No wholesale ban of transgender athletes, U.S. Department of Education proposes

April 6, 2023, 6:09 PM

Under proposed federal regulations issued Thursday, schools are not allowed to adopt wholesale bans on transgender athletes that keep them from participating on teams that align with their gender identity.

Instead, the U.S. Department of Education has given schools flexibility to adopt policies based on grade, sport, and level of competition in order to give opportunities to transgender students while recognizing the need to ensure fairness and prevent sports-related injuries.

"One-size-fits-all policies that categorically ban transgender students from participating in athletics consistent with their gender identity across all sports, age groups, and levels of competition would not satisfy the proposed regulation," according to a release issued by the department Thursday.

The U.S. Department of Education's ruling comes just a day after Kansas became the 20th state to impose restrictions on transgender athletes. Like the laws in many other Republican-led states, Kansas's ban preventing transgender girls from competing on women's teams came amid other legislation and proposed laws curtailing the rights of transgender individuals.

W. Scott Lewis, managing partner with TNG Consulting and a member of the advisory board of the Association of Title IX Administrators, said in an email Thursday that the U.S. Department of Education's rule -- if it becomes final -- would supersede any state law, as it is a federal regulation. But he said that the rule would likely be challenged in court.

During a call with reporters Thursday, a senior department official said in response to a question about state bans that the "the federal civil rights law is the law of the land" and the department expects all schools to comply. If the department is made aware of schools possibly violating the law, it will investigate. If it determines there is a violation, and the school declines to come into compliance, the official said, it can withhold federal funds to "ensure that no federal dollars are spent to discriminate against students in school."

The department's release notes that across-the-board bans "fail to account for differences among students across grade and education levels. They also fail to account for different levels of competition -- including no-cut teams that let all students participate -- and different types of sports."

An example given by the department notes that transgender students in elementary school would generally be able to participate on teams based on the gender with which they identify, because sports at that level are focused on "building teamwork, fitness, and basic skills." As students get older and the stakes get higher in high school and college where issues of fairness in competition become more of a factor, schools may institute certain criteria that limit participation of some transgender students, according to the proposal.

But those limits must be "substantially related to the achievement of an important educational objective" and "minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied," the proposed law reads.

The department's release says that grade level alone shouldn't be the sole determining factor, noting that some intramural or lower-level teams for older students might not justify such limits on transgender athlete participation.

The department did state that if there are measures available to "cause less harm" to transgender athletes but the "school chooses not to minimize the harm," the school might be in violation of Title IX. 

The proposal does not spell out what criteria a school should use, but the release does reference that the NCAA and other sport governing bodies have specific rules, many of which include provisions for hormone treatment and other medical procedures.

The senior department official told reporters that while the release makes reference to the NCAA and its policies, the department "does not take a position" on whether the association's criteria would be adequate. She said that schools should tailor their policies to each sport and level of competition and that she would "caution any school about taking something off the shelf ... including ... a particular athletic association rule."

Speaking to ESPN on Thursday, Chris Mosier, transgender athlete and inclusion advocate, said: "I applaud the Department for taking this step to update the athletics eligibility rule to advance Title IX's goal of ensuring equal opportunity in athletics and as this process continues, I encourage them to create the most expansive and powerful rule to support transgender students."

Also among those welcoming the department's proposed rule was Rodrigo Heng-Lehtinen, executive director of the national center for transgender equality (NCTE).

"NCTE applauds the Department of Education for acknowledging in this proposed rule that categorical bans on participation in school sports on the basis of transgender status are inappropriate, unlawful, and fundamentally un-American," Heng-Lehtinen said. "We look forward to working with the Biden-Harris Administration to ensure that the final Title IX rule affords all students - including transgender, nonbinary, and intersex youth - respect, inclusion, and the right to have fun participating in sports with their friends without fear of discrimination."

The NCAA, which adopted a policy on transgender athletes in 2010, updated it in 2022 to a sport-by-sport policy with three phases of implementation set to complete in 2025. During this academic year, transgender women were required to document their testosterone levels at the beginning of their season, a second time after six months, as well as provide testosterone levels four weeks before championship selections. The allowed level of testosterone varies depending on national governing body and sport rules.

As stated on the NCAA's website, the participation rules are based on those held by the sport's national governing body. If those don't exist, it falls to the sport's international federation or policies previously established by the International Olympic Committee.

U.S. national governing bodies vary widely in their rules regarding transgender athletes. Some international governing bodies have imposed tighter restrictions on transgender athletes: World Aquatics, which governs swimming and diving, and World Athletics, which governs track and field, have both announced policies banning transgender women from elite female competitions if they have gone through male puberty.

The issue of transgender athletes -- specifically transgender girls and women participating in women's sports -- has largely divided along political lines. A conservative Christian group, the Alliance Defending Freedom, filed a Title IX lawsuit on behalf of four cisgender female athletes who argued that schools and a sports association in Connecticut violated the law by letting transgender students participate on women's teams. The plaintiffs are appealing for a rehearing after a federal appellate court dismissed the case in December 2022.

"These proposed rules are a slap in the face to female athletes who deserve equal opportunity to compete in their sports," Alliance Defending Freedom senior counsel Christiana Kiefer told ESPN in a statement. "The Biden Administration's rewriting Title IX degrades women and tells them that their athletic goals and placements do not matter."

The Department of Education removed this issue from the slate of other Title IX reforms it proposed in June 2022, stating that it needed to engage in separate rulemaking "to address whether and how the Department should amend the Title IX regulations to address students' eligibility to participate on a particular male or female athletics team."

Those proposals, the final version of which are expected to go into effect later this spring, did include a provision that would formally protect LGBTQ students under Title IX, making clear that "preventing someone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Title IX," according to the department. U.S. Secretary of Education Miguel Cardona has also spoken publicly in support of transgender students several times during his administration.

"Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination. Being on a sports team is an important part of the school experience for students of all ages," according to statements made by Cardona in a press release Thursday from the department.

"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. Today's proposed rule is designed to support Title IX's protection for equal athletics opportunity. We welcome and encourage public comment on the proposed regulation and will continue working to ensure Title IX's effective protection for all students."

The proposed Title IX regulations will be open to public comment for 30 days. The senior department official did not say when the new rules would go into effect. 

Additional reporting by Katie Barnes