The proposed rule, which still faces a lengthy approval process, establishes that blanket bans, like those that have been approved in at least 20 states, would violate Title IX, the landmark gender-equity legislation enacted in 1972. But schools that receive federal funding could still adopt policies that limit transgender students’ participation, particularly in more competitive high school and college sports.
Under the proposal, it would be much more difficult for schools to ban, for example, a transgender girl in elementary school from playing on a girls basketball team. But it would also leave room for schools to develop policies that prohibit trans athletes from playing on more competitive teams if those policies are designed to ensure fairness or prevent sports-related injuries.
Imara Jones, a trans woman who created “The Anti-Trans Hate Machine” podcast, blasted the proposal, saying President Biden is attempting to “straddle the fence” on a human rights issue ahead of an election year by giving legal recourse to schools that bar some trans athletes from competition.
“The Biden Administration framed their proposal as a ban on blanket discrimination against trans athletes,” Jones said. “But actually, it provides guidelines for how schools and universities can ban trans athletes legally.”
U.S. Rep. Alexandria Ocasio-Cortez, a New York Democrat, also offered pointed criticism, saying in a tweet that the plan was “indefensible and embarrassing.”
Erin Reed, a prominent trans activist and researcher, said the proposal “alarmingly” echoes right-wing talking points, which argue that trans participation could increase injuries and take away scholarship opportunities from female athletes who are cisgender, meaning their gender identity matches the sex they were assigned at birth. She worries school boards and lawmakers will use it to justify bans.
Extensive research is virtually nonexistent when it comes to determining whether adolescent trans girls have a clear athletic advantage over cisgender girls.
“I can’t read this any other way than a betrayal,” Reed said in a tweet. “This entire document is worse than doing nothing.”
The U.S. Department of Education declined to comment Friday on criticisms from trans rights advocates.
Sean Ebony Coleman, founder of the LGBTQ+ center Destination Tomorrow in New York, said policymakers — particularly on a national level — need to rule out any option for trans people to be further ostracized.
“While it hypothetically prevents across-the-board bans, it offers enough gray area for discrete gender policing and demonization to occur, specifically on a local level,” Coleman said.
Still, some transgender athletes welcomed the proposal as an important first step toward protecting trans kids’ access to sports.
“I would love to see protections expanded to include elite and collegiate sports, but this seems like a good start,” said Iszac Henig, a trans man and competitive swimmer at Yale University. “Trans athletes should have the ability to compete on the team of their choice if their athletic skills allow it.”
Some LGBTQ+ organizations, such as the nonprofit GLBTQ Legal Advocates & Defenders, applauded the proposal for allowing schools to adopt what it considers “reasonable policies for inclusion of transgender athletes that take into account differences between sports and across levels of competition.”
Doriane Coleman, a law professor at Duke University, said the proposal allows schools to “still choose to have male and female sports teams” and makes sense compared with the “one-size-fits-all approach” found in some states.
A way that the federal government, states and advocacy groups can avoid “piecemeal litigation” is by making clear “there is a body of evidence to support generalizable sex-specific eligibility standards for each sport at each level of development,” Coleman said.
The proposal was assailed by many Republican leaders who said they were ready to fight the plan in court.
“South Dakota will not allow this to stand,” Gov. Kristi Noem tweeted. “We will lead. We will defend our laws.”
Alabama Atty. Gen. Steve Marshall issued a statement suggesting the state might also try to challenge the federal rule. Alabama lawmakers in 2021 approved legislation that bans trans women and girls from participating on female sports team in K-12 schools. It was also one of 20 states that filed a lawsuit in 2021 seeking to halt directives that extend federal sex discrimination protections to LGBTQ+ people.
“I have made myself abundantly clear to the Biden Administration that he will NOT impose his radical policies on Alabama athletes. He will NOT destroy athletic competition for our young women & girls. In Alabama our law protects girls’ sports. Stay tuned!” Marshall said in a statement.
Selina Soule, a former high school track player in Connecticut, who joined others in suing over the state’s policy allowing two transgender girls to compete against them, denounced the proposal.
“I never stood a chance when I competed with them,” she said of trans girls. “Women deserve fair competition.”
The public will have 30 days to comment on the proposal after it is published in the Federal Register. After that, the Education Department will review the comments and decide whether any changes are needed before issuing a final rule.