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Biden Plan Would Forbid Across-the-Board Bans on Transgender Participation in School Sports

But the rule would allow flexibility to limit trans students鈥 participation at the more competitive high school and college levels

Rebekah Bruesehoff speaks at a podium outside the U.S. Capitol building; the sign on the podium says hashtag Let kids play.
Rebekah Bruesehoff, a trans student from New Jersey, has become an outspoken advocate for trans students鈥 rights. (Getty Images)

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School districts that ban transgender athletes in school sports risk losing millions of dollars in federal education funds under released by the U.S. Department of Education Thursday. 

If adopted, school systems in that “categorically” ban transgender athletes could find themselves caught between state and federal laws, a tension that is likely to play out in the courts.

Under the proposed rule, however, schools and colleges could 鈥渁dopt policies that limit transgender students鈥 participation鈥 in specific sports 鈥 particularly at the more competitive high school and college levels. That would effectively bar some transgender girls from participation.

鈥淪ome sex-related distinctions in sports are permissible as long as the school ensures overall equal athletic participation opportunities,鈥 a senior administration official said in a briefing with reporters, noting the department鈥檚 effort to address the shifting legal landscape on an issue that has sharply divided the country since President Joe Biden took office. 

President Joe Biden issued an executive order on his first day in office that said Title IX covers discrimination based on gender identity. (Getty Images)

The rule will be published in the coming weeks, the official said, and available for public comment for 30 days.

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

The proposed rule makes good on a promise Biden issued on his first day as president, when he released an stating that Title IX protections against discrimination extend to students based on their gender identity and sexual orientation. Since then, banning transgender students from competing in girls sports has become a defining issue for Republicans. Just this week, Kansas lawmakers overrode the veto of Gov. Laura Kelly and imposed a ban on transgender athletes competing in kindergarten through college. And 17 states that they would sue if the department went through with efforts to 鈥渞edefine biological sex to include gender identity.鈥 

But administration officials believe they鈥檝e struck an appropriate compromise. 鈥淭he proposed rule that we offer today is our best judgment,鈥 the department official said. 鈥淲e are confident in our legal opinion.鈥

The proposal would require schools to carefully balance issues of inclusion and fairness, and nods toward evolving understanding of how children’s bodies develop during puberty. It states that most students in the elementary grades would be able to play sports consistent with their gender identity and likely be able to continue doing so in middle school. At higher levels, schools would have to consider the specific sport and competitiveness level before determining if transgender students should be excluded. Schools would be allowed to decide for themselves, the official said, whether limiting trans students鈥 participation meets an educational goal.

鈥淭his is a high, demanding standard that will be difficult for schools to meet,鈥 said Scott Skinner-Thompson, an associate law professor at the University of Colorado-Boulder. 

The administration鈥檚 measure may not go far enough for transgender student activists or those who think inclusion hinders the goals of women鈥檚 sports.

Conservatives who have opposed the administration鈥檚 stance on the issue said it puts school districts in the middle. The proposal, according to , places 鈥渢he onus on school districts鈥 to determine whether their policy would violate the law.

Florida Education Commissioner Manny Diaz Jr. went further, promising in a statement that 鈥渨e will never allow boys to play in girls鈥 sports. We will fight this overreach tooth and nail. And we will stop at nothing to uphold the protections afforded women under Title IX.鈥 

LGBTQ advocates say conservatives are discriminating against vulnerable students who make up just . 

Some advocates welcomed the proposed rule鈥檚 language that across-the-board bans on trans girls participating in girls and women鈥檚 sports violate the law, but expressed concern that some trans students would still face discrimination.

Title IX 鈥減rotections don鈥檛 stop when a student leaves the classroom to go out onto the soccer field or a volleyball court or into a bathroom,鈥 said Sasha Buchert, nonbinary and transgender rights project director at Lambda Legal, a law firm and advocacy organization. 

The draft rule also comes as the GOP-led House prepares to vote on 鈥 the Protection of Women and Girls in Sports Act 鈥 that would essentially turn state bans into federal policy. The legislation is not expected to pass in the Senate. 

The state bans have been the subject of numerous legal challenges. The release of the rule late in the afternoon before a holiday weekend coincided with the Thursday of West Virginia Attorney General Patrick Morrissey鈥檚 emergency request to allow its 2021 Save Women鈥檚 Sports law to go into effect. Becky Pepper-Jackson, identified male at birth, and her mother Heather Jackson to prevent the law from being implemented, saying that it violates Title IX and the U.S. Constitution. 

The court鈥檚 ruling means that Pepper-Jackson, 12, can continue participating on her school鈥檚 cross country and track teams while the U.S, Appeals Court for the 4th Circuit considers her case.

The American Civil Liberties Union of West Virginia and Lambda Legal called the state鈥檚 request 鈥渁 baseless and cruel effort to keep Becky from where she belongs 鈥 playing alongside her peers as a teammate and as a friend.鈥

The draft is the second part of the administration鈥檚 rewrite of Title IX. Released last year, the initial draft extended Title IX protections to LGBTQ students but left unanswered questions about school sports.

The administration largely aims to reverse a Trump-era rule that required live hearings as part of investigations into sexual harassment and misconduct. The proposed rule also removes a requirement that defines harassment as 鈥渟evere, pervasive and objectively offensive.鈥 

The department had to review nearly 350,000 comments on Title IX, with many focusing on sports. 

鈥淲e’ve been very grateful to be able to take account of the very wide variety of views on this topic,鈥 the official said. Comments from students, professional athletes, teachers and others were incorporated to 鈥渋nform that proposed law.鈥 

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