Title IX rule would allow schools to restrict transgender athletes in some cases

WASHINGTON (CN) — Less than a week after the Biden administration condemned discrimination against transgender youth, the U.S. Department of Education has proposed new regulations that would allow schools to bar transgender athletes from some competitive sports.

The Department of Education announced Thursday its proposed regulations on athletic eligibility under Title IX, which bars discrimination on the basis of gender identity at federally funded schools.

The new rule would allow schools to adopt sex-related eligibility criteria for male and female teams in some competitive high school and college programs. However, it would not allow blanket bans on transgender students from participating in athletics consistent with their gender identity.

“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination. Being on a sports team is an important part of the school experience for students of all ages,” U.S. Secretary of Education Miguel Cardona said in a statement included in a DOE fact sheet. “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 topic of children who identify as transgender has been a growing discussion across the country as Republican-controlled state legislatures have moved to require that students only compete in sports based on their biological sex. The laws have almost exclusively focused on transgender females competing with biological females.

According to the University of California, Los Angeles, 1.43% of people between the ages of 13 and 17 nationwide identify as transgender. Of adults who are 18 and older, about 0.52% of the population identifies as transgender.

Under the new policy, if a school is going to deny a student’s athletic eligibility, it must show that the decision is “substantially related to the achievement of an important educational objective” and factor in the sport, level of competition and the grade or education level involved. The regulation would require schools to “minimize harms to students whose participation on teams consistent with their gender identity would be limited or denied.” 

The Education Department said it expects elementary schools students will “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 consistent with their gender identity.”

For students in high school in college, however, 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.”

The Biden administration framed the regulation as reinforcing that schools can have separate male and female sports programs.

The proposal will likely enflame LGBTQ+ advocates and stands in stark contrast to statements issued by the administration within the past week criticizing some state measures that could be allowed under the new regulations.

President Joe Biden said in a statement last week that “MAGA extremists are advancing hundreds of hateful and extreme state laws that target transgender kids and their families.”

“Let me be clear: These attacks are un-American and must end. The bullying, discrimination, and political attacks that trans kids face have exacerbated our national mental health crisis,” he said. “My administration will never quit fighting to end discrimination, to stand against these unjust state laws, and to guarantee everyone the fundamental right and freedom to be who they are.”

Last Friday, the White House lauded efforts by the Department of Justice to challenge state laws specifically barring transgender students from competing in sports.

In the readout of a roundtable discussion with transgender students and their parents on Friday, Catherine Lhamon, assistant secretary for the Education Department's Office of Civil Rights, is quoted as telling the students that “federal law is in place to protect your rights. That is the mission of our office.”

The proposal now faces a 30-day public comment period before it becomes department policy.

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