Proposed Ed Dept. Rule Would Block Flat-Out Ban of Trans Athletes

WASHINGTON — The Biden administration proposed a rule change on athletic eligibility under Title IX on Thursday that would block schools from enacting outright bans on transgender athletes from teams that are consistent with their gender identities.

The notice of proposed rulemaking was issued through the U.S. Dept. of Education Thursday afternoon after what it explains was two years of “outreach” and consultation with schools, students, parents and coaches.

In a press release the department said the one thing it heard consistently was that these stakeholders feel a tremendous amount of uncertainty about when and how transgender students can participate in school sports.

This was particularly true in states where lawmakers have adopted “new laws and policies on athletics participation that target transgender students.” 

The proposed rule would establish that policies violate Title IX when they “categorically” ban transgender students from participating on sports teams consistent with their gender identity just because of who they are. 

However, the administration has also recognized “that in some instances,” particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation. 

The proposed rule would provide schools with a framework for developing eligibility criteria that protects students from being denied equal athletic opportunity, while giving schools the flexibility to develop their own participation policies, the education department said.

“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination,” Education Secretary Miguel Cardona said in a written statement.

“Being on a sports team is an important part of the school experience for students of all ages,” he said.

“Beyond all the benefits to physical and mental health, playing on a team teaches students how to work hard, get along with others, believe in themselves, and build healthy habits that last a lifetime,” the secretary continued. “Today’s proposed rule is designed to support Title IX’s protection for equal athletics opportunity.”

The publication of the Notice of Proposed Rulemaking sets in motion a 30-day public comment period.

Title IX is the law that prohibits sex discrimination at educational institutions that receive federal funding. The proposed rule would apply to public K-12 schools, as well as colleges, universities and other institutions that fall into that category.

Under the proposed regulation, schools would not be permitted to adopt or apply a one-size-fits-all policy that categorically bans transgender students from participating on teams consistent with their gender identity.

That’s because such bans, the Education Department said, 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.

Taking those considerations into account, the department expects that, under its proposed regulation, elementary school students would generally be able to participate on school sports teams consistent with their gender identity and that it would be particularly difficult for a school to justify excluding students immediately following elementary school from participating on teams consistent with their gender identity.

For older students, especially at the high school and college level, the department expects that sex-related criteria that limit participation of some transgender students may be permitted, in some cases, when they enable the school to achieve an important educational objective, such as fairness in competition, and meet the proposed regulation’s other requirements.

A summary of the proposed rule can be found here.

The unofficial version of the proposed regulation is available here.

In related news, the U.S. Supreme Court denied a request by the state of West Virginia Thursday to allow a state law banning transgender students from participating in sports teams that align with their gender identity to go into effect.

The state had wanted the law enacted while the case winds through the appeals process. 

The court’s 7-2 order was issued without comment and keeps an injunction issued by the 4th U.S. Circuit Court of Appeals in place. 

Dan can be reached at [email protected] and @DanMcCue