Nine months have passed since the Biden administration proposed explicit civil rights protections for LGBTQ students, but there’s still no word from the administration on whether the protections apply to transgender athletes.
The U.S. Department of Education last June released proposed changes to Title IX, the federal civil rights law that prohibits discrimination based on sex, that would grant explicit protections for students based on their gender identity and sexuality.
At the time, the department said it would conduct separate rulemaking to address whether the landmark law applies to transgender athletes’ participation in school sports, but it has yet to announce further action.
Now, after 18 states have banned transgender athletes from participating in sports consistent with their gender identity, House Republicans have proposed a national ban after gaining a majority in the chamber after last year’s elections.
In February, Rep. Gregory Steube, R-Fla., introduced the Protection of Women and Girls in Sports Act, a one-page bill that would prohibit public schools from allowing transgender women and girls from participating in girls’ sports. It would amend Title IX to explicitly bar “a person whose sex is male” from taking part “in an athletic program or activity that is designated for women or girls.”
“Up until a few years ago, having women’s-only leagues was considered common sense,” Rep. Burgess Owens, R-Utah, said during a March 8 House Committee on Education and the Workforce meeting to propose amendments to Steube’s bill. “Allowing biological men to compete in women’s sports not only eclipses women but erases them from the winner’s circle altogether.”
The Human Rights Campaign has called the bill “discriminatory and harmful.” And other organizations, including the Leadership Conference on Civil and Human Rights, the American Federation of Teachers, GLSEN, the National Education Association, and the National Women’s Law Center, have expressed support for allowing transgender athletes to join teams consistent with their gender identity.
“A federal sports ban would alienate me from my community and prevent me from continuing to become a better version of myself,” Rebekah Bruesehoff, a 16-year-old transgender field hockey player and high school sophomore, said during a news conference hosted by the Congressional Equality Caucus before the March 8 committee meeting. “It would limit access to essential life skills that we want all kids to have, like grit, determination, and learning to work with others towards a common goal.”
The debate over the issue has left transgender athletes like Rebekah in limbo and forced them to navigate changing laws about their identity and existence.
Only 1.8 percent of high school athletes identify as transgender, according to a 2019 study from the Centers for Disease Control and Prevention. But 18 states have laws prohibiting them from participating in sports consistent with their gender identity, according to the Movement Advancement Project, an organization that tracks LGBTQ-related policies.
Little movement from Education Department
The changes to Title IX proposed in June would broaden the definition of sex-based harassment and discrimination to include gender identity and sexuality. That means schools would be required to allow transgender students to use bathrooms and locker rooms and participate in nonathletic activities that are consistent with their gender identity or risk losing federal funding.
The department collected over 200,000 public comments on the proposed changes, and is expected to review them as it finalizes the rules, but it hasn’t provided a timeline for that process.
The department, however, said the proposed changes don’t apply to athletics and announced that it would start a separate rulemaking process to tackle that issue. But the administration hasn’t provided a timeline for that process, either, or released any information about it since last June.
Department officials didn’t respond to requests for comment about the timeline.
While they are grateful for what the Biden administration has done so far, the lack of a final rule is frustrating for LGBTQ advocates.
“Just imagining the experience of young people and of families hearing the rhetoric come out of policymakers who are just misrepresenting who they are and the way they are in the world, it’s time for some leadership from the president that makes clear that this administration is committed to civil rights, committed to equal opportunity, and to Title IX,” said Liz King, senior director of education equity at the Leadership Conference on Civil and Human Rights. “We need a final rule now.”
The department’s Office for Civil Rights did release guidance on the application of Title IX to sports in February, but it does not include any information on how the law applies to discrimination based on gender identity or sexuality. Instead, it provides examples of situations at schools that would raise Title IX concerns, such as disparities in playing conditions for boys’ and girls’ teams.
If the Education Department explicitly said transgender youth can participate in sports consistent with their gender identity, Rebekah said such a move would affirm transgender athletes’ value to society and ensure their access to sports.
“Field hockey gives me so much—confidence, strength, and a place to belong,” she said during the March 8 news conference. “For me, it’s not just my sport, it’s my community.”
