who want to participate in school sports, especially as 20 states have enacted bans on trans athletes.
Erin Reed, a Washington, D.C.-based trans activist and journalist who tracks anti-trans legislation, said she was blindsided by the rules.
“Schools will look at these policies and see that they allow bans as long as they serve an 'educational purpose' and minimize harm to trans students,” Reed told BuzzFeed News. “Essentially… it provides guidance on how to implement bans and still comply with the law.”
The guidance says schools will find it difficult to justify excluding primary school pupils. However, when it comes to transgender students in high schools and colleges, Reed said the language in the proposed rule does not explicitly say whether a school would be in violation for discriminating against them.
“I think the most unpleasant thing is that by leaving these problems unaddressed, [Biden is] leaving the door open, and he's kind of paying homage to right-wing talking points,” Reed said. [Republicans] capture those places where he lost ground. It will feel like a betrayal.”
The department says schools can use documents such as a birth certificate or driver's license and require a physical examination or medical testing related to a student's gender to “limit or deny a student's eligibility based on the student's gender identity.”
Reed is concerned that this type of criteria could open the door to an invasion of privacy that Echoes concerns from lawyers in Kansaswhere Republican lawmakers won a ban on trans students participating in girls' and women's sports over the governor's veto.
“I think this is problematic and it will have a big impact on states like Kansas that are trying to require genital examinations for sports,” Reed said. “I think this document doesn't do what it was supposed to do. It does more harm than good to transgender people.”
Other trans advocates are also concerned about how the proposed rules will be enforced.
Melanie Willingham-Jaggers, executive director of GLSEN, told BuzzFeed News that the selection criteria “cannot be based on bad science or bigotry and must serve a legitimate purpose.”
“This should mean that no transgender, non-binary or intersex student is denied the opportunity to participate in school sports, but amid increasing anti-trans political attacks, we cannot count on good actors,” they said.
At Thursday's briefing, a reporter asked The Department of Education will address how it will enforce this rule in states that have already enacted complete bans on trans athletes.
“The federal civil rights law is the law of the land,” a senior agency official told reporters. “In the unlikely scenario that a school board refuses to comply with the law, the department has a tool to initiate withholding of funds and ensure that no federal dollars are spent to discriminate against students.”
The department also nodded to the NCAA's sport-by-sport policies as an example of how to include transgender athletes, but the official said the department does not take a position on the association's policies.
Earlier Thursday, at a White House press conference, press secretary Karine Jean-Pierre highlighted the dire state of LGBTQ rights in the country. “This has been one of the worst weeks of 2023 in terms of anti-LGBT bills,” she said, adding, “We have their back, this administration has their back.”
The release of the proposed rule change Thursday also drew sharp criticism from Republican members of Congress, who argued that the Biden administration's explicit recognition of trans athletes in school sports would jeopardize women's sports and broader Title IX protections.
“This insane justice will not stand,” said Rep. Andrew Clyde, a Republican representative from Georgia. tweeted. “Mark my words: I will fight this woke nonsense through the appropriations process.”
Senator Marsha Blackburn told Fox News that Democrats are abandoning protections for women. “The left is certainly going to make it impossible for them to compete fairly,” she said.
The regulation will be open for public comment for 30 days, and the department plans to finalize it by May.
