The Biden administration on April 6 released long-awaited draft rules regarding the participation of transgender athletes in school sports, taking its first official stand on a matter that has become a contentious public debate. The rule would have broad implications for the ability of athletes from elementary school T-ball to the N.C.A.A. level to play.
And it is far from the last word on the matter given the limits of the U.S. government in global sports.
What was the Biden administration’s move?
The U.S. Department of Education proposed a new rule that would allow schools to reject transgender athletes from competing on sports teams that align with their gender identity, when questions of physicality and fairness arise. The rule would prohibit schools from issuing blanket bans on transgender athletes in school sports, making such a policy a violation of Title IX.
Elementary school students would generally be able to participate on teams matching their identity. But as students get older and go through puberty, and as competition increases, schools and athletic organizations would make a multipronged assessment of whether or not to restrict transgender athletes from playing on their preferred team. The age of the students, the level of the fairness and the nature of the sport would be among the considerations.
The judgment may be different, for example, in wrestling than in badminton.
The administration argues the proposed rule would provide schools a framework that both protects students “from being denied equal athletic opportunity” and gives schools “flexibility” to develop their own policies.
The rule would not apply to professional leagues or other elite competitions, like the Olympics. It would only be for sports sponsored by schools that receive U.S. federal funding.
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What is Title IX?
On June 23, 1972, President Richard M. Nixon signed an omnibus education bill that included a statute guaranteeing a means to ensure equal access to education for women.
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
Title IX prohibits sex discrimination at educational institutions that receive federal funding in primary, secondary and higher education. The most visible changes were seen in sports, thanks in part to the adoption of an intercollegiate athletics policy in 1979 that entitled women to the same athletic opportunities as their male counterparts.
The Supreme Court and Department of Education have also determined that Title IX’s purview includes sexual assault and harassment on school campuses.
How does Title IX apply to transgender athletes?
Title IX does not directly address race, gender identity, disabilities or other characteristics besides sex. But because Title IX falls under the executive branch, it is subject to interpretation by each administration and that interpretation frequently changes.
Last year, the Biden administration proposed new rules, which are expected to be finalized in May, that would extend Title IX protections to transgender students by expanding the definition of “sex” to include “stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
The rule announced this week would take that rule one step further and create a separate framework for transgender athlete participation for all schools that receive federal funding.
What has been the immediate reaction to the proposal?
Some Democrats and L.G.B.T.Q. activists worried the Biden administration proposal would introduce new levels of discrimination against transgender athletes and gender policing for all female-identifying athletes.
Republicans and some athletes who have argued against the inclusion of transgender women in women’s sporting divisions worried that the new rule would undermine the purpose of Title IX.
Still others, including GLBTQ Legal Advocates & Defenders and some scholars, saw the approach as step in the right direction by creating a framework for schools to refer to.
What are the rules for college athletes, and how would this apply to them?
The N.C.A.A. decided last year to set its rules sport by sport and essentially follow guidelines set by major national and world governing bodies for each sport. That means transgender college athletes are now required to undergo testosterone testing to compete in women’s divisions, a move intended to put the N.C.A.A. in line with the U.S. organizations that set standards for acceptable testosterone levels in their sports.
Previously, the N.C.A.A. required only that transgender women be on testosterone-suppressing treatment for one calendar year before competing in women’s athletics.
Some states have strong restrictions on transgender athletes. How would this change affect those laws?
At least 20 states, including Kansas, have laws that bar transgender students from participating in sports corresponding with how they identify. Those laws would remain largely intact for now. The process of issuing new federal guidelines can be lengthy and bureaucratic. A public comment period on the rule proposal will be open for 30 days, with comments accepted online, after which the Education Department will weigh the merits of the comments and amend the language as it sees fit.
A new host of legal battles will likely ensue once the rule is final and more states will likely find ways to work around the rule’s language that prohibits blanket exclusions. And a new administration with different ideologies could reverse the rule, starting the process all over again.
The Supreme Court has not weighed in on the matter — yet. The court said in a temporary order that a transgender girl may compete on the girl’s track team at a West Virginia middle school while her challenge to a state ban moves forward.
The court’s brief order did not give a reason, which is not unusual for emergency applications. However, in a dissenting opinion, two of the court’s conservative justices indicated that states are entitled to enact such restrictions. The temporary order came on the same day as the proposed Title IX rule changes from the Biden administration.
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