The Biden administration on Thursday proposed new regulations that would allow schools to bar transgender athletes from participating in competitive high school and college sports, but disallow blanket bans on the athletes that have been approved across the country.
The rules would narrow when discrimination of trans athletes would be permitted. But they also would offer guidelines for when schools could bar their participation.
Under the proposal, schools would need to consider a range of factors before imposing a ban on trans athletes and would need to justify it based on educational grounds, such as the need for fairness. So, for instance, a school district could justify a ban on transgender athletes on their competitive high school track and field team, whereas a district would have a harder time making that case for an intramural middle school kickball squad.
The long-awaited proposal, which is subject to public comment, puts forth a framework for how schools can comply with Title IX, the 50-year-old federal law that bars schools from discriminating on the basis of sex. It would apply to all public K-12 schools, as well as colleges and universities that receive federal funding.
Reaction was mixed. Transgender rights activists said the proposal provided a welcome set of protections for trans students but also worried the regulations could offer a road map for those who want to discriminate.
“The proposed rule helps clarify that these blanket bans on transgender athletes are in violation of Title IX and is a really positive development,” said Scott Skinner-Thompson, a supporter of transgender rights and associate professor at the University of Colorado Law School. But he said the provisions allowing for discrimination were “deeply troubling.”
“When it comes to the hard cases, this is saying that trans kids can be discriminated against,” he said.
Conservatives were opposed, objecting to a proposal that would, in effect, wipe out blanket bans on transgender athletes passed in recent months by 20 states.
“Under this rule, equal rights for female athletes are history,” said Penny Nance, chief executive and president of Concerned Women for America, a conservative advocacy group. “Those 50 years of women’s achievements can now go to men pretending to be women.”
Separately Thursday, the Supreme Court addressed the issue of trans athletes for the first time, refusing to immediately reinstate a West Virginia law barring transgender athletes from playing on female sports teams from middle school through college. The law defines eligibility for certain sex-specific teams to “be based solely on the individual’s reproductive biology and genetics at birth.”
The court’s action was not a decision on the merits of the issue, but it means a transgender girl may remain on a middle school track team while battles over the law’s legality continue.
The proposed Biden administration rules would require that schools wishing to limit trans athletes’ participation show that the decision relates to an important educational objective and minimizes harm to others. They also must consider the sport involved, the age of the students and the level of competitiveness. The proposal noted that some teams require advanced skills and others allow anyone to participate.
“The proposed rule … 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 Education Department said in a fact sheet. It said the proposal would give schools “the flexibility to develop their own participation policies.”
The prohibition against blanket or categorical bans set up a clash with Republican-led states that have enacted sweeping prohibitions. Supporters of these measures say that allowing transgender girls and women to compete puts cisgender girls and women at a competitive disadvantage because their sex is male so therefore their bodies tend to be stronger and faster.
Just this week, legislators in Kansas overrode Democratic Gov. Laura Kelly’s veto to impose a ban on transgender athletes in kindergarten through college. Kansas was the 20th state to impose such a ban, according to tracking by the Movement Advancement Project, a think tank that supports transgender rights.
Rep. Susan Humphries, a Republican state legislator who helped pass the blanket ban in Kansas, said the Biden administration’s proposed regulations are based on what she sees as flawed logic — that Title IX’s prohibition on sex discrimination includes discrimination based on gender identity.
She said a blanket ban like the one passed in Kansas is far more effective in ensuring that women have a level playing field than the case-by-case approach envisioned by the Biden administration.
“It’s proactive,” she said of the state’s ban. “It doesn’t take many. It takes one swimmer or whoever to unseat state titles that have existed for a long time. … We want to protect our women here in Kansas.”
The Education Department said in a regulation proposed last summer that discrimination on the basis of gender identity is also barred under Title IX. That regulation is expected to be finalized next month.
Still, some trans rights advocates voiced caution over elements of the proposed rule released Thursday.
“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,” said Sasha Buchert, director of Lambda Legal’s Nonbinary and Transgender Rights Project.
Still, she added: “This proposed rule includes critical recognition of the importance of participating in sports for transgender youth and shows why 100 percent of the state bans are invalid.”
The issue has become politically hot across the country, driven by Republicans who oppose transgender rights, even though a small share of people identify as transgender and only a limited number of actual cases have raised concerns. Numerous court challenges already are pending, filed by people on both sides of the debate.
The Biden administration has moved deliberately on this issue. Last summer, the Education Department issued regulations making clear that under Title IX, schools also may not discriminate against students on the basis of gender identity. But the administration put off the question of sports participation amid concerns about the politics of the issue ahead of the 2022 midterm elections.
Polling shows a majority of Americans oppose allowing transgender women to compete in sports. A Washington Post-University of Maryland poll last year found 55 percent of Americans opposed allowing trans women and girls to compete with cisgender women and girls in high school sports, and 58 percent opposed it in college and professional sports. About 3 in 10 said they should be allowed to compete at each of these levels, while another 15 percent had no opinion.
Similarly, in May, Pew found 58 percent of adults saying they favor laws that require trans athletes to compete on teams that match the sex they were assigned at birth.
Other organizations have also struggled with whether and how transgender women can participate in competitive sports. Under an NCAA policy, participation in each college sport is determined by each sport’s governing body, subject to ongoing oversight.
States including Indiana, Idaho, Missouri, Nebraska, North Dakota, Kentucky and Wisconsin have had rules on the books that require trans athletes to undergo hormone treatment for a specified period — usually a year — to compete. Many of those policies have been since been superseded by state laws that ban trans athletes altogether, but others remain in effect.
Scott Clement, Robert Barnes and Rick Maese contributed to this report.