Biden proposal would limit bans targeting transgender, nonbinary athletes

The administration’s proposed rule for Title IX antidiscrimination laws would prevent states from ‘categorically’ banning trans student athletes

Schools and universities across the US would be prohibited from outright banning transgender students from participating in school sports that align with their gender under a proposed rule to federal discrimination law from President Joe Biden’s administration.

A 116-page proposed rule from the US Department of Education to landmark sex discrimination law under Title IX of the Education Amendments of 1972 could deal a significant blow to Republican-led legislative campaigns preventing trans women and girls from participating in school sports in at least 20 states.

But the proposal would leave room for schools to implement rules determining eligibility criteria that could include some restrictions against trans athletes, noting “fairness in competition” and “competitive high school and college athletic environments” where “some schools may adopt policies that limit transgender students’ participation.”

In a statement announcing the proposal, which must undergo a lengthy review process and will almost certainly be hit with legal challenges, the Education Department said the agency “heard repeatedly that many schools, students, parents, and coaches face uncertainty about when and how transgender students can participate in school sports, particularly because some states have chosen to adopt new laws and policies on athletics participation that target transgender students.”

“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination,” US Secretary of Education Miguel Cardona said in a statement on 6 April.

The proposal arrived the same day that the US Supreme Court refused to back West Virginia’s attempts to kick a transgender 12-year-old girl from her track team while the state faces a legal challenge against its sports ban, among more than a dozen similar laws in effect preventing trans student-athletes from joining elementary, high school, and, in some cases, collegiate sports.

Under the Education Department’s rule, no school that receives federal funding would be allowed to impose an outright ban against trans students, which would be considered a violation of Title IX.

But rather than draft a blanket ban on state-level laws, the proposal appears to run contrary to the administration’s own agenda, including an executive order signed by President Biden that expands federal antidiscrimination protections to trans people, by imposing some limitations.

“This proposed rule includes critical recognition of the importance of participating in sports for transgender youth and shows why 100 per cent of the state bans are invalid,” according to Sasha Buchert, senior attorney and director of the Nonbinary and Transgender Rights Project at Lambda Legal, among the LGBT+ civil rights groups that have launched legal challenges to state-level bans.

“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,” she added. “These students must have full and equal chances to participate because participation in athletics provides many long-term benefits for young people, including important health benefits, and chances to develop leadership skills, discipline, and self-confidence.”

Kasey Suffredini, vice president of advocacy and government affairs at The Trevor Project, said that the proposed rule “makes it clear that the 20 state laws categorically prohibiting transgender young people from participating in school sports violate federal law.”

The rhetoric and debates surrounding legislation targeting LGBT+ youth has taken on the mental health of an overwhelming majority of young trans and nonbinary people, according to recent polling from The Trevor Project and Morning Consult.

A separate survey from The Trevor Project found that 45 per cent of trans and nonbinary youth have seriously considered attempting suicide over the last year.

“Being told that you cannot participate in an activity, or even enter a space because of who you are can be incredibly damaging to a young person’s mental health and sense of self,” Mr Suffredini added. “We must reject blanket bans and afford trans young people the same opportunities as their peers to lead happy, healthy, and full lives.”