WASHINGTON — When President Biden signed an executive order in his first hours in office strengthening prohibitions against gender and sexual discrimination, a small team of officials at the Department of Education began to assess the unanswered but important question: How can government protect transgender athletes?
At the time, only a few states had banned transgender athletes from competing in sports that matched their gender identity.
But as the education team worked — initially, on pandemic-era Zoom calls — with officials on the White House Gender Policy Council, the state's stream of banning transgender athletes turned into a waterfall. By the time they have gone through several drafts of a proposal to designate transgender students protected under Title IX, a 1972 law against sex-based discrimination in federally funded schools, at least 20 states have already banned them in sports.
The issue has divided activists who think banning transgender athletes is necessary to protect fairness in sport, and others who strongly believe that blocking such athletes in any form is part of a larger assault on transgender people's civil liberties.
The government's latest proposal to protect transgender people, released on Thursday, is seen by those who have studied the Title IX issue as a kind of compromise: It would allow schools in limited cases to block transgender athletes from competing, including to prevent sports-related injuries. and to ensure fairness in competition. But that would disallow an outright ban.
It would also give the Department of Education the ability to investigate and potentially withhold federal funds from schools that violate the rules once they have been resolved.
“I think it's a pretty smart and prudent way to avoid both extremes,” said R. Shep Melnick, a professor of politics at Boston College and author of “The Transformation of Title IX: Regulating Gender Equality in Education.” “This provides significant, and, I think, reasonable latitude back to school officials to consider grade levels, to consider the nature of the sport, to consider the developmental conditions of these children.”
The proposal, the latest in a series of efforts to provide protection to transgender students who were disenfranchised during the Trump era, broadly reflects the divisions Americans have on the issue: A poll conducted last summer by The Washington Post and the University of Maryland found that majority of Americans at least 55 percent — not supporting transgender women and girls who compete with other women and girls at the professional, college, and high school levels.
In the spring of 2021, the team at the Department of Education—about a dozen senior officials—were busy planning a large virtual public hearing—the first of its kind for the department. Held that June, the hearing drew tens of thousands of comments from parents, coaches, civil rights groups and athletes.
The team, according to a senior official who was among the attendees, was aware of widespread confusion over how Title IX was implemented in schools across the country. The end result, the official said, reflects the “best interpretation” of how Title IX protections apply to transgender athletes and aims at least to clear up uncertainty. Conservative lawmakers who have worked to pass a state ban on transgender athletes have since accused the Biden administration of going too far. Transgender activists say they are wary of the proposal, arguing that existing loopholes could be exploited and used for further discrimination.
Mr. Biden is a key figure in the process, officials say. In the spring of 2021, she ordered a sweeping review of Title IX, when only a few state legislatures across the country, including those in Montana, Mississippi, and Idaho, have introduced their own laws to ban transgender women and girls from competing in team sports. who didn't match their sex at birth, according to the Movement Advancement Project, a liberal think-tank tracking the legislation.
Throughout his career, the president has shown a particular desire to be involved in Title IX changes. As vice president, Mr. Biden is an integral part to President Barack Obama attempt to overhaul Title IX, in part by issuing guidelines leading to aggressive investigations into schools that mishandled sexual assault complaints and threatened them with funding cuts. The rules proposed in 2018 by Betsy DeVos, secretary of education under President Donald J. Trump, replaced those guidelines.
The Biden administration's proposal, which still needs to undergo a public comment period and additional revisions before being finalized, would give the Department of Education the ability to investigate discrimination cases and withhold federal funds if schools are found to be in violation of regulations. regulation. The age of the student, the level of fairness and the nature of the sport will be among the considerations that schools will have to make when they are assessing the eligibility of an athlete.
Mr Melnick said that there were still questions around the proposal, including the extent to which the administration would “try to guess at the decision of school officials in this regard, as they would be under pressure from many directions.” ”
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Once finalized, elements of the proposal could directly challenge several state laws, particularly those that prohibit transgender students of all ages from participating in sports consistent with their gender identity.
In a fact sheet explaining the proposal, a Ministry of Education official said that “primary school students can generally participate in school sports teams according to their gender identity and it would be very difficult for schools to justify exclusion of students immediately after primary school. schools from participating consistent with their gender identity.
At the higher grade level and in colleges, schools can work to restrict transgender students when those restrictions “allow the school to achieve important educational goals, such as fairness in competition,” the document says, or prevent sports-related injuries.
About 1.4 percent of 13 to 17 year olds and 1.3 percent of 18 to 24 year olds identify as transgender, according to a report last year. Of that group, only a fraction played in team sports — 12 percent of transgender women and 14 percent of transgender men reported being student athletes — partly out of fear of not being accepted, according to to a 2017 survey conducted by the Human Rights Campaign.
“People are much more attuned to what the Biden administration's rules require,” said Nancy Hogshead-Makar, a three-time Olympic gold medalist in swimming and president of the advocacy group Champion Women, which opposes allowing trans women and non-binary people in locker rooms. women in many situations. “When it comes to women's sports especially, you have to consider safety and fairness, and that's what the school regulations allow.”
Still, transgender rights activists say the Biden administration has failed to consider that the backlash against transgender athletes could continue if the proposal still allows for the blocking of some students.
“It's hard to have a ‘middle ground' when it comes to supporting human rights for trans people,” said Imara Jones, founder of TransLash Media, in a statement, “and I can't see how Joe Biden could be straddling the fence Here.”
The Biden administration's proposal was announced the same day the Supreme Court ruled that a transgender girl could compete on the girls' cross-country and track teams at her West Virginia high school while her appeal was filed. Patrick Morrisey, a Republican and West Virginia attorney general, attacked the government's proposal, calling it “Washington overreaching the worst” in a statement.
“Segregating teams based on biological sex is a matter of basic fairness and common sense,” said Mr. Morrisey, added that his office “will evaluate and pursue all legal options to block this scheme.”
Governor Kristi Noem of South Dakota, who was a Republican last year sign bills banning transgender girls from playing in women's sports teams became law, also threatening legal action.
“South Dakota will not let this stand,” Ms. Noem in a tweet on Thursday after the Title IX proposal was announced. “We will lead. We will defend our laws. Only girls will play women's sports.”