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Biden administration proposes allowing some anti-trans sports discrimination in schools

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The Department of Education (DOE) has proposed a rule change that would allow K-12 schools and universities to limit the participation of transgender athletes in sports while also forbidding schools from completely banning trans athletes altogether.

The proposal is intended to promote “fairness in competition” and strike a compromise between trans advocates and those who support the trans athlete bans that have been passed in 20 states. The proposal will first undergo a 30-day public comment period before being changed or going into effect. However, LGBTQ+ community reactions have been mixed.

The proposal would generally allow trans elementary school students to play on sports teams matching their gender identities. However, higher school levels could ban trans students from certain sports if they claim it’s to preserve “fairness” or avoid the possibility of sports-related injuries. If a school does ban trans students from a sport, it must try to “minimize harms” by providing other participation opportunities, the DOE said — a vague condition that could be interpreted many ways.

Schools would have to choose how to apply these restrictions on a sport-by-sport basis by assessing student ages, competition levels, and the individual sport. For example, a high school might allow trans girls to compete on a non-varsity volleyball team but forbid them from playing on a varsity girls’ wrestling team.

If a school bans trans athletes completely, it would constitute a violation of Title IX, a law that prohibits sex discrimination at schools that receive federal funding. Such violations could trigger an investigation and revocation of such funding, the proposal warns.

“Participation in school athletics is an important component of education and provides valuable physical, social, academic, and mental health benefits to students,” the DOE said in a press release. “The proposed rule would provide schools with a framework for developing eligibility criteria that protects students from being denied equal athletic opportunity, while giving schools the flexibility to develop their own participation policies.”

The proposed rule change was applauded by the National Center for Lesbian Rights (NCLR). NCLR Executive Director Imani Rupert-Gordon wrote, “We applaud the Department of Education for recognizing that the law requires that transgender students must be treated fairly and equally and as respected members of their school communities.”

However, the Human Rights Campaign said the proposed change still violates Title IX protections against gender discrimination.

HRC President Kelley Robinson wrote, “Every student deserves to be treated with dignity and respect. This includes transgender girls of all ages and in all sports, without exception. The new rule should be clarified to ensure that all transgender students should be presumed eligible to participate in sports consistent with their gender identity. This moment we’re in is truly a crisis for transgender young people – and we’re calling on elected leaders at every level of government to fight harder for our kids.”

LGBTQ+ ally Rep. Alexandria Ocasio-Cortez (D-NY) slammed the proposal on Twitter, writing, “Absolutely no reason for the Biden admin to do this. It is indefensible and embarrassing. The admin can still walk this back, and they should. It’s a disgrace.”

The issue is likely to remain a divisive one. A June 2022 NPR/Ipsos poll showed that 63 percent of Americans oppose allowing trans girls and women to compete on teams aligning with their gender identity, while 24 percent overall support it.

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