Biden proposal forbids US schools from outright bans on transgender athletes

The Biden administration has released a proposal that would forbid schools and colleges across the US from enacting outright bans on transgender athletes competing in sports.

But teams could create some limits in certain cases – for example, to ensure fairness, according to the proposal, which did not go into extensive detail about the term.

If finalized, the proposal would become enshrined as a provision of Title IX, the federal nondiscrimination requirement in education at institutions that receive federal funding. It must undergo a lengthy approval process, however, and is almost certain to face challenges from opponents.

“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination,” said Miguel Cardona, Biden’s education secretary, in a statement.

The Biden administration used “fairness of competition” as criteria, which has been part of the debate in the US and globally.

The move is an effort to counteract a wave of Republican-backed measures targeting LGBTQ+ rights, particularly the participation of trans athletes in school sports. While opponents sharply criticized the proposal, some advocates for transgender athletes were concerned that it did not go far enough.

“The proposed rule helps clarify that these blanket bans on transgender athletes are in violation of Title IX and is a really positive development,” Scott Skinner-Thompson, a supporter of transgender rights and associate professor at the University of Colorado Law School, told the Washington Post. But he said the provisions allowing for discrimination were “deeply troubling”.

The proposal came on the same day that the US supreme court refused to let West Virginia enforce a state law banning trans athletes from female sports teams at public schools, one of many similar measures across the country.

The justices denied West Virginia’s request to lift an injunction against the law that a lower court had imposed while litigation continues over its legality in a challenge brought by a 12-year-old transgender girl, Becky Pepper-Jackson.

Two conservative justices, Samuel Alito and Clarence Thomas, publicly dissented from the decision.

The law, passed in 2021, designates sports teams at public schools including universities according to “biological sex” and bars some students from female athletic teams “based solely on the individual’s reproductive biology and genetics at birth”.

In the lawsuit, Pepper-Jackson and her mother, Heather, argued that the law discriminates based on sex and transgender status in violation of the US constitution’s 14th amendment guarantee of equal protection under the law, as well as the Title IX civil rights law that bars sex-based discrimination in education.

West Virginia said in a court filing that it can lawfully assign athletic teams by sex rather than gender identity “where biological differences between males and females are the very reason those separate teams exist”.

Pepper-Jackson, who attends a middle school in the West Virginia city of Bridgeport, sued after being prohibited from trying out for the girls’ cross-country and track teams.

Critics argue trans athletes have an advantage over cisgender women in competition. College sports’ governing body had adopted a sport-by-sport approach to transgender athletes in January 2022, which was to bring the organization in line with the US and international Olympic committees, though recently the National Collegiate Athletic Association (NCAA) board decided it will not be fully implemented until 2023-24.

At the same time, international sports-governing bodies are instituting policies that ban all trans athletes from competing in track and field and in effect ban trans women from swimming events.

The proposed Biden administration rules require any decisions to restrict transgender people from competing should involve important educational objectives. Type of sport, age of participants and level of competitiveness are also factors.

“We are concerned about whether the proposed rule can properly eliminate the discrimination that transgender students experience due to the pervasive bias and ignorance about who they are,” Sasha Buchert, director of Lambda Legal’s Nonbinary and Transgender Rights Project, told the Washington Post.

“This proposed rule includes critical recognition of the importance of participating in sports for transgender youth and shows why 100% of the state bans are invalid,” she added.

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