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Biden Administration's New Proposal on Transgender Athletes Draws Criticism

Biden Administration's New Proposal on Transgender Athletes Draws Criticism

Secretary of Education Miguel Cardona

A proposed rule on the enforcement of Title IX would state that overall bans on trans student athletes violate that law but would allow for some exclusion of trans players.

The Biden administration has released a proposed rule on the treatment of transgender students in school sports, mostly endorsing their full participation, but with some provisions that are raising concerns about potential discrimination.

The rule deals with the enforcement of Title IX of the Education Amendments of 1972, the law banning sex discrimination in education.

“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,” says a press release from the U.S. Department of Education. But it “recognizes that in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation,” the release continues. “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.”

Across the nation, 20 states, most recently Kansas, have adopted laws that either bar all trans students from competing under their gender identity or bar trans girls and women from female teams. Some of the laws deal only with K-12 public schools, sometimes including charter schools or private schools that play against public ones. Some address public colleges and universities as well.

The push to pass these laws has come in recent years even though very few trans students are participating in school sports. A small number have won championships, but trans athletes do not dominate school sports by any means. Anti-LGBTQ+ activists claim that trans girls and women have unfair advantages over cisgender females, but scientists and LGBTQ+ advocates say this is not the case.

The proposed regulation would apply to all K-12 schools, colleges, universities, and other academic institutions that receive federal funding, as almost all do. It will be published in the Federal Register and then will be subject to a 30-day period of public comment before a final version is adopted. It was developed with input from students, parents, teachers, coaches, administrators, and others over the past two years, and the Department of Education saw that they needed clarity on policy regarding trans athletes, the release says.

“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,” Secretary of Education Miguel Cardona said in the release. “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. Today’s proposed rule is designed to support Title IX’s protection for equal athletics opportunity. We welcome and encourage public comment on the proposed regulation and will continue working to ensure Title IX’s effective protection for all students.”

Some LGBTQ+ activists are already raising concerns about the rule. “Honestly, this move by Biden to push a rule on trans kids in sports is not only a backwards betrayal, it [forces] us to have to spend our time dealing with god damn sports instead of criminal bans on our healthcare,” tweeted trans legal scholar Alejandra Caraballo. “He could have just done nothing. This is legitimizing transphobia.”

Journalist and activist Erin Reed deemed the proposal a betrayal.

Sasha Buchert, a senior attorney with Lambda Legal and director of its Nonbinary and Transgender Rights Project, voiced concerns as well.

“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,” Buchert said in an emailed 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. 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."

Buchert said the organization would submit comments to the administration over its concerns "to further remove those remaining bigotry-based barriers to full and equal participation by transgender youth.”

The Congressional Equality Caucus, consisting of LGBTQ+ and allied members of Congress, plans to review the proposal too. “Trans kids play sports for the same reasons as their cisgender peers: to be part of a team, learn sportsmanship, and challenge themselves. This proposed rule properly affirms that categorical bans that deny trans kids the opportunities to participate in school sports and learn these values violate Title IX,”Equality Caucus Chair Mark Pocan said in a press release. “In the coming days, we will continue to further analyze this rule and what restrictions may or may not be permitted. We will be providing our feedback to the Department of Education to ensure trans students are afforded their full civil rights protections under Title IX.”

GLSEN, which works for LGBTQ+ equality in education, will do so as well. “We commend the U.S. Department of Education for making clear that categorical trans school sports bans — like those enacted in many states — violate Title IX," said a statement from Executive Director Melanie Willingham-Jaggers. "The proposed rule also suggests that any eligibility criteria that limits participation consistent with gender identity cannot be based on junk science or bigotry and must serve a legitimate purpose. This should mean that no transgender, nonbinary, or intersex student is denied the opportunity to play school sports — but amid intensifying anti-transgender political attacks, we cannot count on good actors. We will continue to work with the Department to ensure that a final rule supports the full inclusion of trans, nonbinary, and intersex students in all aspects of education, including sports.”

The Human Rights Campaign praised some aspects of the proposed rule but said there is room for improvement. “State lawmakers take note — discriminating against transgender athletes is wrong and a violation of federal law. This new rule makes that abundantly clear,” HRC President Kelley Robinson said in a press release.“Every student deserves to be treated with dignity and respect. This includes transgender girls of all ages and in all sports, without exception. The new rule should be clarified to ensure that all transgender students should be presumed eligible to participate in sports consistent with their gender identity. This moment we’re in is truly a crisis for transgender young people — and we’re calling on elected leaders at every level of government to fight harder for our kids. For all of us who believe in equality and justice for all, we should be relentless in our work to undo the harms that have already been done and our pursuit of a better tomorrow.”

The Trevor Project praised the proposal’s stance against categorical bans.

“This proposed rule makes it clear that the 20 state laws categorically prohibiting transgender young people from participating in school sports violate federal law,” Kasey Suffredini, the group’s vice president of advocacy and government affairs, said in a press release. “Title IX exists to ensure inclusion and prevent discrimination across the country, and state laws must uphold fundamental principles of law and fairness. Nobody should be denied the opportunity to be part of a team just because of who they are.

“The Trevor Project’s research found that 71% of transgender and nonbinary youth reported that they have experienced discrimination based on their gender identity, and further research shows that those who reported experiencing discrimination had more than double the odds of attempting suicide in the past year compared to those who did not. Being told that you cannot participate in an activity, or even enter a space because of who you are can be incredibly damaging to a young person’s mental health and sense of self. We must reject blanket bans and afford trans young people the same opportunities as their peers to lead happy, healthy, and full lives.”

Jennifer Levi, senior director of transgender and queer rights at GLBTQ Legal Advocates and Defenders, issued a positive comment: “We applaud the Department of Education for issuing a rule that affirms the importance of giving transgender students the chance to play sports. Being on a team helps students build healthy self-esteem, confidence, and positive self-image. The proposed rule prohibits the kind of categorical bans adopted in too many states that are hurting transgender students and that send a dangerous message to all students. It also allows schools to adopt reasonable policies for inclusion of transgender athletes that take into account differences between sports and across levels of competition. With this proposal the Department is recognizing the importance of fair and equal treatment for transgender student athletes.”

The Advocate has sought comment from the Department of Education and the White House and will update this story if we receive a response.

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