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Here’s how the Biden administration plans to fight trans sports bans

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After two years of coordinated efforts among conservative state legislatures to ban trans student-athletes from competition, the federal government is finally settling on a response.

The Biden administration will attempt to use an amendment to Title IX – the Department of Education’s longtime anti-sex discrimination remedy– as the cudgel to deny red state lawmakers the ability to discriminate against student-athletes who want to play sports on teams that align with their gender identity.

It’s been a long time coming.

In several interviews with LGBTQ Nation, trans advocates expressed frustration with the pace and precept surrounding the proposed changes, some arguing that while they’re hopeful the end result is successful, the exercise came to define the old adage, “The perfect is the enemy of the good.”

A lot of kids got hurt in the overly long process, advocates claim, as a record 21 states have banned trans participation in school sports, and the federal government was left with no coordinated response.

Now supporters are hopeful that young adults and kids in lower grades will have the tools to overturn those far-reaching bans and get back onto the field and into the pool, or wherever they want to play.

The proposed new rule reads:

“If a recipient [the educational institution] 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.”

The proposed rule was announced April 6, after a years-long process of drafting language among stakeholders. Public comment on the text of the proposed rule ended Monday.

According to the Department of Education, the new language mimics a common standard applied to other successful Title IX challenges for determining whether state laws and public school rules that treat people differently based on sex violate the Equal Protection Clause of the U.S. Constitution.

The analysis presumes that sex-based classifications are unlawful unless they meet a stringent test proving they serve important governmental objectives and are substantially related to the achievement of those objectives.

In recent lawsuits challenging state sports bans for trans athletes, courts have applied this test in determining whether such bans violate the Constitution. So far, the courts have found that they do.

In April, the U.S. Supreme Court rejected a West Virginia court’s request to reinstate a blanket ban on trans athletes in competition based on that test.  

While the text of the new rule makes the argument more explicit — adding language around “educational objectives” — not everyone agrees the changes go far enough in fighting the blanket bans already in place.

“The Biden Administration’s proposed rule properly affirms that these bans violate Title IX,” Rep. Mark Pocan (D-WI), chair of the Congressional Equality Caucus, told LGBTQ Nation. “If properly interpreted and enforced, this rule would also severely restrict the ability of schools to limit opportunities for transgender students to participate in school sports.”

“I hope the Department will make this clearer when they finalize the rule, and also make explicit what’s already implicit,” said Pocan. “That Title IX requires schools to start from a presumption that all students can participate in school sports consistent with their gender identity.”

But just as the new rule makes clear that an outright ban on transgender student-athletes would be unconstitutional — if precedent holds — it also leaves room for exceptions to a blanket “everyone plays” policy.

When it comes to college sports in particular, a first determination on who plays and under what conditions would fall to the National Collegiate Athletic Association.

Shannon Minter, a trans lawyer with the National Center for Lesbian Rights, thinks that’s an important compromise.

“There have always been some medical requirements for transgender women to compete on women’s teams in elite NCAA competitions,” says Minter. He adds, “That’s always been the case. And it makes sense in that context.”

Asked about outright bans on trans athletes from the NCAA, Minter responded: “Unfortunately, we’ve seen some already: so wrong, so unfortunate, so unfounded. However, I think this proposed rule, if it becomes the final rule, gives a great basis to challenge any of those categorical bans.”

At the National Center for Transgender Equality (NCTE), spokesperson Ash Orr characterized the new rule as a natural evolution addressing gender in sports, bringing two major tenets of Title IX together.

“Since Title IX’s implementing regulations were first issued in 1975, it has allowed, but not required, schools to have gender-separated sports teams. It has also required that schools provide equal opportunity in their sports programs. This is the first time the Title IX rules would address these students’ eligibility to participate in sex-segregated athletic teams.” 

One thing NCTE will be looking for is clarity on what actions institutions would be required to take to “minimize harms to students” whose opportunities to play would be “limited or denied.”

Those harms inflicted by blanket bans are having a measurable effect on trans kids, Kasey Suffredini, VP for Advocacy and Government Affairs at the Trevor Project, told LGBTQ Nation.

When asked about policies that would ban trans athletes from school teams, 64% of transgender and nonbinary youth said it made them feel angry, 44% felt sad, 39% felt stressed, and one in four felt scared.

“Being told that you cannot participate in an activity, or even enter a space because of who you are can be incredibly damaging to a young person’s mental health and sense of self. We must reject blanket bans and afford trans young people the same opportunities as their peers to lead happy, healthy, and full lives,” Suffredini said.

The Department of Education says about 20% of state athletic associations currently allow students to participate in the sport that aligns with their gender identity without condition. Another 25% allow students to participate if they meet eligibility requirements for participation, and about 20% require students to meet additional criteria in order to participate. 

The remaining third have “adopted a range of policies imposing criteria that severely limit most or all transgender students from participating on male or female athletic teams consistent with their gender identity,” according to the Department. That’s the cohort this change is aimed at.

Two weeks after the Biden administration unveiled the new draft language, House Republicans voted their own change to Title IX, which would make it a violation for schools to allow “a person whose sex is male to participate in an athletic program or activity that is designated for women or girls.”

“Sex,” the amended language read, “shall be recognized based solely on a person’s reproductive biology and genetics at birth.”  

President Biden has vowed to veto the legislation in the unlikely event it passes the Senate and reaches his desk.

According to Rep. Pocan, “Anti-equality politicians who’ve never done anything to address gender inequities in school sports are trying to categorically ban these kids from playing on teams with their friends as part of their larger anti-LGBTQI+ agenda.”

Just like all students, he adds, “Trans kids deserve the opportunity to participate in school sports and learn valuable lessons like teamwork, sportsmanship, and hard work.”

Added the Trevor Project’s Suffredini: “Nobody should be denied the opportunity to be part of a team just because of who they are.” 

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