WASHINGTON (AP) — Schools and colleges across the U.S. are barred from outright banning transgender athletes under a proposal released Thursday by the Biden administration, but teams can some limitations in some cases – for example, to ensure fairness.
The proposed rule sent a political backlash in a wave of Republican-led states seeking to ban trans athletes from competing in school sports that align with their gender identities. If finalized, the proposal would be enshrined as a Title IX provisionthe important gender-equity law enacted in 1972.
It must go through a lengthy approval process, however, and it will almost certainly face challenges. While opponents have heavily criticized the proposal, some advocates for transgender athletes are concerned that it doesn’t do enough.
The proposal comes on the same day that the Supreme Court said that a 12-year-old transgender girl of West Virginia can continue to compete on its middle school track and cross-country teams as legal battles over the state’s transgender law continue. The law bars transgender athletes from women’s teams.
All told, at least 16 states now have bans in effect covering at least high school interscholastic sports. Some also extend to intramural, club or college sports. Implementation of bans in at least three other states has been blocked by courts, and another has adopted a ban that won’t take effect until July.
Under the Education Department’s proposed rule, no school or college that receives federal funds would be allowed to impose a “one-size-fits-all” policy that prohibits trans students from playing on sports teams that consistent with their gender identity. Such policies would be considered a violation of Title IX.
However, the proposal leaves room for schools to create team eligibility rules that could ultimately result in restrictions on the participation of trans athletes.
That’s allowed only if it serves “important educational purposes,” such as fair competition and reducing the risks of injury.
Any limit should take into account the game, the level of competition and the age of the students. Elementary school students are generally allowed to join any teams that align with their gender identity, for example. More competitive high school and college teams may increase the limits, but that discourages teams without tryouts or cuts.
“Every student should have the full American school experience, including participation in athletics, without discrimination,” said Miguel Cardona, Biden’s education secretary, in a statement.
The Biden administration has used “fair competition” as the criteria, which has become part of the debate in the US and around the world. But officials did not provide details on how this could be done.
Of the tens of millions of high school students in the US., about 300,000 young people between the ages of 13 and 17 identify as transgender, according to a 2022 study from the Williams Institute, a UCLA think tank focused on LGBTQ+ issues. The number of athletes within that group is smaller; a 2017 survey by the Human Rights Campaign suggests that less than 15% of all transgender youth play sports.
Asked about the proposal, Bobbie Hirsch, a transgender man and sophomore on the Wayne State men’s fencing team, said “anything helps.” But he fears the rule’s language will make it easier for schools to tell transgender athletes they can’t play on a team. “That’s the direction things are going,” he said in a telephone interview.
Hirsch competed on the women’s team in the 2021-22 season, and began transitioning to high school social and medical last summer.
Eli Bundy, an 18-year-old transgender resident of Charleston, South Carolina, said they accepted the proposal but stopped celebrating.
“I find it hard to feel comfort when positive things happen at the national level, because there are so many at the state level from the South Carolina Legislature that are hostile and send a harmful message to trans youth. ,” said Bundy, who testified in 2021 against the state’s ban on transgender student participation. in women’s or girls’ sports in public schools and colleges.
Asked about the state’s restrictions now in place, a senior Department of Education official who spoke to reporters on condition of anonymity said Title IX is the law of the land and officials will work to ensure it is in place. followed by all states.
In the West Virginia case, the Supreme Court refused to overturn an appeals court order that made it possible for the girl, Becky Pepper-Jackson, to continue playing on her school’s teams. The state’s law on transgender athletes defines male and female by looking at the student’s “reproductive biology and genetics” at birth. This applies to middle and high schools, as well as colleges.
Elsewhere, Republican lawmakers insist they have the right to set policies in their states. The Biden administration’s announcement came a day after Kansas lawmakers succeeded in overriding a third veto by Democratic Gov. Laura Kelly on the three-year bill banning transgender female athletes from women’s and girls’ sports.
“At what point does the federal government not understand the US Constitution that says we have states’ rights?” said the Republican state Rep. Brenda Landwehr, of Wichita. “We can make decisions on our own.”
Critics argue that transgender athletes have an advantage outperform cisgender women in the competition. Last year, Lia Thomas became the first transgender woman to win an NCAA swimming title. The governing body of college sports, however, adopted a sport-by-sport approach to transgender athletes in January 2002, although the NCAA board recently decided not to fully implement it. until 2023-24.
The NCAA released a statement Thursday night saying: “The NCAA’s current transgender student-athlete participation policy is consistent with the Olympic movement and balances fairness, inclusion and safety for all student-athletes. That that policy remains in place while the lengthy Title IX regulatory process plays out.
At the same time, the sport’s international governing bodies instituted policies that effectively barred most trans women from the track field and swimming events.
Donna de Varona, a two-time Olympic gold medalist in swimming and a member of the Women’s Sports Policy Working Group, said her hope is to find a “nuanced approach” to finding space for transgender people. athletes while allowing Title IX to protect women. and women have “equality, opportunity and safety.”
“There is a lot of room. … Why is it in the women’s category? We’ve had our reproductive rights compromised and now we have another spectrum of sports,” de Varona said in a phone interview.
Sasha Buchert, Lambda Legal senior attorney and director of the group’s Nonbinary and Transgender Rights Project, said the proposed rule provides “critical recognition of the importance of sports participation for transgender youth on.” At the same time, he expressed concern about whether it would eliminate discrimination against transgender students.
But a lawyer for cisgender runners criticized the proposal as “a slap in the face to female athletes who deserve the same opportunity to compete in their sports.”
“The Biden administration’s rewrite of Title IX demeans women and tells them that their athletic goals and placement don’t matter,” said Christiana Kiefer, senior counsel for the Alliance Defending Freedom. He represented Connecticut runners suing the participation of two transgender women in track and field events.
President Joe Biden’s administration has made strengthening the rights of trans students a priority. Last year it proposed a separate federal rule that would for the first time extend Title IX rights to LGBTQ+ studentswidely protects them from discrimination in education.
That rule — which drew more than 240,000 comments from the public and sharp opposition from conservatives — is expected to be finalized as soon as next month.
The new proposal does not offer examples of acceptable limits that could be placed on school sports, but it does make it clear that the restrictions cannot be aimed at trans students. Schools will be left to navigate tricky legal terrain, knowing that any violation could lead to a federal civil rights investigation or lawsuits.
Schools that choose to impose limits should “minimize the harm” of students losing athletics opportunities, the proposal says. If a school achieves goals such as equity in ways that are less harmful, then the school may be considered in violation of Title IX.
“Preventing students from participating in a sports team that aligns with their gender identity can stigmatize and isolate them,” according to background information provided by the administration. “It’s different from the experience of a student not being selected for a team based on their skills.”
Schools that violate Title IX can face penalties up to the complete loss of federal funding, even if no school has incurred such a penalty.
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AP Sports Writers Eric Olson in Omaha, Nebraska, and John Zenor in Birmingham, Alabama, and AP writers Pat Eaton-Robb in Hartford, Connecticut, James Pollard in Columbia, South Carolina, and John Hanna in Topeka, Kansas, contributed to this report.
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