Limited trans athlete bans would be OK under Biden policy

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The Biden administration on Thursday proposed new regulations that would allow schools to bar transgender athletes from participating in competitive high school and college sports, but disallow blanket bans on the athletes that have been approved across the country.

The proposal was met with mixed reaction from transgender rights activists, with some saying that it provided a welcome set of protections for trans students and others saying the regulations could offer a roadmap for those who want to discriminate.

Specifically, the department’s proposal requires schools that wish to limit trans athletes’ participation to show that the decision relates to an important educational objective and minimizes harm to others.

“The proposed rule … recognizes that in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation,” the Education Department said in a fact sheet. It said the proposal would give schools “the flexibility to develop their own participation policies.”

Under the proposal, blanket or categorical bans on all trans athletes — like the one in Texas — would not be allowed, setting up a clash with Republican-led states that have enacted sweeping prohibitions.

Just this week, legislators in Kansas overrode Democratic Gov. Laura Kelly’s veto to impose a ban on transgender athletes in kindergarten through college. Kansas was the 20th state to impose such a ban, according to tracking by the Movement Advancement Project, a think tank that supports transgender rights.

There have been numerous court challenges to these laws, including one in West Virginia, where the law is on hold. On Thursday, the Supreme Court refused to immediately reinstate that law, which bars transgender athletes from playing on female sports teams from middle school through college. The law defines eligibility for certain sex-specific teams to “be based solely on the individual’s reproductive biology and genetics at birth.”

The case was the high court’s first examination of restrictions on transgender athletes, but was not a decision on the merits of the case.

The new Biden administration proposal puts forth a framework for developing eligibility criteria that schools can use to be in compliance with Title IX, the 50-year-old federal law that bars schools from discriminating on the basis of sex. The Education Department has already said, in a regulation proposed last summer, that discrimination on the basis of gender identity is also barred under Title IX.

Schools that want to limit trans athletes’ participation in sports would have to consider the sport, the level of competition, and the grade or education level involved. For instance, the administration said, elementary school sports should be generally open to transgender students but bans could be allowed for older students, especially at the high school and college levels.

It noted that some teams require advanced skills and others allow anyone to participate, such as intramural or junior varsity squads, and said rules must “reflect these differences in competition.”

This, the administration said, was to ensure objectives such as fairness in competition.

The proposed rules, which will be subject to public comment, are the administration’s interpretation of the federal Title IX law, and would apply to all public K-12 schools, as well as colleges and universities that receive federal funding.

The issue has become politically hot across the country, driven by Republicans who oppose transgender rights, even though a small share of people identify as transgender and only a limited number of actual cases have raised concerns. Numerous court challenges already are pending, filed by people on both sides of the debate.

Polling last year from the Pew Research Center and Gallup found 0.6 percent of American adults identified as transgender, though among young adults, the share was about 2 percent.

The Biden administration has moved deliberately on this issue. Last summer, the Education Department issued regulations making clear that under Title IX, schools also may not discriminate against students on the basis of gender identity. But the administration put off the question of sports participation amid concerns about the politics of the issue ahead of the 2022 midterm elections.

Polling shows a majority of Americans oppose allowing transgender women to compete in sports. A Washington Post-University of Maryland poll last year found 55 percent of Americans opposed allowing trans women and girls to compete with cisgender women and girls in high school sports, and 58 percent opposed to it for college and professional sports. About 3 in 10 said they should be allowed to compete at each of these levels, while another 15 percent had no opinion.

Similarly, in May 2022, Pew found 58 percent of adults saying they favor laws that require trans athletes to compete on teams that match the sex they were assigned at birth.

A senior administration official said the department considered a wide range of views in writing its proposal.

Supporters of these measures say that allowing transgender girls and women to compete puts cisgender girls and women at a competitive disadvantage because their sex is male so therefore their bodies tend to be stronger and faster.

And at least one suit argues that allowing trans women to compete violates Title IX, saying it compromises the rights of cisgender girls who compete against them.

Scott Clement, Robert Barnes and Rick Maese contributed to this report.

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