Biden administration proposes new rules for transgender athletes

Regulation would prohibit wholesale bans but allow trans athletes to be excluded in some cases

A trans rights march on Capitol Hill in Washington last month. Picture: AFP

The Biden administration is wading into the combustible issue of transgender students in school sports with a proposed new rule that would prohibit wholesale bans on trans athletes but would allow them to be excluded from competitions if needed to maintain a level playing field.

The new federal guidelines are an attempt to clarify how Title IX regulations that ensure equal access to education should apply to transgender athletes, a topic that has become a hot-button issue in college and K-12 sports.

Under the proposed regulation, schools would not be permitted to adopt “one-size-fits-all” policies that categorically ban transgender students from participating on teams consistent with their gender identity, federal officials said. But schools would have flexibility to develop team eligibility criteria that ensures fairness in competition or prevents sports-related injury.

On Thursday, the Supreme Court rejected an emergency request by West Virginia to bar a 12-year-old transgender girl from competing on her middle school’s girls track team, in the first case involving transgender athletes to reach America’s highest court.

The Education Department’s proposed new framework for navigating the issue must undergo a process for public comment before it can take effect and is subject to change. It comes after the department in June proposed new rules allowing students and employees to file grievances for allegations of all sex-based discrimination, rather than just those of sexual harassment and assault.

Non-compliance with Title IX rules could threaten schools’ access to federal funds. It isn’t clear whether the new federal guidance will impact existing rules from the National Collegiate Athletic Association. The NCAA didn’t respond to a request for comment on the new Title IX rules.

According to Education Department officials, the new rules would allow schools to adopt policies that limit transgender students’ participation in instances of “competitive high school and college athletic environments” so long as they promote “an important educational objective, such as fairness in competition”. Officials said such criteria conform with some existing limits on athletic participation, such as restricting events by level.

“For example, teams for younger students often focus on building teamwork, fitness and basic skills for students who are just learning about the sport, while a collegiate team may be primarily focused on competitive success,” a fact sheet published by the department said.

There are more than half a million athletes competing across all levels of collegiate sports under the NCAA. Transgender-identifying participants are a small fraction of that. The NCAA doesn’t track how many transgender participants are actively competing, but fewer than 30 athletes who openly identify as transgender have competed in NCAA sports in the past decade, according to OutSports, a website dedicated to covering LBGTI athletes and issues affecting them.

Participation for trans athletes within NCAA sports has been a hotly debated topic in recent years. Last year, the association updated its policy for transgender participation to match the policy determined by the national governing body of the sport or, in the absence of such a group, the sport’s international federation. Previously, the NCAA called for a year of testosterone suppression treatment for trans women. Trans men were allowed to compete for either men’s or women’s teams, so long as they hadn’t undergone hormone therapy.

Last year, the NCAA drew criticism for how it handled the case of University of Pennsylvania swimmer Lia Thomas. Originally recruited to compete for the men’s team, Thomas came out as transgender in 2019 and began hormone therapy shortly after, in accordance with NCAA guidelines at the time.

Due to the pandemic, and the Ivy League’s subsequent cancellation of the 2020-21 season, Thomas didn’t race while satisfying the NCAA’s hormonal requirements. When Thomas returned to racing during the 2021-22 season, she won events and set records at multiple meets.

At the NCAA Swim & Dive Championships in March 2022, she won the 500-yard freestyle by more than a second while protesters looked on from the stands – a rarity at swim meets.

The Wall Street Journal