On Thursday, two separate yet related stories on the rights of transgender students to participate in school sports made headlines. First, the US Supreme Court denied an emergency application to reinstate West Virginia’s transgender athlete ban, which had been on hold since its 2021 passage was contested by a 12-year-old trans girl fighting to stay on her school’s track team. Then the Biden administration revealed a new Title IX proposal in which schools aren’t allowed to issue blanket bans on trans athletes, but would be allowed to ban them under certain circumstances.
Last June, the Biden administration announced proposed amendments to Title IX — the law that prohibits discrimination based on sex, including gender identity — and stated it would issue “a separate notice of proposed rulemaking” to “address whether and how the Department of Education should amend the Title IX regulations to address students’ eligibility to participate on a particular male or female athletics team,” as per the fact sheet released in June.
But it was not until yesterday, soon after the Supreme Court’s refusal to enforce West Virginia’s transgender athlete ban, that the administration, through the Department of Education (DOE), announced a notice of proposed rulemaking (NPRM) on athletic eligibility under Title IX. Nationwide, schools will not be able to institute a “one-size-fits-all policy that categorically bans transgender students from participating on teams consistent with their gender identity,” the DOE fact sheet states; however, that doesn’t mean schools won’t be able to ban them under certain circumstances.
Criteria that could be grounds for a specific school ban on trans athletes includes “fairness in competition and preventing sports-related injury.” Such limits would have to be done on a case-by-case basis 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 fact sheet goes on to say, “The NPRM, if adopted as a final rule, would provide much needed clarity for students, parents, and coaches.”
Certain state athletic associations as well as some localities have their own policies that allow transgender students to play sports, according to the Movement Advancement Project (MAP), a think tank largely focused on LGBTQ+ issues. But in recent years there has also been a flurry of proposed and passed state laws that prevent transgender athletes from participating in sports consistent with their gender identity. Currently, there are 20 states that have “blanket bans'' on participation, according to MAP.
The fight over policies governing transgender athletes is playing out on the judicial level as well. In their dissent to the Supreme Court’s decision not to reinstate West Virginia’s transgender athlete ban, Justice Samuel Alito and Justice Clarence Thomas said they would have reinstated the ban. They added that the Court is “likely to be required to address in the near future” questions on the application of Title IX and the 14th Amendment to the issue of participation of transgender athletes in sports.
While the Biden administration’s proposal prohibits blanket bans, its caveats — which allow schools to set limits under various circumstances — have angered transgender students and their allies. On Twitter, some said President Biden threw transgender youth “under the bus” after telling them he had their back in his first address to Congress in April 2021. Rep. Alexandria Ocasio-Cortez (D-NY) tweeted her disappointment: “Absolutely no reason for the Biden admin to do this. It is indefensible and embarrassing,” she wrote. “The admin can still walk this back, and they should. It’s a disgrace.”
In a press release, Emma Grasso Levine, Title IX policy and program manager of Know Your IX, a project of Advocates for Youth, said, “It is crucial that the final version of this Title IX regulation goes farther to eliminate discriminatory practices in schools against transgender, intersex, and nonbinary students and their ability to participate in school athletics. In alignment with Title IX’s promise, it is the responsibility of the Biden administration to eliminate all transphobic, discriminatory barriers that are currently taking root in school policies.”
Meanwhile, Republican leaders are already looking for a fight against the proposed rule. South Dakota's governor Kristi Noem tweeted, “South Dakota will not allow this to stand. We will lead. We will defend our laws. Only girls will play girls’ sports. President Biden, we’ll see you in Court.”
The proposed changes to Title IX by the Biden administration and the Supreme Court’s decision occurring on the same day shows that the fight over whether transgender students can take part in sports is far from over.
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