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Title IX changes seek to ‘minimize harm’ to transgender athletes

Colleges, high schools could still limit participation in some cases

Rep. Mark Takano, D-Calif., poses for photos holding a  transgender pride flag on the House steps on Nov. 17, 2021.
Rep. Mark Takano, D-Calif., poses for photos holding a transgender pride flag on the House steps on Nov. 17, 2021. (Bill Clark/CQ Roll Call)

The Biden administration took steps Thursday meant to strengthen the rights of transgender athletes to participate in scholastic sports while giving high schools and colleges the ability to limit eligibility for competitive teams to ensure fairness.

The Department of Education proposed rule for Title IX regulations would not allow a “one-size-fits-all” categorical ban that excludes all transgender girls and women from any female athletic team, according to an administration fact sheet.

Instead, schools could develop eligibility criteria “that serve important educational objectives, such as ensuring fairness in competition or preventing sports-related injury,” and would account for the sport, level of competition and grade or education level, the fact sheet states.

Over the past three years, a wave of Republican-led states passed laws that completely bar trans athletes from scholastic sports. This week, the Kansas legislature overrode Democratic Gov. Laura Kelly’s veto to impose such a blanket ban.

Education Secretary Miguel Cardona issued a statement that the new rule is designed to support Title IX protection for equal opportunity in athletics, and he encouraged public comment on the rule.

“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination,’’ Cardona said.

The department’s approach would allow schools “flexibility to develop team eligibility criteria,” according to the fact sheet.

“These criteria could not be premised on disapproval of transgender students or a desire to harm a particular student,” the fact sheet states. “The criteria also would have to minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”

Schools that fail to “minimize harms” to transgender students may be found in violation of federal law.

In general, the proposed rule would allow younger children to participate on teams that are consistent with their gender identity, because sports at the elementary school level are generally less competitive. “Considerations may be different for competitive high school and college teams,” the department said.

Imani Rupert-Gordon, executive director for the National Center for Lesbian Rights, was among some of the advocates who praised the proposal.

“Transgender youth are an integral part of every school across this country,’’ Rupert-Gordon said. “We applaud the Department of Education for recognizing that the law requires that transgender students must be treated fairly and equally and as respected members of their school communities.”

But a senior attorney for Lamda Legal, which advocates for LGBTQ civil rights, raised concerns in a statement about whether the proposed rule could “properly eliminate the discrimination that transgender students experience due to the pervasive bias and ignorance about who they are.”

“Given the importance of the opportunity to participate in athletics to students’ educational experience, we look forward to submitting comments and working with the administration to further remove those remaining bigotry-based barriers to full and equal participation by transgender youth,” Sasha Buchert, who is also the group’s director of the Nonbinary and Transgender Rights Project, said.

The proposed rule would amend Title IX, the 1974 federal civil rights law that prohibits discrimination based on sex. It is subject to a period of public comment before it would take effect.

Transgender individuals constitute a tiny minority of the U.S. population. But in recent years, they have become the focus of Republicans politicians, who have sought to limit their right to participate in sports, receive health care and more.

The Department of Education proposal was released the same day that the Supreme Court declined to intervene in a case brought by a transgender student seeking to overturn West Virginia’s ban on trans athletes. The court’s order meant the student, Becky Pepper-Jackson, can compete on her middle school’s girls cross country and track teams as the legal fight continues.

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