When the Biden administration released a proposed change to Title IX earlier this month addressing transgender athletes鈥� participation in school sports, the issue became a lot more complicated than many expected.
The change would prohibit schools from categorically barring transgender youth from joining school sports teams that align with their gender identity. But schools would still be able to prevent or limit trans athletes鈥� participation when it would conflict with a sport鈥檚 鈥渆ducational objective鈥濃�攚hich could be anything from fairness in competition to teamwork and team building.
Immediate reactions to the proposal were mixed. Some LGBTQ+ advocacy groups, such as the Human Rights Campaign, GLSEN, and the Trevor Project, labeled it an important step forward for transgender youth because the rule would challenge 21 state laws banning trans youth participation in school sports. But others saw the U.S. Department of Education鈥檚 proposed rule as a betrayal of transgender students, saying it gives schools a legal framework to prevent them from playing,
On the other side of the debate, Republican lawmakers in the U.S. House a 鈥減erverse interpretation of Title IX,鈥� that 鈥渞obs women of athletic opportunities.鈥�
Regardless of where they stand on the issue, school administrators, athletic directors, and coaches will have a complicated future as they navigate the new rule, which . The rule may change based on feedback the Education Department receives during the comment period. The proposal has generated over 2,800 comments in its first six days on the Federal Register website.
鈥淭here is such a divisive political atmosphere around the country and the state that we鈥檙e just going to have to wait and see how it is finally implemented,鈥� said Julian Tackett, commissioner of the Kentucky High School Athletics Association, the state鈥檚 governing body for high school athletics.
New rule would stand up to categorical bans
The proposed rule would present a legal challenge to state laws that ban transgender youth from joining school athletic teams that align with their gender identity.
Those laws have proliferated in the last three years since Idaho became the first state to bar transgender girls from participating in girls鈥� sports in March 2020.
Most recently, North Dakota Gov. Doug Burgum signed two laws on April 11 that prohibit transgender girls and women from joining female sports teams at the K-12 and college levels. Earlier this year, Kansas and Wyoming enacted similar bans, bringing the total number of states with bans to 21, according to
Other bans are in the works, with one that would prohibit transgender girls from playing girls sports advancing in the North Carolina legislature this week.
The sponsors of that bill argued that trans girls could take away opportunities from cisgender athletes because they don鈥檛 have to deal with 鈥渂iological disadvantages,鈥� such as menstrual cramps,
Meanwhile, Republicans in the U.S. House are planning to pass the Protection of Women and Girls in Sports Act, which would prohibit transgender women and girls from playing K-12 and college female sports. The White House has already said that President Joe Biden would veto the bill.
The Title IX rule Biden鈥檚 administration is finalizing wouldn鈥檛 immediately override all of those laws and bills. Instead, schools in states with bans would likely enter complicated legal battles as soon as students decide to sue them for violating Title IX.
鈥淭here鈥檚 a couple of ways it could be enforced,鈥� said Elana Redfield, federal policy director at the Williams Institute, an LGTBQ+ research center based at the University of California, Los Angeles. 鈥淔or one, individuals can file complaints and those complaints would be investigated, then potentially the Department of Education would play a role in mediating a resolution that might result in a change to those state policies.鈥�
The Education Department could also tie the Title IX rule to federal funding, making it so the agency could cut funding to states that decide to stand by their bans on transgender kids鈥� athletic participation.
Redfield and other legal experts see Title IX as the law of the land, arguing that states won鈥檛 be able to defy it for long without serious consequences. But in states where categorical bans are already on the books, athletic directors and officials may feel they have no option but to follow state law.
That鈥檚 the case for Tackett in Kentucky, where transgender girls are banned from playing girls sports.
鈥淲e are first and foremost bound to the state laws,鈥� Tackett said. 鈥淭he federal guidance is nice and there may have to be some risk assessment made by both our courts and legislature of what happens to schools that go one way or the other, but we鈥檙e first and foremost bound by state law.鈥�
Tackett said he doesn鈥檛 see things changing much in the near future after the rule is finalized, as he expects the issue to play out in the courts.
It鈥檚 also not a major issue for most schools as only 1.43 percent of 13- to 17-year-olds identify as transgender, according to the Williams Institute, and around 26 percent of those students play sports, . As of last August, Kentucky only had one transgender K-12 athlete,
What the new rule means for schools
When the Biden administration announced the proposed rule earlier this month, some advocates worried that it created a roadmap for schools to prevent transgender youth from playing.
Redfield said her first reaction to the rule was that it is 鈥渘ot strong enough and it鈥檚 potentially unworkable.鈥�
But now that she鈥檚 had time to review it in detail she thinks it could be effective in protecting trans athletes.
鈥淢y perception is that this rule is going to certainly protect a number of trans people and that it would really call into question all of these state bans that have been put into place,鈥� she said. 鈥淪o in many ways, it鈥檚 a very strong statement of guidance, but there are still some ways in which it might present uncertainties that would allow for trans people to be discriminated against.鈥�
If schools are going to develop policies that prevent certain students from playing a sport, the rule would require them to consider a number of different factors.
Those considerations would include students鈥� grade level and the sports鈥� educational objective. For elementary-age students, the objective is more likely to be learning about teamwork than rigorous competition, making it more difficult to justify a ban of transgender students, according to the Education Department.
Schools would also have to consider participation criteria published by sports governing bodies such as the NCAA and physical requirements that vary widely from sport to sport, according to the department.
Finally, schools would have to ensure that any policy that prevents a student from playing a sport minimizes harm to the student, according to the proposed rule.
Those steps would present a major barrier to a school hoping to limit transgender students鈥� participation, Redfield said. The school would have to prove that its policy doesn鈥檛 violate Title IX and that it doesn鈥檛 discriminate against transgender students.
鈥淚 don鈥檛 know that it is worth that level of cumbersome investigation and policy development and implementation that could potentially bring them out of compliance with Title IX,鈥� Redfield said. 鈥淚 think it creates a very narrow window within which you can actually discriminate against trans people.鈥�
But some coaches and athletic directors worry about the prospect of letting schools set eligibility requirements. It puts both administrators and students in a difficult position, said Anthony Nicodemo, a boys basketball coach and athletic director at the Greenburgh-North Castle school district in Dobbs Ferry, N.Y.
鈥淭he administrators react to what the parents or community do a lot of times,鈥� he said. 鈥淪o I don鈥檛 think it鈥檚 a good idea to leave it up to individual administrators because what you鈥檙e going to have is within leagues, within athletic associations, within sections, you鈥檙e going to have all of these different rules floating around and no one is going to know exactly how to grasp them.鈥�
Some worry rule will harm students
The rule specifically requires schools to minimize harm to students not allowed to play their sport, but coaches, transgender athletes, and parents have all said that preventing a student from playing a sport causes significant harm.
Minna Zelch鈥檚 daughter, Ember, had to wait three years to qualify to play girls softball because she is transgender. The family lives in Ohio and, in order to play on a girls team, state law requires that Ember prove that she is trans by undergoing physical examinations at her doctor鈥檚 office.
鈥淪he wanted to play starting in middle school and we didn鈥檛 apply because I wasn鈥檛 familiar with the rule鈥攎aybe she would have qualified, maybe not. I don鈥檛 know,鈥� Zelch said. 鈥淏ut waiting those three years were just horrendous on her and she was way behind.鈥�
Even that complicated requirement could change. Ohio lawmakers have reintroduced a bill that would ban transgender girls from playing girls sports, which failed to pass last year.
Telling kids they can play on a club or recreational team because they can鈥檛 play on a school team is still ultimately damaging, Nicodemo said.
鈥淚f a kid wants to play and they鈥檙e told they can鈥檛, there鈥檚 no way to minimize the harm,鈥� he said. 鈥淚t鈥檚 not possible.鈥�
Redfield, Nicodemo, Zelch, and Tackett all want to see more clarity from the Education Department on how exactly it plans to enforce the Title IX rules and under what circumstances a school could prevent a student from playing.
鈥淚 would like to see some real clarity on what 鈥榟arm鈥� means and what harm is tolerated against trans people,鈥� Redfield said.
