Biden administration prohibits anti-trans sports bans, but will allow exceptions

Silhouettes of people in the transgender flag colors
Transgender image by Gerd Altmann

The Biden administration announced a new rule that would prohibit categorical bans of transgender and non-binary students from competing on their school’s sports teams based on their gender identity. While this proposed rule would prohibit blanket bans over a person’s gender identity, it would allow exceptions in certain cases for a school to restrict a transgender student from athletic participation.

The United States Department of Education released a Notice of Public Rulemaking(NPRM) on April 6 that states Title IX protects transgender students from discrimination when it comes to school athletics. Additionally, the NPRM notes that states that ban students from participating in school sports teams run afoul of federal law.

“The proposed rule would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity just because of who they are,” described in the Department of Education’s press release.

This proposed rule will be open for public comments for the next 30 days before being implemented. During this public comment period, the rule could be amended before coming into effect.

Mixed reaction from LGBTQ organizations

Among LGBTQ organizations, this new rule has received mixed reactions, with both praise and concerns being raised. “This proposed rule includes critical recognition of the importance of participating in sports for transgender youth and shows why 100% of the state bans are invalid,” said Sacha Buchert, a senior attorney, and director of Lambda Legal’s Nonbinary and Transgender Rights Project. “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.”

Twenty states have proposed and passed bills that ban transgender students from playing on school sports teams that are consistent with their gender identity. The Movement Advancement Project documents the states that bar transgender students from participating in their school’s sports teams. Some of these bans, though are currently being challenged in state and federal courts.

New Jersey is no exception to anti-trans sports ban proposals

Even New Jersey is no exception to anti-trans sports bans being proposed. Back in November 2022, State Republican lawmakers proposed the Fairness in Women’s Sport Act or S589. This bill would’ve allowed genital checks by a student’s physician if that student’s identity was in dispute. The aim of the bill was to prevent transgender girls and women from participating in school athletics on teams that aligned with their gender identity. S589 was not passed into law and is expected to never get to a vote any time soon.

Because of the NPRM from the Department of Education, such similar legislation in other states that have been already passed would be rendered invalid.

“State lawmakers take note — discriminating against transgender athletes is wrong and a violation of federal law,” stated Kelley Robinson, President of the Human Rights Campaign, in a press release. “Every student deserves to be treated with dignity and respect. This includes transgender girls of all ages and in all sports, without exception.”

Where criticism rises with the proposed policy is that while schools would be prohibited from adopting “a one-size-fits-all policy” that bans transgender students, the Department of Education outlined that it “expects that sex-related criteria that limit participation of some transgender students may be permitted” for certain cases concerning older students. The press release also stated that “differences in grade and education level, level of competition, and sports must be taken into account for any eligibility criteria” when it comes to possibly restricting a transgender or non-binary person from participating in their school’s sports team.

Schools could use gender markers and physical exams to “limit or deny students’ eligibility” when it comes to participating on a sports team consistent with their gender identity.

For example, the criteria to limit or deny “a student’s eligibility for a male or female team” could include looking at the sex or gender marker of that student’s license or birth certificate.

While the Department of Education’s proposal emphasizes to “minimize harms” for transgender students, some LGBTQ organizations are asking for greater assurance and commitment. “The new rule should be clarified to ensure that all transgender students should be presumed eligible to participate in sports consistent with their gender identity,” said Robinson. “This moment we’re in is truly a crisis for transgender young people — and we’re calling on elected leaders at every level of government to fight harder for our kids.”