Schools would have to take into consideration the age of the students and the type of sport, among other considerations, before enacting a ban on athletes playing on a team that matches their gender identity.
On Thursday, the Biden administration released a new proposal regarding the inclusion of transgender athletes in school sports and Title IX, allowing specified bans to take place but disallowing overarching bans on transgender athletes.
"The proposed rule affirms that students benefit from the chance to join a school sports team to learn about teamwork, leadership, and physical fitness. The proposed rule would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity just because of who they are," the Department of Education said.
The proposal states schools receiving federal funding that adopt rules barring transgender athletes from competing alongside the gender they identify as must, for each sport, level of competition, and grade or education level, show that this rule is "substantially related to the achievement of an important educational objective," and "minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied."
According to a Department of Education summary, they state that "One-size-fits-all policies that categorically ban transgender students from participating in athletics consistent with their gender identity across all sports, age groups, and levels of competition would not satisfy the proposed regulation."
The Department of Education stated that these bans "fail to account for differences among students across grade and education levels," "different levels of competition—including no-cut teams that let all students participate," and "different types of sports."
"Taking those considerations into account, the Department expects that, under its proposed regulation, elementary school students would generally be able to participate on school sports teams consistent with their gender identity and that it would be particularly difficult for a school to justify excluding students immediately following elementary school from participating consistent with their gender identity," the Department of Education wrote.
"For older students, especially at the high school and college level, the Department expects that sex-related criteria that limit participation of some transgender students may be permitted, in some cases, when they enable the school to achieve an important educational objective, such as fairness in competition, and meet the proposed regulation's other requirements," the department added.
The department stated that in earlier grades, like elementary school, students aren’t focused on competition, but rather "building teamwork, fitness, and basic skills for students who are just learning about the sport." Students in higher grades, like high school and college, on the other hand, "may be primarily focused on competitive success."
The proposal cited the 2020 Bostock v Clayton County Supreme Court decision in its process of creating the rule, which held "that discrimination based on sexual orientation or gender identity is sex discrimination under Title VII of the Civil Rights Act of 1964."
The proposal also noted Biden’s 2021 Executive Order "on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation," which said the administration’s policy would be “to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII [of the Civil Rights Act of 1964] and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.”
Subsequently, the proposal noted, Biden signed an Executive Order to ensure “that all students [are] guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity," which directed the Secretary of Education to review all regulations, orders, and policies for consistency with Title IX.
"As these Executive Orders directed, the Department extensively reviewed its Title IX regulations and policy documents for consistency with Title IX’s statutory prohibition on sex discrimination in federally funded education programs or activities. Based on this review and consideration of, among other things, substantial input from stakeholders, the Department published the July 2022 NPRM to amend its regulations implementing Title IX," the proposal states.
Public comment will be available for 30 days from the date of the publican in the Federal Register.
"Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination. Being on a sports team is an important part of the school experience for students of all ages," said US Secretary of Education Miguel Cardona.
"Beyond all the benefits to physical and mental health, playing on a team teaches students how to work hard, get along with others, believe in themselves, and build healthy habits that last a lifetime. Today's proposed rule is designed to support Title IX's protection for equal athletics opportunity. We welcome and encourage public comment on the proposed regulation and will continue working to ensure Title IX's effective protection for all students."
The proposal came the same day that the Supreme Court ruled that they would strike down West Virginia’s law that would require athletes to play on the team that matches their biological sex.
Across the country, states passed bills protecting women’s sports from male competitors in an effort to promote fairness and safety.
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