The Education Department proposed a rule Thursday in connection with the growing number of states that have banned transgender student-athletes from participating on school sports teams that align with their gender identities.
The department's proposed rule would change Title IX of the Education Amendments of 1972 — which prohibits discrimination based on sex in federally funded education programs — by, in part, prohibiting blanket exclusions of trans girls and women from female sports teams, which have become law in 20 states.
The measure would, however, permit some restrictions in certain sports at more elite levels of competition, such as in high school or college.
The proposed regulation, which will be open for public comment for 30 days, says programs or schools that adopt 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" must meet two standards.
First, the restriction must "be substantially related to the achievement of an important educational objective," and, second, it must "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 the draft of the proposed rule.
"A one-size-fits-all categorical ban that excludes all transgender girls and women from participation on any female athletic team, for example, would not satisfy the proposed regulation because it would fail to account for the nature of particular sports, levels of competition, or the greater education level of students to which it would apply," a senior Education Department official said at a news conference Thursday.
The official said the department expects that elementary school students would be able to participate on school sports teams consistent with their gender identities under the proposed rule, while schools might choose to restrict the participation of some trans students in higher grade levels in certain cases.
"The proposed regulation would give schools flexibility to identify their own important educational objectives," the official said. "They might include, for example, fairness in competition or preventing sports-related injuries. Some objectives, like the disapproval of transgender students or a desire to harm a particular student, would not qualify as important educational objectives."
The department said in a statement that its approach fits with Congress’ direction in 1974 that the Title IX regulations include reasonable provisions that consider "the nature of particular sports."
The statement also noted that many sports governing bodies have developed participation criteria and that the NCAA adopted a sport-by-sport policy for transgender athletes' participation last year. The official who spoke to media Thursday, however, said that the department does not take a stance on the NCAA policy and that it would not advise a school to adopt a particular athletic association's policy.
"A key element of the proposed rule is a need for schools to have particularized consideration for each sport and level of competition and grade or education level, and I would caution any school about taking something off the shelf without offering that particularized consideration," the official said.
The NCAA changed its policy amid a media firestorm ignited after Lia Thomas, a trans swimmer at the University of Pennsylvania, broke multiple records at a meet in December 2021.
Thomas went on to become the first trans woman to win an NCAA swimming championship last year. Conservatives in some states used her wins to argue in support of legislation to restrict trans athletes' participation.
Efforts to restrict trans athletes' participation are part of a nationwide wave of bills targeting LGBTQ rights. State legislators have introduced more than 450 bills targeting the LGBTQ community this year, according to the American Civil Liberties Union and a separate group of researchers who are tracking the flow of legislation.
In addition to the 20 states that have passed trans athlete laws, 14 have passed restrictions on transition-related health care for minors.
Asked by a reporter Thursday how the Education Department would enforce the proposed rule against states that have already passed categorical bans, the senior department official said, "Federal civil rights law is the law of the land."
The department would investigate, the official said, and in the past, when it has identified legal violations, school committees have elected to come into compliance.
"In the unlikely scenario that a school committee declined to come into compliance with the law, the tool that the department has is to initiate fund withholding and to ensure that no federal dollars are spent to discriminate against students," the official said.
The department plans to have the rule finalized in May.
Reactions from LGBTQ advocacy groups and trans advocates are mixed.
Sasha Buchert, a senior attorney for Lambda Legal and the director of its Nonbinary and Transgender Rights Project, said the proposal "includes critical recognition of the importance of participating in sports for transgender youth and shows why 100% of the state bans are invalid."
"We are concerned about whether the proposed rule can properly eliminate the discrimination that transgender students experience due to the pervasive bias and ignorance about who they are," Buchert said in a statement. "Given the importance of the opportunity to participate in athletics to students’ educational experience, we look forward to submitting comments and working with the administration to further remove those remaining bigotry-based barriers to full and equal participation by transgender youth."
Alejandra Caraballo, a trans advocate and clinical instructor at Harvard Law's Cyberlaw Clinic, called the proposal a "backwards betrayal" that would force trans people "to have to spend our time dealing with god damn sports instead of criminal bans on our healthcare."
President Joe Biden "could have just done nothing," she said on Twitter. "This is legitimizing transphobia."