The Department of Education unveiled a proposal last Thursday which aims to provide clarity on the issue of transgender athletes competing in school and college sports across the United States.
The department said in its proposal that outright bans of transgender athletes would violate Title IX, the landmark civil rights law enacted 51 years ago that forbids discrimination of any kind on the basis of gender in schools or educational facilities that receive federal support.
At least 20 states have so far implemented bans on transgender students participating in sports consistent with their gender identity — bans that fall foul of the Department of Education’s new proposal.
“Such bans fail to account for differences among students across grade and education levels,” the Education Department said.
“They also fail to account for different levels of competition — including no-cut teams that let all students participate — and different types of sports.”
Yet while outright bans are outlawed under the proposal, educational institutions would however be granted discretion to bar trans students from competing if their participation was deemed to undermine fairness.
Under the proposal, a school might, for example, have difficulty keeping a transgender student from playing in an elementary school sports match meant to emphasize teamwork, but could potentially ban such athletes from competitive high school matches.
Trans people in sport has become a heated political issue in the United States, with religious conservatives especially fighting against their inclusion on girls’ teams.
The thorniness of the issue was underscored by the fact that the Biden administration’s attempt to find a middle ground brought condemnation from across the spectrum.
Some progressives and trans rights activists framed the move as a “betrayal” while conservative politicians vowed to fight its implementation.
– Proposal ‘a disgrace’ –
Progressive Democratic lawmaker Alexandria Ocasio-Cortez slammed the proposal as a disgrace.
“Absolutely no reason for the Biden admin to do this,” Ocasio-Cortez wrote on Twitter.
“It is indefensible and embarrassing. The admin can still walk this back, and they should. It’s a disgrace.”
Erin Reed, a legislative researcher and activist for transgender rights, said the proposal would provide an opening for Republicans seeking to justify outright bans on transgender athletes in school sports.
“I can’t read this any other way than a betrayal,” Reed wrote on Twitter. “The administration will argue that this was ‘nuanced’ and ‘disallows outright bans’. Republicans will run with this as justification. School boards will use this to ban.”
Other trans rights supporters, however, were more receptive to the proposal, which must clear several hurdles before it is finally approved.
Jennifer Levi, senior director of transgender and queer rights at GLAD, a legal advocacy group, said the rule “affirms the importance of giving transgender students the chance to play sports.
“Being on a team helps students build healthy self-esteem, confidence, and positive self-image,” Levi said. “The proposed rule prohibits the kind of categorical bans adopted in too many states that are hurting transgender students and that send a dangerous message to all students.”
Meanwhile conservative critics — notably from states among the 20 which have implemented outright bans on transgender students from participating in sports — vowed to fight the Biden administration proposal through the courts.
“We will defend our laws,” South Dakota’s Republican governor Kristi Noem wrote on Twitter. “Only girls will play girls’ sports. President Biden, we’ll see you in court.”
Alabama attorney general Steve Marshall also suggested the state would mount a legal defense of its ban on trans women and girls from participating in female school sports teams.
“I have made myself abundantly clear to the Biden Administration that he will not impose his radical policies on Alabama athletes. He will not destroy athletic competition for our young women & girls. In Alabama our law protects girls sports.”
