Education Department Issues Regulations on Transgender Sports Competition
A sensible compromise on a controversial issue.
WaPo (“Biden administration says schools may bar trans athletes from competitive teams“):
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.”
NYT (“Biden Plan Allows Limits on Trans Athletes’ Participation in School Sports“):
The Biden administration proposed a rule change on Thursday that would allow schools to block some transgender athletes from competing on sports teams that match their gender identities. But the proposal would also prevent schools from enacting across-the-board bans.
Under the Department of Education proposal, “categorically” barring transgender athletes in that way would be a violation of Title IX, which prohibits sex discrimination at educational institutions that receive federal funding.
But it would give universities and K-12 schools the discretion to limit the participation of transgender students, if they conclude that including transgender athletes could undermine competitive fairness or potentially lead to sports-related injuries, a key part of the debate about transgender athletes in women’s sports.
It is the first time that the administration has substantively weighed in on the highly charged debate. The Department of Education said the proposal was meant to “advance Title IX’s longstanding goal of ensuring equal opportunity in athletics” and to offer “much needed clarity” about how public schools, as well as colleges and universities, should navigate a contentious issue.
It is certainly not going to close the door on disagreements.
Elementary school students would generally be able to participate in school sports according to their gender identity, under the proposal. But at more competitive levels, including high school and college sports, questions of physicality and fairness could prompt restrictions on transgender athletes.
The Education Department advised that schools would have to assess the ages of students and the level of the competition, as well as the nature of the sport itself. The impact may be different, for example, in track versus badminton.
ESPN (“No wholesale ban of transgender athletes, U.S. Department of Education proposes“):
Under proposed federal regulations issued Thursday, schools are not allowed to adopt wholesale bans on transgender athletes that keep them from participating on teams that align with their gender identity.
Instead, the U.S. Department of Education has given schools flexibility to adopt policies based on grade, sport, and level of competition in order to give opportunities to transgender students while recognizing the need to ensure fairness and prevent sports-related injuries.
“One-size-fits-all policies that categorically ban transgender students from participating in athletics consistent with their gender identity across all sports, age groups, and levels of competition would not satisfy the proposed regulation,” according to a release issued by the department Thursday.
The U.S. Department of Education’s ruling comes just a day after Kansas became the 20th state to impose restrictions on transgender athletes. Like the laws in many other Republican-led states, Kansas’s ban preventing transgender girls from competing on women’s teams came amid other legislation and proposed laws curtailing the rights of transgender individuals.
W. Scott Lewis, managing partner with TNG Consulting and a member of the advisory board of the Association of Title IX Administrators, said in an email Thursday that the U.S. Department of Education’s rule — if it becomes final — would supersede any state law, as it is a federal regulation. But he said that the rule would likely be challenged in court.
During a call with reporters Thursday, a senior department official said in response to a question about state bans that the “the federal civil rights law is the law of the land” and the department expects all schools to comply. If the department is made aware of schools possibly violating the law, it will investigate. If it determines there is a violation, and the school declines to come into compliance, the official said, it can withhold federal funds to “ensure that no federal dollars are spent to discriminate against students in school.”
The department’s release notes that across-the-board bans “fail to account for differences among students across grade and education levels. They also fail to account for different levels of competition — including no-cut teams that let all students participate — and different types of sports.”
As to the legal validity of the regulation, Title IX has been the law of the land for more than a half century and there’s no indication at all that the current Supreme Court is inclined to overturn it or narrow its scope. Indeed, less than three years ago a 6-3 majority led by Neil Gorsuch ruled that Title VII of the Civil Rights Act of 1964 barred discrimination against gays and transgender individuals. Even if we assume Amy Coney Barrett would have joined the dissent, switching the vote of the late Ruth Bader Ginsburg, that’s still 5-4.
As to the public policy, this strikes me as a nuanced, thoughtful response to a situation that’s currently being handled emotionally, and thoughtlessly. There are sound competitive and educational reasons to keep late-transitioning transwomen off of certain women’s sports teams at the collegiate and high school levels to preserve the sanctity of competition and allow women and girls a fair opportunity to participate. But a blanket ban on all sports at all levels—and one that includes transmen, who no one thinks have a competitive advantage over men—is both absurd and needlessly cruel.
Reading the news reports on the regulations this morning, the fact that the partisans on transgender individuals participating in sports aren’t happy, indicates that this is a compromise that most will accept.
My trans friends are not happy, but in effect this was a tactical retreat to a more tenable position. This was never going to be a victory, it was always going to be some version of a retreat. This is the less bloody version.
I am not especially happy about it.
And, it is a pragmatic approach that will probably work well for most Americans. I think it’s probably valuable in that it recognizes the condition of being trans, as a child, as legitimate. It isn’t fake, it isn’t child abuse, it’s a thing that happens sometimes, and how to cope with it is not just on the shoulders of the trans child and their parents.
I expect the anti-trans activists to not be super satisfied with this and to keep banging their heads on it, because they deny the legitimacy of the phenomenon entirely. That makes it an engine for change, and a battlefield that can be defended.
There’s a lot of wiggle room there which basically means each trans kid (and their parents) will have to fight. I hope the actual guidelines are a bit more firm, with examples.
It would also be nice to put in a ban on genital inspections, because Kansas is disgusting.
As to the overall goal of splitting hairs on when it is ok to discriminate based on a perceived advantage… it sounds not terrible, but I also don’t understand the passion for sports in general, so *shrug*.
I do look forward to the lawsuit that argues the Podunk High basketball team isn’t really competitive as they are a bunch of weak losers.
Possible outcomes from good to bad:
1. The blanket bans are overturned and most trans kids who want to participate in sports can, particularly as people see having trans kids competing doesn’t ruing sports and the idea becomes more normalized.
2. Nothing changes from the status quo, all that happens is the blanket bans are just replaced with rubber stamp bans on each individual trans kid.
3. As above, accept it also turns into a two tier system where wealthy our well connected families can get their trans kids into sports, but poor or minority trans kids are excluded (I suspect this is the most likely outcome)
4. Trans bans become even more common as this ruling creates a roadmap for how to ban trans kids administratively without having to pass a law.
5. This ends up weakening Bostock v. Clayton County. Even though it is title IX instead of title VII, the laws use similar language, so if the “safety, fairness, competitiveness” criteria satisfies title IX, it would presumably satisfy title VII too. Trans people end up with “civil rights lite” where they’re supposedly protected from discrimination, but not really.