Last month, the Biden administration proposed a new set of Title IX rules that would expand protections for transgender students in college. However, it remains unclear how the department will approach transgender student participation in athletics. The department will conduct a separate rulemaking process that is expected to focus heavily on transgender student participation in sports.
Laws on the participation of transgender students in sports are rapidly changing across the country as political divisions over the issue deepen. So far, 20 states have passed legislation prohibiting transgender students from participating in sports that match their gender identity. The laws, however, generally focus on students in K-12 schools and do not apply to colleges.
The new proposal released last week on Title IX of the Education Amendments of 1972 – the law that prohibits discrimination on the basis of sex in all federally funded schools and colleges – would explicitly prohibit discrimination and harassment against students because of gender identity and sexual orientation. The separate athletics rule-making process, focused on transgender athletes, is the first to be released in the Department for Education’s history.
“Some states are passing laws targeting LGBTQ students. Championing equal access and inclusion is more important than ever,” Education Secretary Miguel Cardona said during a briefing on the proposal. “The department recognizes that the standards for students competing on men’s and women’s track and field teams change in real time, so we’ve decided to establish a separate rule on how schools can determine eligibility while adhering to the guarantee. Non-Discrimination Act of Title IX.”
Advocates and critics of transgender athletes are upset that the ministry is releasing a separate set of rules regarding transgender athletes. Proponents would prefer the administration expand blanket protections for transgender athletes through Title IX rather than expansive regulations, while critics argue that protections for transgender athletes should be removed.
“[President Biden] put aside the issue of athletics, which I find inappropriate – it throws trans girls and women under the bus for political reasons,” said Travers, a sociology professor at Simon Fraser University in Canada who does not only use one name.
Transgender athletes and college sports
Transgender athletes make up a tiny population of athletes across the country, let alone participate in college sports. Apparently, there are only 32 trans athletes who have competed openly in varsity sports. Like transgender students in general, trans athletes have reported facing a disproportionate level of bullying and harassment compared to their cisgender peers, which would be prohibited under the new Title IX proposal.
The success of transgender swimmer Lia Thomas at the University of Pennsylvania has sparked much of the debate about trans athletes having an advantage over cisgender athletes competing in the same sport.
The new proposal would expand protections against harassment and discrimination based on sex to include gender identity. Since Biden took office, his administration has rolled back many Trump-era policies that interpreted gender as biological sex assigned at birth.
Although the Department of Education’s Office of Civil Rights issued an interpretive notice in 2021 based on the Supreme Court’s decision in Bostock v. Clayton County, which said students cannot not be discriminated against because of their sexual orientation or gender identity, many advocates argued that codifying these protections in Title IX regulations would give them more teeth.
The National Collegiate Athletic Association, which regulates many college athletic programs across the country, released a new set of guidelines on transgender student participation in January that borrow many rules from the U.S. Olympic and Paralympic committees. The organization adopted its first set of guidelines regarding the participation of transgender students in sports in 2011, a time when virtually no colleges had adopted policies on the matter.
Under the new guidelines, which will be fully implemented by August 2023, transgender athletes at NCAA member colleges will be required to regularly report their testosterone levels and provide additional documentation certifying that they meet specific standards based on gender. sport in which they participate.
“It is important that NCAA member schools, conferences and varsity athletes compete in an inclusive, fair, safe and respectful environment and can move forward with a clear understanding of the new policy,” said John DeGioia. , Chairman of the NCAA Board of Governors. and the president of Georgetown University, in a statement on the guidelines.
Opposition to transgender student participation in sports
Critics of protections for transgender athletes have come from anti-LGBTQ groups, conservative and religious organizations, some women in sport, and people who argue that the involvement of transgender students threatens women’s equality in sport. . “We were very disappointed to see the Biden administration release this proposal,” said Matt Sharp, senior counsel and national director of state government relations at the Defending Freedom Alliance.
Those who oppose trans athletes playing on teams that match their gender identity argue that these players, especially on women’s teams, have an unfair biological advantage and deprive cisgender female athletes of opportunities.
“By radically rewriting federal law, the Biden administration threatens the advances women have long fought for in education and athletics. In addition to denying women equal and fair conditions in sport,” Christiana Keifer, senior counsel at the Alliance Defending Freedom, said in a statement.
Research, however, has proven that these results have little scientific evidence.
“The Biden administration has clearly stated that it is committed to advancing the protection of transgender athletes, however, its specific proposal to address this issue will not be revealed until the start of the separate rulemaking process. What we’ve seen in recent years is a real hyperfocus on testosterone as an indicator of athletic performance. Every study of testosterone, every study of trans athletes, makes it very clear that testosterone is not the same as athletic ability. When it comes to writing policies that focus so heavily and focus so heavily on testosterone, the reality is that most of those policies are misinformed,” said Anna Baeth, Research Director at Athlete Ally, an organization that champions LGBTQ athletes.
The public view that transgender female athletes have a biological advantage, some advocates say, has created a public opinion of transgender athletes that does not reflect reality.
“It’s never about facts. We don’t see this sector of trans girls and women winning everything in women’s and women’s sports,” Travers said. “When you stir up a moral panic, you create the impression that this terrible thing is happening when the facts don’t back it up.”
The proposed new Title IX is expected to face numerous legal challenges from conservative states, especially those that have moved to ban transgender athletes from participating in sports.
The Biden administration has clearly stated that it is committed to advancing the protection of transgender athletes, however, a specific proposal to address this issue will not be revealed until the separate rulemaking process begins.
The department has yet to reveal when the separate rulemaking process on Title IX and its applications to athletics will begin.
“We anticipated that the notice of proposed rulemaking would robustly address athletics. And instead, what the administration informed people that they were planning to do was do a separate notice of proposed athletics regulations,” said Sara Warbelow, legal director of Human Rights. Campaign, which supports LGBTQ rights. “We don’t know much about what the administration thinks. We know they have spoken out criticizing blanket bans on transgender girls and women from participating in school-based athletics. But we don’t know what restrictions or limitations they might be thinking of for the purposes of this proposed alternative regulation.
In the proposed Title IX guidelines, the department cited a court case – BPJ v. West Virginia – which found that West Virginia’s ban on the participation of transgender female athletes in sports violated both Title IX and the Equal Protection Clause, which defenders said appeared to allude to the department’s position against bans on transgender student participation in sports.
Supporters hope the administration will clarify what spaces transgender students have access to, including sports fields, restrooms and locker rooms, in the final Title IX proposal. Including these protections would prevent state legislators from passing legislation barring transgender students from accessing these spaces at all federally funded colleges.