Schools would be allowed to bar male-born students who identify as female from girls’ and women’s sports over safety and fairness concerns, but not impose categorical bans such as those passed by Republican-led legislatures, under a rule that the Biden administration proposed Thursday.
The Department of Education’s proposed change to Title IX student athletic eligibility rejected “transgender bans,” requiring schools to ensure that sex-based limits serve “important educational objectives” and factor in the specific sport, students’ ages and level of competition in question.
“A one-size-fits-all categorical ban that excludes all transgender girls and women from participation on any female athletic team, for example, would not satisfy the proposed regulation because it would fail to account for the nature of a particular sport, the levels of competition, or the grade or education level of students,” a senior administration official said on a call with reporters.
The Title IX proposal would target a hot-button issue in the national debate over transgender rights, with both sides trying to earn political capital.
Schools would be instructed “to minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied,” the department said.
The rule would apply to all schools that receive federal funding, including K-12 public schools, community colleges and universities. Public comment will be open for 30 days after the rule is published in the Federal Register.
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The administration official suggested that restrictions on transgender participation in girls’ and women’s sports likely would increase as children grow into teenagers and sports become more competitive.
“We expect that the youngest students, for example, those in elementary schools, would generally be able to participate on school-sponsored teams consistent with their gender identity under this proposed regulation,” the official said. “For higher grade levels, like high school or college, we expect the criteria that limit participation of some transgender students may be permitted in some cases.”
The proposed change was less sweeping than many on either side anticipated. The department didn’t base athletic eligibility on gender identity. The Biden administration had staunchly supported an extension of anti-discrimination protections to sexual orientation and gender identity.
At the same time, the proposal runs headlong into laws adopted in 20 conservative states that prohibit male-born students from joining female teams without distinguishing among different sports or competition levels, setting up a potential multistate legal challenge. Supporters of the blanket ban say male-born students have a biological edge over female competitors in sports such as swimming and track.
Penny Nance, CEO and president of Concerned Women for America, said the proposed rule fails to protect female athletes from having to compete with biological males.
“Biden has put the final nail in the coffin of Title IX,” Ms. Nance said. “Under this rule, equal rights for female athletes are history. Those 50 years of women’s achievements can now go to men pretending to be women.”
Nicole Neily, president and founder of Parents Defending Education, said the “Biden administration is trying to have their cake and eat it too” by leaving it to school districts to determine eligibility.
“Without a doubt, institutions are going to err on the side of ‘inclusion’ because they fear the wrath of the Education Department — thus achieving the department’s end goal while allowing them to maintain plausible deniability that they coerced districts into doing so,” she said.
The National Center for Lesbian Rights cheered the proposed rule. The center said the proposal would ban blanket exclusions of transgender students from school sports – which no state has done – and requires that “any restrictions must be firmly supported by clear evidence and must minimize harm to transgender students.”
“Transgender youth are an integral part of every school across this country,” said NCLR Executive Director Imani Rupert-Gordon. “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.”
Asked how the rule, if adopted, would affect the sweeping bans that some states have on their books, a senior official told reporters that “the federal civil rights law is the law of the land.”
Some commenters on social media said the language would bring more confusion to the debate.
The department emphasized that restrictions on transgender participation “could not be premised on disapproval of transgender students or a desire to harm a particular student.”
Alex Nester, political director of Parents Defending Education Action, called the proposed regulations “clumsy” and “discombobulated.”
“Lawmakers in 20 states have decided to stand with female athletes. Most voters, too, want sports separated by sex — notably due to concerns for the physical safety of female athletes,” she said. “With their clumsy, discombobulated proposed Title IX guidance, the Biden administration clearly demonstrated they’re more interested in political pandering than protecting women and girls.”
The success of transgender competitors such as former collegiate swimmer Lia Thomas has raised alarm about biological males taking awards and team spots intended for women, but the administration stressed that such cases are few and far between.
“What we know is that there’s not a lot of transgender athletes trying to play on school teams around the country,” the official said. “It’s a small subset of students in schools and a small subset of student-athletes in schools.”
The Biden administration is expected to release proposed Title IX regulations in May that would overwrite the Trump-era rulemaking on sex discrimination and sexual harassment and assault allegations on campus.
Education Secretary Miguel Cardona said the central role of sports for so many students in elementary and secondary education made it imperative to get the balance right.
“Being on a sports team is an important part of the school experience for students of all ages,” he said in a statement, and “every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination.”
• Valerie Richardson can be reached at firstname.lastname@example.org.
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