Blanket bans on transgender athletes participating on school sports teams consistent with their gender identity would constitute a violation of Title IX under a set of proposed changes unveiled Thursday by the Biden administration.
Under the administration’s proposal, schools would be prohibited from adopting or applying a “one-size-fits-all” policy that categorically bans transgender students from participating on sports teams consistent with their gender identity.
“Such bans fail to account for differences among students across grade and education levels,” the Education Department said Thursday in a news release. “They also fail to account for different levels of competition — including no-cut teams that let all students participate — and different types of sports.”
Instead, schools covered by the proposed rule would be permitted to draft their own policies limiting athletic participation based on a set of sex-related criteria unique to their community. Policies must take into account each sport, level of competition and grade or education level, the department said Thursday.
Limits on participation would be allowed
Restrictions should also be “substantially related” to the achievement of an important educational objective and designed to minimize harms to transgender students whose opportunity to participate on a team consistent with their gender identity would be limited or denied.
“The proposed regulation would give schools flexibility to identify their own important educational objectives. They might include, for example, fairness, and competition, or preventing sports-related injuries,” a senior department official said Thursday on a call with reporters. “Some objectives, such as the disapproval of transgender students, or a desire to harm a particular student would not qualify as important educational objectives.”
It is expected that transgender elementary school students will generally be able to participate on sports teams consistent with their gender identity, according to the department’s proposal, while older students — especially at the high school and college level — are expected to be subjected to sex-related criteria that limit their participation in school sports.
The proposed rule will apply to K-12 schools, as well as colleges, universities and other institutions that receive federal funding.
The Education Department in June announced a number of proposed changes to the landmark civil rights statute, including expanding protections for transgender students by broadening the federal government’s definition of sex discrimination.
“The proposed regulations would clarify that Title IX’s prohibition on discrimination based on sex applies to discrimination based on sexual orientation and gender identity,” the department wrote in a fact sheet released in June. “They would make clear that preventing someone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Title IX, except in some limited areas set out in the statute or regulations.”
Education Department officials at the time said a separate proposal tackling eligibility requirements for transgender student athletes would be released at a later date.
Proposal tackles question of transgender students, sports
Thursday’s notice is the result of a years-long outreach effort, the department said in a news release. The proposed rule intends to address outstanding questions about when and how transgender students can participate in school sports, particularly as a national patchwork of transgender athlete restrictions continues to expand.
Laws or policies that prevent transgender students from competing on sports teams consistent with their gender identity have been adopted by at least 20 states since 2020, according to the Movement Advancement Project, which tracks state laws impacting LGBTQ people in the U.S.
A handful of those laws — including Idaho’s “Fairness in Women’s Sport Act,” the nation’s first statewide ban on transgender athletes — have been blocked by court orders.
House GOP lawmakers have also introduced federal legislation to bar transgender women and girls from female sports teams nationwide.
The “Protection of Women and Girls in Sports Act,” introduced by Rep. Greg Steube (R-Fla.) in each of the last three Congresses, also seeks to make changes to Title IX by retooling the law’s definition of sex to mean “a person’s reproductive biology and genetics at birth.”
The Education Department on Thursday said the proposed regulation would supersede other laws that categorically ban transgender athletes from sports if it is adopted as a final rule.
“The federal civil rights law is the law of the land,” the senior department official told reporters. “We would be eager to ensure its full satisfaction in every school community around the country.”