The Education Department is pursuing a rulemaking process to determine how schools decide eligibility for men’s and women’s sports teams – an announcement it made Thursday as it made public its proposal to expand the scope of Title IX’s protections against a backdrop of states limiting the participation of transgender athletes in competition.
Education Secretary Miguel Cardona said the decision was due to the fact that standards are “evolving in real time,” alluding to the growing number of states passing legislation that bans transgender girls and women from competing in sports.
“The department recognizes that the standards for students participating in male and female athletic teams are evolving in real time,” he said during a call with reporters. “That’s why we’ve decided to do a separate rulemaking on how schools may determine eligibility while upholding Title IX’s nondiscrimination guarantee.”
The issue is taking on a new urgency after the Education Department on Thursday announced its long-awaited update to federal Title IX rules banning discrimination based on sex in education. The new rules propose prohibiting discrimination based on sex to include discrimination based on sexual orientation and gender identity.
The National Youth Law Center has tracked nearly 200 state laws that have been introduced over the last year that would restrict teaching about gender identity, sex, racism, equity and other so-called “divisive” topics or roll back the rights of LGBTQ students and their families by not allowing them to use the bathroom or play on the sports teams that match their gender identity. And while most won’t get out of committee, GOP-controlled states are pursuing various versions of them at break-neck speed.
As it stands, 18 states ban transgender students from participating in sports consistent with their gender identity, according to the Movement Advancement Project, a nonprofit research organization.
“The trend of state bills excluding transgender students from athletics is a false solution in search of a nonexistent problem,” wrote the leaders of hundreds of civil rights and LGBTQ advocacy groups in an open letter published Wednesday. “For more than a decade, state athletic associations around the country have implemented eligibility policies that ensure transgender student athletes can compete consistent with their gender identity. Those inclusive polices have benefited all students, including cisgender girls and women.”
“There is no evidence that the participation of transgender girls and women has affected the level of play in states with inclusive policies,” they wrote. “Furthermore, girls’ athletics participation has increased or stayed the same in those states that have inclusive sports policies, while girls’ athletics participation has declined in states with discriminatory policies.”
Advocates worry about the timeline of a new rulemaking process, arguing that if Republicans win the House and Senate during the upcoming midterm election, they could use the congressional review process to undo regulations they deem an overreach of Title IX’s protections, which many congressional Republicans have already accused the Biden administration of doing.
“To fulfill Title IX’s promise in protecting all students, we urge the Biden administration to move quickly to affirm the ability of trans students to fully participate in sports,” Fatima Goss Graves, president of the National Women’s Law Center, said in a statement.
Education Department officials said there was no timeline for the rulemaking process related to eligibility for male and female sports teams.
