The Education Department on Thursday unveiled its proposed rule on athletics eligibility that bolsters transgender students’ rights to play on sports teams — but includes some limitations.
The proposal would bar schools from adopting or enforcing policies that categorically ban transgender students from participating on teams consistent with their gender identity. But the Education Department also added the caveat that “in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation.”
The rule is a rebuke to sweeping laws in at least 19 states that bar transgender women and girls from participating in sports consistent with their gender identity. Lawmakers in those states insist their laws are not meant to isolate transgender students, but to protect fair play in women’s sports.
When asked about how the rule would interact with state laws, a senior administration official said “the federal civil rights law is the law of the land.” Schools that choose to enforce categorical bans on transgender students from playing sports would risk losing federal funds.
“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination,” Education Secretary Miguel Cardona said in a statement. “Being on a sports team is an important part of the school experience for students of all ages.”
The administration’s rule also comes as House Republicans are expected to imminently bring their restrictive transgender sports bill — H.R. 734 (118) — to the floor for a vote. Dozens of women’s rights and gender justice advocates have been urging the Biden administration to quickly release the rule to combat this legislation and an onslaught of legislation in the states. But they wanted the White House to ensure all transgender students can fully participate in sports.
While the proposal is billed as a compromise, the rule may not go far enough for advocates on behalf of transgender students nor those who say allowing transgender students to play on sports teams compromises competition in women’s sports. The Education Department said the proposal takes into consideration “the importance of minimizing harms to students whose participation on teams consistent with their gender identity would be limited or denied.”
But the rule includes flexibility for schools to develop team eligibility criteria so long as it does not impose sweeping bans or is premised on the “disapproval of transgender students or a desire to harm a particular student.” A school must be able to show that its eligibility requirements “serve important educational objectives, such as ensuring fairness in competition or preventing sports-related injury.”
Additionally, the department acknowledged sports governing bodies vary in their participation criteria, and that school athletic teams vary in their level of competition and that there are differences when it comes to grade level.
The Education Department emphasized that under its proposed rule, “elementary school students would generally be able to participate on school sports teams consistent with their gender identity where considerations may be different for competitive high school and college teams.”
The department said the rule, which was promised last June, was created with input received during its public hearing, during which the Office for Civil Rights received more than 280 live comments and roughly 30,000 written comments.
The agency proposed Title IX regulation will be open for public comment for 30 days from the date of publication in the Federal Register. The department also said it is expecting to publish its final Title IX rule on addressing sexual misconduct in May.