Earlier this month the U.S. Department of Education proposed a new rule that would forbid blanket bans on transgender athlete participation in school sports. The proposed rule would apply to public K-12 schools, as well as colleges, universities, and other institutions that receive federal funding.[2] The proposed rule would build upon the longstanding Title IX rules that protect equal athletic opportunities for women and girls.
Since 1972, Title IX and other federal regulations have required that schools provide equal athletic opportunities for students regardless of sex.[3] Title IX’s nondiscrimination requirement has helped ensure that students are able to participate in school athletics and enjoy the physical, social, and mental health benefits that come along with such participation. According to the proposed policy, schools would not be permitted to adopt a one-size-fits all policy that categorically bans transgender students from participating on teams consistent with their gender identity.[4] Schools must also allow transgender students to participate in sports teams that match their gender identity, regardless of the gender listed on their birth certificate.
The proposed policy is aimed at providing greater protections for transgender students and ensuring that they have equal access to educational opportunities, including athletics.[5] The policy would allow schools to consider grade or education level, the particular sport, and the level of competition in introducing rules on whether a student can play with groups or teams that fit with their gender identity.[6] One-size-fits-all policies that are in place in over 20 states 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.[7] However, this policy would still leave room for schools to develop policies that prohibit the participation of trans athletes from playing on more competitive teams or in certain sports if those policies are designed and intended to ensure fairness or prevent sports-related injuries.[8]
While the proposal has aimed to take a relatively “middle of the road” approach, reaction to it has been mixed and it has been met with a great deal of both support and opposition. Supporters argue that it is a necessary step to promote equality and inclusivity, while opponents argue that it could create an unfair advantage for transgender athletes and potentially harm the competitiveness and fairness of women’s sports. The policy on a whole is aligned with the Biden administration’s commitment to protecting the rights of LGBTQ+ individuals. Sean Ebony Coleman, an LGBTQ+ activist, stated that “While it hypothetically prevents across-the-board bans, it offers enough gray area for discrete gender policing and demonization to occur, specifically on a local level.”[9] In response to the proposed policy, a Republican representative from Tennessee said that “Biological males ought to compete against biological males, and biological females ought to compete against biological females.”[10]
Just this past week a bill was approved by Republican lawmakers that would prohibit athletes who have transitioned from male to female from competing in women’s sports, however, it is very unlikely that it will pass the Senate or be signed by the President.
The issue of transgender athletics has become a charged topic across not only the United States, but the global sports scene as well, as last month transgender women were banned from competing in Olympic track competitions by the World Athletics Council.[11] The American public will have a brief 30 days to comment on the proposed policy before the Department of Education considers whether any changes are needed and issues a final rule.
[1] Photograph: https://frontofficesports.com/u-s-department-of-education-releases-policy-on-transgender-athletes/
[2] https://www.ed.gov/news/press-releases/fact-sheet-us-department-educations-proposed-change-its-title-ix-regulations-students-eligibility-athletic-teams
[3] Id.
[4] Id.
[5] Id.
[6] https://frontofficesports.com/u-s-department-of-education-releases-policy-on-transgender-athletes/
[7] https://apnews.com/article/trans-athletes-biden-title-ix-28c6c78e9cd60a4c334de15bfdd624fe
[8] Id.
[9] https://apnews.com/article/trans-athletes-biden-title-ix-28c6c78e9cd60a4c334de15bfdd624fe
[10] https://www.nytimes.com/2023/04/20/us/politics/transgender-athlete-ban-bill.html
[11] https://frontofficesports.com/u-s-department-of-education-releases-policy-on-transgender-athletes/
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