April 24, 2023

Biden proposes new rule for transgender student athletes in response to state bans

The Biden Administration has proposed a new rule to Title IX that impacts transgender students playing school sports.

The U.S. Department of Education proposed a new rule to Title IX to provide guidance for schools navigating decisions about transgender youth playing school sports. Title IX requires that any public educational institution that receives federal funding provide educational opportunity, including in athletics, that is free of discrimination based on gender.

Some have said this is the first time an administration has taken a position on this issue, which has become a political wedge issue. In New Mexico, legislators in a committee heard an anti-transgender bill in 2021, that would have banned transgender athletes from playing on school teams consistent with their gender identity. Democrats on the committee defeated it.

Adrien Lawyer, co-founder of Transgender Resource Center, said the issue of transgender students playing in school sports “feels very political within our community.”

“They’re using trans folks as a test case around bodily autonomy, inclusion and support for civil rights,” he said.

So far, 21 states have enacted laws to ban transgender athletes from participating on school sport teams consistent with their gender identity. Some of those 21 are neighboring states Texas, Arizona and Oklahoma.

The Biden administration’s proposed rule would, if it goes into effect, make those state bans illegal. The Department of Education said in a fact sheet that the proposal is designed to protect transgender students playing sports by eliminating state bans and also ending a one-size-fits-all approach.

The proposed rule would require that elementary schools allow transgender students to play on teams consistent with their gender identity.

The proposed rule would, however, allow individual schools to determine at the high school and college level if transgender individuals can play on a team sport consistent with their gender identity if the restriction “enables the school to achieve an important educational objective, such as fairness in competition and meet the proposed regulation’s other requirements.” The rule says that schools that receive Title IX cannot place a ban on transgender athletes “just because of who they are.”

“The proposed rule also recognizes that in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation,” the policy fact sheet states.

Marianna Anaya, a lobbyist for Equality New Mexico, said she disagreed with that part of the approach because “gender has nothing to do with how good you are at a sport.” She said she worries that the proposed policy could leave “a lot of leeway” for discrimination of transgender students.

“This fight is about bodily autonomy,” she said.

Anaya brought up HB 207, Expand Human Rights Act, which passed the Legislature and was signed by Governor Michelle Lujan Grisham a few weeks later. It expands the definitions of the words “sexual orientation” and “gender identity.” It also prevents public bodies from discriminating against LGBTQ individuals.  

Anaya said it was important that New Mexico passed the bill because “there is a concerted effort nationally to institute these [anti-trans] bans.”

She said fights are “inevitable” at the individual school board level if Biden’s policy is implemented.

Lawyer said “real parity” would be to test every student athletes’ hormones, find out who has a competitive advantage and then handicap that athlete, regardless of other factors.

“You may be surprised how different people’s bodies really are,” he said.

The proposed rule, if it becomes a part of Title IX, could not be used as a form of “disapproval of transgender students or a desire to harm a particular student.”

“The criteria also would have to 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 fact sheet states.

Lawyer said he welcomes the policy because it will eliminate state bans on transgender student athletes and end one-size-fits-all approaches.

“Yes, I want the governing sports bodies to do research and find a way to play fairly. Trans folks exist and want to be included in their gender and nonbinary folks want people to know there is more than just men and women. We’re just trying to get people to understand that idea,” Lawyer  said.

He said he also thinks that the New Mexico Expand the Human Rights Act will protect transgender student athletes from discrimination.

Lawyer said that, for him, the conservative claim that transgender girls will have a significant impact on competitiveness in girls’ sports is “like saying we can’t have lesbians playing with straight girls because it would make them turn lesbian.”

“That sounds crazy,” he said.

Lawyer said there is only a “smattering of trans athletes,” and he mentioned the New Zealand Olympian weightlifter, Laurel Hubbard, who is a transgender athlete. She took the bronze medal in the Tokyo games in 2021.

“She didn’t push cis women off the podium. She was just so proud to be there,” Lawyer said.

Lawyer said that many transgender children receive hormone blockers before they reach puberty.

“Many trans girls are not going through male puberty. That is the basis of the objection. That if they go through male puberty, then de facto, they have a competitive advantage,” he said.

But, he said not “every cis gender man can overpower a cis gender woman.”

“We’re just banning a characteristic. If we’re testing hormones, we should be testing everybody’s hormones and making sure everybody is within the acceptable range of testosterone,” he said.

The rule is open for public comment until May 6.