Last year, Education Commission of the states released a blog post detailing the landscape for transgender student athletes. Since then, the Movement Advancement Project has found that three more states have established policies that require students’ participation in athletics to be based on sex assigned at or near birth, bringing the total to 21 states with these policies.
On April 6, the Biden Administration released proposed rules on Title IX and their interpretation of Title IX for transgender student athletes’ participation in athletic competition. The proposed rules are subject to public comment and revision prior to the release of the final rule. The final rule may also be subject to congressional review depending on the timing of its release. On April 20, the United States House of Representatives passed H.R. 734, which would amend Title IX to define sex as based upon a “person’s reproductive biology and genetics at birth” and would prohibit individuals whose sex was assigned as male from participating on an athletic team for individuals whose sex was assigned as female. President Biden has stipulated that he would veto the legislation if it were to pass the Senate.
The Biden Administration’s interpretation of Title IX would allow transgender student athletes to participate in sports based on their gender identity with consideration for students’ age, level of competition and the individual sport’s status as a contact sport. However, these criteria may also be used by local education agencies and states to limit athletic participation to sex assigned at birth under certain circumstances.
The proposed rules interpret Title IX to prohibit blanket bans on transgender athletes’ participation in athletics based on gender identity. It also notes that limitations on transgender athletes’ participation in athletics based on gender identity may be targeted if:
- Circumstances are substantially related to the achievement of an important educational objective.
- They minimize harms to students impacted by these policies.
The proposed rules do not specifically describe what will be considered an important educational objective, but they do offer examples of when participation based on gender identity may be limited or restricted. The proposal also reiterates that schools are permitted to offer assigned sex-specific athletic teams and are not required to offer a sport for males and females. Likewise, the proposed rules affirm the ability to restrict participation in athletics to sex assigned at birth even if there is no corresponding team for the other sex assigned at birth.
Contact Sports and Injuries
The sport a prospective athlete is interested in playing is one criterion that may influence how limitations can be implemented. Contact sports may be more likely to implement assigned sex-based participation restrictions although the proposed rules do not specifically define which sports are deemed contact sports. The proposal also says that prevention of sports-related injury may be considered an important educational objective.
Age and Competition Level
The proposed rules stipulate that a student’s age is another factor that must be determined when considering athletic participation policies that align eligibility to a student’s sex assigned at or near birth. It notes the importance of competition for team sports, especially for high school and collegiate sports. The rules also note the academic, and social and emotional benefits of participation in athletics and that sports for younger students are less about competition and more about teamwork, discipline, social skills and physical fitness. The proposed rules explain how some sports’ governing bodies delineate between elite competition eligibility and eligibility for younger participants and/or non-elite level competitions.
Most enacted bills linking athletic participation eligibility to sex assigned at or near birth do not include a sport-specific distinction for limitations or prohibitions on participation. The policies have typically stated that athletic teams must be male, female or coed. Most of the bills also have not included age-specific criteria when determining participation eligibility based on gender identity. Enacted legislation typically provides legal protections for LEAs that follow these policies and permits a cause for action against LEAs that permit athletic participation based on gender identity.
The Biden Administration has taken the stance that Title IX offers antidiscrimination protections based on sexual orientation and gender identity. In the coming months, the Biden Administration is expected to release its final rule related to reforms to Title IX regulations. As states continue to take policy action related to transgender athletes’ participation in sports, ECS will continue to monitor and report on the intersection of these policies and the recently released proposed rules.