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Biden proposal would bar full ban on trans athletes, with exceptions

The proposal would prevent an outright ban on trans athletes participating in school sports, but leaves room for schools to limit participation.
Posted at 3:41 PM, Apr 07, 2023
and last updated 2023-04-07 15:41:36-04

Schools and colleges across the U.S. would be forbidden from enacting outright bans on transgender athletes under a proposal released Thursday by the Biden administration, but teams could create some limits in certain cases — for example, to ensure fairness.

The proposed rule sends a political counterpunch toward a wave of Republican-led states that have sought to ban trans athletes from competing in school sports that align with their gender identities. If finalized, the proposal would become enshrined as a provision of Title IX, the landmark gender-equity legislation enacted in 1972.

The rule must undergo a lengthy approval process, however, and it’s almost certain to face challenges. While opponents sharply criticized the proposal, some advocates for transgender athletes were concerned that it did not go far enough.

The proposal comes on the same day that the Supreme Court said a 12-year-old transgender girl in West Virginia can continue competing on her middle school track and cross-country teams while legal battles over the state’s transgender law continue. The law bans transgender athletes from female teams.

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All told, at least 16 states now have bans in effect covering at least high school interscholastic sports. Some also extend to intramural, club or college sports. Enforcement of bans in at least three other states has been put on hold by courts, and one more state has adopted a ban that doesn't take effect until July.

Under the Education Department's proposed rule, no school or college that receives federal funding would be allowed to impose a "one-size-fits-all" policy that categorically bans trans students from playing on sports teams consistent with their gender identity. Such policies would be considered a violation of Title IX.

Still, the proposal leaves room for schools to develop team eligibility rules that could ultimately result in restricting trans athletes' participation.

Such restrictions would be allowed only if they serve "important educational objectives," such as fairness in competition and reduction of injury risks.

Any limits would have to consider the sport, the level of competition and the age of the students. Elementary school students would generally be allowed to participate on any teams consistent with their gender identity, for example. More competitive teams at high schools and colleges could add limits, but those would be discouraged in teams that don't have tryouts or cuts.

"Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination," said Miguel Cardona, President Biden's education secretary, in a statement.

Biden's administration used "fairness of competition" as criteria, which has been part of the debate both in the U.S. and globally. But officials offered no specifics on how such criteria would be determined.

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Of the tens of millions of high school students in the U.S., about 300,000 youth between the ages of 13 to 17 identify as transgender, according to a 2022 study from the Williams Institute, a think tank at UCLA focused on LGBTQ+ issues. The number of athletes within that group is much smaller; a 2017 survey by Human Rights Campaign suggested fewer than 15% of all transgender youth play sports.

Asked about the state bans now in place, a senior Education Department official briefing reporters on condition of anonymity said Title IX is the law of the land and officials would work to ensure it's being followed in all the states.

Critics argue transgender athletes have an advantage over cisgender women in competition. Last year, Lia Thomas became the first transgender woman to win an NCAA swimming title. College sports' governing body, however, adopted a sport-by-sport approach to transgender athletes in January 2002, though recently the NCAA's board decided the approach won't be fully implemented until 2023-24.

The NCAA released a statement Thursday night saying: "The NCAA's current transgender student-athlete participation policy aligns with the Olympic movement and balances fairness, inclusion and safety for all student-athletes. That policy remains in place while the lengthy Title IX regulatory process plays out."

At the same time, international sports-governing bodies are instituting policies that effectively ban the vast majority of trans women from track and field and swimming events.

An attorney for cisgender runners decried the president's proposal as "a slap in the face to female athletes who deserve equal opportunity to compete in their sports."

"The Biden administration's rewriting Title IX degrades women and tells them that their athletic goals and placements do not matter," said Christiana Kiefer, senior counsel at Alliance Defending Freedom. She represented Connecticut runners who sued over the participation of two transgender girls in track and field events.

President Joe Biden's administration has made it a priority to bolster the rights of trans students. Last year it proposed a separate federal rule that for the first time would extend Title IX rights to LGBTQ+ students, broadly protecting them from discrimination in education.

That rule — which drew more than 240,000 comments from the public and sharp opposition from conservatives — is expected to be finalized as soon as next month.

The new proposal doesn't offer examples of acceptable limits that could be placed on school sports, but it clarifies that restrictions couldn't be directed at trans students only. Schools would be left to navigate that tricky legal terrain, with the knowledge that any violation could bring a federal civil rights investigation or lawsuits.

Schools that choose to impose limits must "minimize harms" to students who lose out on athletics opportunities, the proposal says. If a school can achieve objectives like fairness in ways that cause less harm, then the school could be deemed to be violating Title IX.

Schools that violate Title IX can face penalties up to a complete loss of federal funding, although no school has ever been dealt that punishment.