Education Department officials walked a
tightrope in crafting the Biden administration’s new Title IX regulations,
leaving wiggle room for school and college administrators to limit the
participation of transgender students from playing on sports teams that match
their gender identity while also barred outright bans against the practice.
Schools and colleges would not be permitted
to prohibit transgender athletes – a major blow to the slate of
Republican-controlled states that have passed laws over the last two years
doing just that – but could prevent participation on a case-by-case basis,
including in highly competitive settings like high school or college athletics.
“Every student should be able to have the
full experience of attending school in America, including participating in
athletics, free from discrimination,” Education Secretary Miguel Cardona said
in a statement. “Being on a sports team is an important part of the school
experience for students of all ages.”
“Beyond all the benefits to physical and
mental health, playing on a team teaches students how to work hard, get along
with others, believe in themselves, and build healthy habits that last a
lifetime,” he said. “Today’s proposed rule is designed to support Title IX’s
protection for equal athletics opportunity.”
The proposed regulation is just one
sentence long:
“If a recipient adopts or applies
sex-related criteria that would limit or deny a student’s eligibility to
participate on a male or female team consistent with their gender identity,
such criteria must, for each sport, level of competition, and grade or
education level: (i) be substantially related to the achievement of an
important educational objective, and (ii) minimize harms to students whose
opportunity to participate on a male or female team consistent with their
gender identity would be limited or denied.”
In breaking the changes down for reporters
on Thursday, a senior department official said that policies would violate
Title IX if they categorically ban transgender students from participating on
sports teams consistent with their gender identity, and would not be permitted
to adopt or apply such one-size-fits-all policies.
But in heeding concerns from stakeholders
about how some transgender students’ participation may give teams unfair
advantages, the proposed rule also recognizes that in some instances –
particularly in competitive high school and college athletic environments –
schools may adopt policies that limit the participation of transgender
students.
Moreover, a senior department official
said, the proposed rule would provide schools with a framework for developing
eligibility criteria that protects students from being denied equal athletic
opportunity, while giving schools the flexibility to develop their own participation
policies.
Some of the flexibility includes criteria
such as ensuring fairness in competition, grade level or preventing
sports-related injuries, and would be sport-specific and specific to the level
of competition.
It remains unclear, however, exactly how
the regulation, if adopted as is, would play out in the real world.
