The Department of Education released a new regulatory proposal for Title IX on Thursday that will curb a number of state laws requiring athletes to compete based on their biological sex if the rules are finalized in their current form.
The proposed regulation, which now enters a 30-day public comment period, requires schools to allow students in elementary grades to compete in sports programs and activities based on their gender identity and curtails attempts to restrict participation based on biological sex in order to comply with Title IX. For older students, especially high school and college athletes, the department said some sex-specific restrictions could be acceptable.
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“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,” Secretary of Education Miguel Cardona said in a statement. “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 regulations, if finalized in their current form, would create a clash between the Biden administration and numerous states, including Florida, Kansas, and Wyoming, that have enacted laws requiring students to compete based on their biological sex, regardless of their gender identity. Proponents of those laws, which have been passed almost exclusively by Republicans, say they are necessary to ensure fairness in athletics, especially women’s sports programs.
The new regulations, while banning sex-specific requirements for elementary-aged programs, allow some flexibility for schools to adopt sex-based eligibility criteria for high school and college sports programs.
“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 said in a press release. “Such bans fail to account for differences among students across grade and education levels. They also fail to account for different levels of competition—including no-cut teams that let all students participate—and different types of sports.”
For older athletes, the proposed rule says that in order to implement sex-specific eligibility criteria, schools must be seeking to satisfy “an important educational objective” and “minimize harms” for student-athletes that would be barred from competing based on their gender identity.
To satisfy these requirements, the rule says schools must consider the “nature of the sports” when crafting restrictions and that restrictions could vary based on the differences between sports. Schools must also consider the competitive level of the program when restricting athletic participation.
The proposed rule comes nearly a year after the department announced that it would undergo a separate Title IX rulemaking process for athletics when it unveiled its main Title IX regulation in June of last year. That rule, which is expected to be finalized in the coming months, rolled back several changes to the application of Title IX enacted by then-Secretary Betsy DeVos and the Trump administration. The most significant change was expanding the Title IX ban on sex-based discrimination to include gender identity.
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Conservative activists were quick to criticize the department’s newly proposed regulation. In a statement to the Washington Examiner, Nicki Neily, the president of the parent activist group Parents Defending Education, said the new rule would have the functional effect of requiring schools to allow biological males to compete in women’s sports programs at all levels because school districts would err on the side of allowing transgender athletes to compete based on their gender identity.
“The Biden Administration is trying to have their cake and eat it too: inject gender identity into athletics while placing the onus upon school districts to determine whether doing so would be problematic or not,” Neily said. “Without a doubt, institutions are going to err on the side of ‘inclusion,’ because they fear the wrath of the Education Department — thus, achieving the Department’s end goal while maintaining plausible deniability that they coerced districts into doing so.”
