Editorial: Cautious optimism on Title IX rule

  • by BAR Editorial Board
  • Wednesday April 12, 2023
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A proposed rule to Title IX of the Education Amendments Act seeks to remove barriers to trans students participating in sports. Image: USDOE
A proposed rule to Title IX of the Education Amendments Act seeks to remove barriers to trans students participating in sports. Image: USDOE

The White House's rollout last week of the Department of Education's proposed Title IX rule regarding trans student-athletes was clunky, to say the least. That led to a lot of confusion and anger, especially from some trans people. (Title IX of the Education Amendments Act applies to schools that receive federal funding.) At issue in the proposal is a part that would allow schools to restrict the participation of trans athletes, but those must be supported by evidence and minimize harm to trans students. We understand the frustration over this detail of the proposal. However, the other main part of the rule change — which will soon undergo a 30-day public comment period — is that the statewide blanket bans on trans students playing on sports teams that match their gender identity will not be allowed, nor would schools be able to enact across-the-board bans. This is because a school or district's policy must be tailored "for each sport, level of competition, and grade," as Slate reporter Mark Joseph Stern wrote.

As the proposal states, "If a recipient adopts or applies sex-related criteria that would limit or deny a student's eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied."

Importantly, Stern noted the compromise by the Biden administration is crafted in such a way as to withstand legal challenges "by locating a middle ground that grants protections to transgender students that are strong but not absolute." Given the conservative makeup of many federal courts — particularly the U.S. Supreme Court — that is important.

Still, the policy is not perfect by any means, and we do not think the issue of trans student-athletes will magically disappear once this rule takes effect, particularly at the elite level of college sports, including Division I schools.

Several LGBTQ legal organizations support the proposal. Shannon Minter, a trans man who is the longtime legal director of San Francisco-based National Center for Lesbian Rights, was quoted in Stern's piece: "Given the relentless attacks on transgender people that have escalated over the past two years, it is understandable that some advocates are braced to fear the worst and concerned that the rule might be misinterpreted or misapplied to permit discrimination. But the department's explanation in the preamble to the proposed rule is very clear not only that blanket bans are unlawful, but that any restrictions must meet a stringent test and would pass muster only in the context of elite competitions."

In other words, the proposed rule seeks to find a middle ground to allow students in elementary and middle school to play sports on teams that correspond to their gender identity. When it comes to high school and college, however, there may be more room for restrictions. We asked Minter if, in the absence of blanket bans, doesn't the proposal mean any school district could impose its own rules preventing trans kids from playing sports? "No, I don't think so," he responded.

Lambda Legal Defense and Education Fund has taken a more cautious approach. Sasha Buchert, a senior attorney and director of Lambda Legal's Nonbinary and Transgender Rights Project, acknowledged that the 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." However, Buchert added, "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. These students must have full and equal chances to participate because participation in athletics provides many long-term benefits for young people, including important health benefits, and chances to develop leadership skills, discipline, and self-confidence. Given the importance of the opportunity to participate in athletics to students' educational experience, we look forward to submitting comments and working with the administration to further remove those remaining bigotry-based barriers to full and equal participation by transgender youth."

The Department of Education also noted the critical importance that physical education and sports plays in helping pupils. "Youth participation in athletics is associated with many physical, emotional, academic, and interpersonal benefits for students, including increased cognitive performance and creativity, improved educational and occupational skills, higher academic performance and likelihood of graduation from a four-year college, improved mental health, and improved cardiovascular and muscle fitness, as well as reduced risk of cancer and diabetes, and has the potential to help students develop traits that benefit them in school and throughout life, including teamwork, discipline, resilience, leadership, confidence, social skills, and physical fitness," stated the DOE proposal.

We expect that the LGBTQ legal organizations, along with various statewide equality groups and others, will provide public comment during this period, and that is essential. Upon reviewing those comments, perhaps revisions can be made to the proposal to refine responsibilities of schools and districts to more clearly add to federal law that trans students be allowed to play sports as their authentic selves and not be subject to restrictions. President Joe Biden has expressed his strong support for trans youth for many years, including as recently as his State of the Union address in February. We're optimistic that with a supportive federal education department, this change to Title IX will make it easier for trans youth to play sports without the discriminatory policies that so many states have put in place and that will hopefully become void once this rule goes into effect.

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