President Joe Biden is proposing a new interpretation of Title IX that would prohibit schools from “categorically” denying the ability of transgender athletes to compete against biological girls.
The new rule says that there has to be a weighing of fairness in competition and schools need to ensure that children are safe, but they cannot outright deny a male who is under the impression that he is a female from competing in female competition in K-12 and colleges across the country.
The Alaska State Board of Education has called for school districts to keep male and female competition separate in the traditional categories, since males have physical advantages over females in most athletic competitions. Already in Alaska, boys have begun to compete and win against girls in track in high school.
A related case has made its way to the Supreme Court to decide if males can compete in the female categories. That case moved on Thursday at the same time the Biden Administration made its Title IX announcement. The court said a transgender runner in West Virginia could continue to compete while his case was being heard by the court.
Title IX was signed into law in 1972, after well-documented support by Alaska Sen. Ted Stevens. It has advanced educational opportunities for girls and women since then by prohibiting schools that receive federal funding from favoring the funding of male athletics programs at the expense of female athletics.
Today, the U.S. Department of Education said its new interpretation will dictate how coaches must treat transgenders.
The new rule will be published in the Federal Register and go through a 30-day public comment period before it is final.
“Participation in school athletics is an important component of education and provides valuable physical, social, academic, and mental health benefits to students. The proposed rule affirms that students benefit from the chance to join a school sports team to learn about teamwork, leadership, and physical fitness. 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. The proposed rule also 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 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,” the U.S. Department of Education wrote in its explanation.
“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,” said U.S. Secretary of Education Miguel Cardona. “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.”
“Under the proposed regulation, schools would not be permitted to adopt or apply a one-size-fits-all policy that categorically bans transgender students from participating on teams consistent with their gender identity,” the Biden Administration said. The decisions about which team a boy would play on must consider fairness and preventing injury, a description that is almost sure to bring a multitude of lawsuits against school districts.
“Instead, the Department’s approach would allow schools flexibility to develop team eligibility criteria that serve important educational objectives, such as ensuring fairness in competition or preventing sports-related injury. These criteria would have to account for the sport, level of competition, and grade or education level to which they apply. These criteria could not be premised on disapproval of transgender students or a desire to harm a particular student. “The criteria also would have to minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”
The new rule goes on to say, “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. Such 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.”
Taking those considerations into account, the Department said that, under its proposed regulation, elementary school students would generally be able to participate on school sports teams consistent with their gender identity and that it would be particularly difficult for a school to justify excluding students immediately following elementary school from participating consistent with their gender identity.
For older students, especially at the high school and college level, the Department expects that sex-related criteria that limit participation of some transgender students may be permitted, in some cases, when they enable the school to achieve an important educational objective, such as fairness in competition, and meet the proposed regulation’s other requirements.
Schools would have to take into account the following considerations when developing a policy for participation:
“Students in different grades and education levels have different levels of athletic skill, and schools offer sports teams for different reasons depending on students’ grade or education level. For example, teams for younger students often focus on building teamwork, fitness, and basic skills for students who are just learning about the sport, while a collegiate team may be primarily focused on competitive success. That’s one reason why the Department expects that, under its proposed regulation, elementary school students would generally be able to participate on school sports teams consistent with their gender identity where considerations may be different for competitive high school and college teams,” the department wrote.
Especially for students in earlier grades, including for example those in elementary school, school athletic teams “focus on introducing students to new activities and prioritize team sports as an opportunity for students to learn basic skills in physical fitness, leadership, and teamwork,” the government said.
“School teams vary widely across the United States, with some that are very competitive, especially for high school and college students with advanced skills, and others, such as “no cut” teams, that allow all students to join and participate. Some schools also offer teams at lower levels of competition, such as intramural or junior varsity teams, that allow all or most interested students to participate. Sex-related eligibility criteria that restrict students from participating consistent with their gender identity would have to reflect these differences in competition,” the Biden Administration said.
The proposed regulation’s text:
The proposed regulation would be in the Title IX regulations at section 106.41(b)(2):
If a recipient adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.
