Reactions run the gamut to the U.S. Department of Education's newly proposed Title IX athletics rule prohibiting blanket bans of transgender students participating on teams aligning with their gender identities.
On one hand, some liberal organizations are commending the administration's effort to protect transgender students.
“We welcome this guidance," said Randi Weingarten, president of the American Federation of Teachers, in a statement following the proposal's release Thursday. Weingarten added that the rule offers a "practical road map for schools and colleges to craft athletic policies and criteria for male and female teams consistent with Title IX.”
GLSEN, a leading K-12 LGBTQ advocacy organization, said in a statement that while it commends the proposal, "amid intensifying anti-transgender political attacks, we cannot count on good actors" to enforce it justly. GLSEN Executive Director Melanie Willingham-Jaggers said they hope the final rule will support the full inclusion of trans, nonbinary and intersex students in sports — which is far different than the current proposal.
On the other hand, conservative leaders and organizations have come out against the proposal. Sen. Tommy Tuberville, R-Ala., joined other Republican lawmakers in saying the rule adds to the administration's efforts to take "a sledgehammer to Title IX." Tuberville serves on the Senate Subcommittee on Children and Families, part of the Senate Committee on Health, Education, Labor, and Pensions.
The proposed rule, which could be finalized as soon as May, is now open for a 30-day comment period. Here are four takeaways from the Education Department's plan.
The limits took some by surprise
The rule would allow schools to limit or deny transgender students' participation on sports teams aligning with their gender identities in some cases, which came as a surprise to those expecting the administration to advance toward complete transgender inclusion.
"I am surprised that it isn't a more full-throated endorsement of transgender athletes playing alongside in accordance with their gender identity, rather than their biological sex," said Nina Gupta, a partner at law firm Parker Poe who routinely counsels school districts on Title IX matters. "Given sort of the unequivocal statement that the administration made in the other proposed rule that Title IX extends to gender identity, I'm surprised at how equivocal this rule is."
Gupta was referring to the Education Department's broader Title IX proposed rule last year that would offer LGBTQ students protection from sex-based discrimination for the first time. That proposal followed months of strong and consistent vocal support from Education Secretary Miguel Cardona for LGBTQ students, and specifically for transgender students. The final rule on that broader proposal is expected in May, after having garnered over 210,500 comments from the public.
Others were not as taken aback by the new proposal.
"The administration had issued a hint that the new regs would be consistent with the president’s executive order protecting LGBTQ+ rights, so not entirely a surprise," said Scott Lewis, co-founder and advisory board member of ATIXA, the Association of Title IX Administrators. "The centrist nature of the language is not surprising, as well."
Subjective terms could be left to districts to iron out
The language in the rule, which is just a one-sentence addition to the current regulations, includes terms that could be open to interpretation by districts and states.
For example, it would require schools that adopt sex-based criteria limiting or denying transgender student participation to ensure those terms "be substantially related to the achievement of an important educational objective" and "minimize harms" for transgender students.
"What is going to be considered an important educational objective? What is considered substantially related? What type of harm would be enough to balance against the objective?" asked Jackie Wernz, a former civil rights attorney for the Office for Civil Rights and a current partner at education law firm Thompson and Horton. "It's just a lot of subjectivity as to what the standards are."
As for "minimizing harms," the proposal also mentions respecting transgender students' privacy when creating athletic team requirements and standards. "And I just don't know what that ends up looking like," said Gupta.
These are all question marks that athletic directors, coaches, administrators, Title IX legal counsels and coordinators will have to iron out when implementing the final rule.
Effect on transgender students are unclear
Whether the proposal would ultimately help to include or exclude transgender students is up in the air. Some legal experts think the proposal includes language that would give schools the opportunity to exclude transgender students.
"I think schools will be able to take more confident measures in really tying birth sex to the teams that they play on," said Gupta. She added that while the rule does outlaw blanket bans on transgender athletes, schools could likely lean toward limiting transgender student participation in instances where competition and scholarship are at stake.
"I think absolutely the net effect will be more trans athletes are not gonna be able to play in alignment with their gender identity," Gupta said.
Lewis, however, said ATIXA's preliminary review of the rule suggests otherwise.
"In all but the most ardent religiously affiliated schools, student-athletes will be able to participate on the team or in the sport that matches their gender identity," said Lewis in an email. "Many states will likely still try to limit this access once the NPRM [Notice of Proposed Rulemaking] becomes a final rule and will likely fail."
While tailored bans are possible in theory, Lewis said, "almost none are likely to pass muster if reviewed by this OCR."
Narrowly tailored bans — or restrictions based on unfair competitive advantages that apply only to transgender girls on girls' sports teams, but not transgender boys on boys' teams — would be presumptively unconstitutional and discriminatory, Lewis said.
"The effect of the proposed rule would be a case-by-case ban, at most, aimed at the Lia Thomases of the world," said Lewis, referring to the swimming champion who won first place as a transgender woman competing on the University of Pennsylvania women's team. Even those bans could probably only be put in place after their competitive advantage is proven in competition, since bans prior to participation would only be speculative, he added.
Restrictions based on safety concerns would also be incredibly rare, according to ATIXA's preliminary review of the proposed rule. That's because, like bans based on competitive advantage, those restrictions could also not be speculative and would have to be put in place after an injury occurs.
Even then, such a ban could only be implemented if it's proven the athlete's gender identity led to the injury, and that a ban is the least restrictive means to prevent future injuries, said Lewis.
"Good luck trying to justify that."
Legal challenges considered likely
Regardless of its real-world impact, the rule — since it would explicitly bar blanket bans for transgender students — is likely going to be met with legal challenges from conservative states, many of which already have enacted such bans.
"Although there is no explicit preemption language in the draft, the final rule is clearly intended to preempt blanket state bans on trans participation in athletics," Lewis said. "Conservative states may respond by more narrowly tailoring statutes or by litigating against the final rule."
Currently, at least 20 states have policies restricting transgender students from playing on teams aligning with their gender identities, according to the Movement Advancement Project, which tracks the issue.
The issue has now reached Congress, with House Republicans preparing to set up a vote next week on legislation restricting transgender students from playing on women's sports teams. Rep. Virginia Foxx, R-N.C., chair of the House Committee on Education and the Workforce, has been vocal in supporting restrictions on transgender student participation on women's teams.
Upon passage of the legislation in the House subcommittee, Fox said, the bill was "a step in the right direction" after years of having "biological males infringe upon the decades of progress made by female athletes."
Ultimately, the question is likely to reach the U.S. Supreme Court. In a 2020 employment case, Bostock v. Clayton County, the high court ruled that discrimination against LGBTQ individuals constitutes sex discrimination under employment law.
However, it's possible that if the Supreme Court takes up a transgender student athletic case, justices could decide to include LGBTQ protections under Title IX except in the case of athletics. Justices could still choose to leave that up to the states to decide, said Lewis.