Biden administration adds transgender twist to Title IX

Schools that establish blanket protections for single-sex athletics might lose federal funding under a proposed rule from the U.S. Department of Education.

The Biden administration published the proposal last week. It states that barring all transgender students from playing on teams of the opposite sex violates Title IX of the Civil Rights Act, which protects individuals from discrimination based on sex.

Controversy over transgenderism in student athletics has sparked intense debate and policy shifts across the country. When male collegiate swimmer Lia Thomas won a NCAA women’s swimming title in March 2022, women’s sports advocates pointed out that Thomas never qualified for the championship level before entering the women’s competition. In Connecticut, a female high school track and field athlete sued after losing the women’s state championship title four times to a boy who identified as a girl.

As of Tuesday, 20 states have passed laws protecting girls’ sports from male participation, according to pro-LGBT group Movement Advancement Project. Last week, Kansas became the latest state to protect girls’ sports at the K-12 and collegiate level from participation by boys.

Last year, the Biden administration proposed Title IX regulation changes effectively undoing Trump-era guidelines for handling sexual assaults on school campuses. The proposal also interpreted sex discrimination protections to include gender identity and sexual orientation. But last year’s changes did not address transgender students’ participation in sports. The administration said then that it would release a rule regarding transgender student athletes at a later date.

Last week’s proposal clarifies the administration’s stance on transgender athletes in public K-12 schools and colleges that receive federal funding. The proposed rule forbids schools from “categorically” barring transgender students from joining a team of the opposite sex, but it also says schools have “flexibility to develop their own participation policies.” The rule charges schools with weighing the benefits of sports and minimizing harm to students not allowed to join a team that matches their gender identity, but it provides few guidelines for school officials making those decisions. The proposal says that most elementary students should be able to join teams of the opposite sex, but in athletic programs for older students, “sex-related criteria that limit participation of some transgender students may be permitted, in some cases” due to fairness.

“The Biden administration is trying to have their cake and eat it too: inject gender identity into athletics while placing the onus upon school districts to determine whether doing so would be problematic or not,” Parents Defending Education president and founder Nicole Neily said in a statement. “Without a doubt, institutions are going to err on the side of ‘inclusion,’ because they fear the wrath of the Education Department.” If the Department of Education determines a school violated Title IX, it could lose its federal funding.

Once the rule is entered in the federal register, the rule will undergo a 30-day public comment period before a final rule is released at a later date.

In Kansas, a law protecting single-sex athletics passed when freshman Democratic Rep. Marvin Robinson joined Republicans to vote to override Gov. Laura Kelly’s veto of the bill. Robinson voted against the bill when the state House first passed it in February. He later told Pete Mundo of KCMO-FM that his constituents cared more about local issues like transportation problems than political ideologies of either party. He said that when he voted to overturn the veto, a fellow Democrat told him that he should feel guilty for transgender student suicides. “I thought I was voting for civility and for inclusion and kindness,” he said on-air. “People turned it into something different.”