The Biden administration has proposed a new federal rule that would allow schools to restrict the ability of some transgender athletes to compete on sports teams matching their gender identity while opposing categorical bans on transgender participation.
The U.S. Department of Education announced the proposed rule in a release, noting that it had consulted with various stakeholders while developing the rule and was drafting it to clear up any uncertainty that students and school officials may have regarding the eligibility of transgender students to participate in school sports.
According to a factsheet from the Education Department, the rule would clarify that school districts’ policies violate Title IX when they categorically ban students from participating on sports teams matching their gender identity.
“One-size-fits-all policies that categorically ban transgender students from participating in athletics consistent with their gender identity across all sports, age groups, and levels of competition would not satisfy the proposed regulation,” the department’s factsheet reads. “Such bans fail to account for differences among students across grade and education levels. They also fail to account for different levels of competition — including no-cut teams that let all students participate — and different types of sports.”
Under the proposed rule — which the public will have 30 days to comment on before it is enacted — transgender or nonbinary-identifying students at the elementary level would “generally” be allowed to participate in sports consistent with their gender identity, with the department noting that it would be “particularly difficult” for a school to justify barring elementary school students from gender-specific teams.
However, the rule would also provide a framework for determining athlete eligibility that would allow schools or school districts to restrict high school and collegiate transgender athletes — especially those who have already completed puberty — from competing on teams matching their gender identity “in some cases, when they enable the school to achieve an important educational objective, such as fairness in competition.”
The rule states that any restrictions on transgender participation must be “substantially related to the achievement of an important educational objective,” and “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 Education Department noted in its factsheet that categorical bans based on a person’s identity can have negative ramifications.
“Preventing students from participating on a sports team consistent with their gender identity can stigmatize and isolate them, and those students may not be able to participate at all if the only other option is to participate on a team that does not align with their gender identity,” the rule reads.
“If a school could achieve its important educational objective by using sex-related criteria that would cause less harm but the school chooses not to minimize the harm, the school might not satisfy the proposed regulation, depending on the specific facts involved.”
The move by the Biden administration comes as more than a dozen states nationwide have adopted categorical bans requiring all transgender athletes to compete only in sports designated for their assigned sex at birth. Republican lawmakers have pushed the bans as part of a larger electoral strategy playing on the wider public’s general discomfort with issues related to sexual orientation or gender-nonconformity.
While President Biden has spoken out against categorical bans on transgender athletes, the proposed rule represents the most significant action his administration has taken to address such a hotly debated issue, particularly with respect to transgender women participating in women’s athletic competitions, reports CNN.
However, some LGBTQ advocates panned the rule and accused Biden of betraying past promises not to allow discrimination against the transgender community.
Alejandra Caraballo, a transgender activist, civil rights attorney, and clinical instructor at the Harvard Law School Cyberlaw Clinic, accused the rule of “legitimizing transphobia” and shifting the focus to sports and away from bigger issues, such as efforts to ban gender-affirming care for youth, or insurance coverage for gender-affirming treatments for adults.
“The rules are so mushy that most states would get way with categorical bans. Not that sports bans aren’t important but we’re usually talking about less than 100 kids NATIONALLY. Meanwhile tens of thousands of trans people could lose access to healthcare,” Caraballo tweeted.
In a follow-up tweet, she added: “To get a sense of how stupid the Biden administration rule on sports is, states could just impose hormone limits on trans school athletes knowing that they just made gender affirming care a felony. It would be permissible since it avoids a total ban that would violate the rule.”
The LGBTQ legal advocacy group Lambda Legal also expressed concerns about the proposed rule, arguing that it needs to be clarified and does not go far enough to ensure transgender youth are not discriminated against.
“This proposed rule includes critical recognition of the importance of participating in sports for transgender youth and shows why 100% of the state bans are invalid,” Sasha Buchert, a senior attorney with Lambda Legal and director of the organization’s Nonbinary and Transgender Rights Project, said in a statement.
“We are concerned about whether the proposed rule can properly eliminate the discrimination that transgender students experience due to the pervasive bias and ignorance about who they are,” added Buchert. “These students must have full and equal chances to participate because participation in athletics provides many long-term benefits for young people, including important health benefits, and chances to develop leadership skills, discipline, and self-confidence.”
Kelley Robinson, the president of the Human Rights Campaign, said in a statement that “every student deserves to be treated with dignity and respect” and called for the rule to be clarified to ensure all transgender students are “presumed eligible to participate in sports consistent with their gender identity.”
The Trevor Project, the nation’s leading suicide prevention and crisis intervention organization for LGBTQ youth, noted that its previous research has shown that transgender and nonbinary youth who have access to gender-affirming spaces or have their gender identity affirmed by adults, peers and institutions generally report lower rates of attempted suicide.
However, recent debates over transgender visibility, including attempts to impose sports-specific bans, have had negative ramifications for transgender and nonbinary youth, with 64% of trans and nonbinary respondents saying such debates have made them angry, with 44% saying such debates have made them feel sad, and more than 1 in 3, or 39% say it’s made them feel stressed, according to polling from The Trevor Project. Additionally, a 2022 peer-reviewed study found that many transgender high school girls who reported having an interest in participating in sports were reticent to do so, primarily due to fears around harassment, stigma, or restrictions in accessing gendered spaces like locker rooms.
Kasey Suffredini, the vice president of advocacy and government affairs for The Trevor Project, said while the proposed Biden rule would establish that the current categorical bans in place in at least 20 states would violate federal law, more must be done to clarify that transgender students are protected under Title IX, the federal law prohibiting sex-based discrimination in educational activities and opportunities.
“Title IX exists to ensure inclusion and prevent discrimination across the country, and state laws must uphold fundamental principles of law and fairness,” Suffredini said. “Nobody should be denied the opportunity to be part of a team just because of who they are.”
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