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The Biden Administration proposed new regulations Thursday aimed at curbing blanket bans keeping transgender athletes from participating in school sports, but it included a significant loophole letting school teams develop their own policies in what the Education Department billed as a compromise position on the increasingly volatile culture war issue.
The new rule would add language to Title IX—a law prohibiting gender-based discrimination in school activities—stating individual teams at public schools and universities can ban athletes from competing on teams outside of their sex assigned at birth if factors like competitive fairness come into question.
However, the proposed rule would not allow schools to impose a “one-size-fits-all policy that categorically bans transgender students from participating on teams consistent with their gender identity”—after more than a dozen states passed sweeping laws restricting transgender school athletes.
The proposed policy appears to leave it solely at teams’ discretion to determine policies on transgender participation, but the Education Department said they should take into account “level of competition, and grade or education level” when coming up with rules.
The Education Department said, ideally, transgender restrictions should only be used for highly competitive sports at the high school or college levels, since elementary and middle school sports are generally more focused on “basic skills in physical fitness, leadership, and teamwork.”
“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,” the Education Department said in a fact sheet.
What We Don’t Know
It remains unclear when the new guidelines might be enacted or whether there will be any legal challenges.
Concerns about transgender athletes—specifically trans women who were assigned male at birth—having an unfair advantage in school sports have significantly intensified in recent years. A major catalyst was University of Pennsylvania swimmer Lia Thomas’ record-shattering victories during the 2021-22 NCAA season, despite Thomas—initially recruited as a swimmer for the men’s team—following the NCAA’s hormone therapy guidelines after coming out as trans in 2019. The NCAA responded last year by creating stricter hormone therapy requirements. The issue all the while has become one of the nation’s most polarizing culture war debates, with Republican-controlled state legislatures rushing over the past few years to enact broad bans, a gambit LGBTQ rights groups have argued is unfairly exclusionary to transgender students and often unnecessary. Top GOP figures like former President Donald Trump and Florida Gov. Ron DeSantis have become some of the most vocal critics of trans women competing in sports—a concept DeSantis called an effort “to destroy women’s athletics” and Trump has labeled “ridiculous.”
At least 16. That’s how many states have enacted transgender athlete bans at the high school level or beyond, according to the Associated Press.
The Supreme Court on Thursday rejected a request from West Virginia to prohibit a 12-year-old transgender girl from competing on her school’s track team—the first ruling the nation’s highest court has made on a transgender athlete issue.
‘We Transition To Be Happy’: Lia Thomas Pushes Back Against Detractors Of Transgender Athletes (Forbes)
Supreme Court Rejects West Virginia’s Emergency Request to Ban Transgender Girl From Girls’ Track Team (Wall Street Journal)