New Biden Admin Rule on Transgender Student Athletes Prohibits ‘Categorical Bans’

Transgender rights group members protest against an “Our Bodies, Our Sports” rally at the Freedom Plaza in Washington, D.C., on June 23, 2022. Terri Wu/The Epoch Times

The Biden administration on Thursday proposed a new Title IX rule that would make school policies illegal if they “categorically ban transgender students from participating on sports teams consistent with their gender identity.” The suggested regulation—a direct challenge to laws in about 20 states, including Texas and Florida—would apply to K-12 public schools, colleges, universities, and other federally funded institutions.

The new rule allows some restrictions on transgender student athletes based on grade or education level, and level of competition in individual sports, according to the released fact sheet by the Department of Education.

The document indicates that while collegiate sports primarily emphasize competitive success, lower-grade environments may prioritize teamwork, fitness, and fundamental skills.

“Taking those considerations into account, the Department expects that, under its proposed regulation, elementary school students would generally be able to participate on school sports teams consistent with their gender identity and that it would be particularly difficult for a school to justify excluding students immediately following elementary school from participating consistent with their gender identity,” the fact sheet wrote.

U.S. Secretary of Education Miguel Cardona stated in a press statement: “Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination. Being on a sports team is an important part of the school experience for students of all ages.”

“Today’s proposed rule is designed to support Title IX’s protection for equal athletics opportunity,” he added.

Some advocacy organizations see the new rules in the opposite light in that the Title IX rule change will allow biological males to compete in female sports.

Christiana Kiefer, a senior counsel with the Alliance Defending Freedom (ADF), wrote in an emailed statement to The Epoch Times: “The Biden administration’s proposed rules are a slap in the face to female athletes who deserve equal opportunity to compete in their sports. The Department of Education’s rewriting of Title IX degrades women and tells them that their athletic goals and placements do not matter.”

“When society and the law try to ignore reality, people get hurt. In sports, it’s women and girls who pay the price,” she added.

ADF, a conservative Christian legal advocacy group, currently represents several female athletes in multiple states, seeking the restoration of awards lost to biological male athletes and the halt of policies allowing males to participate in female competitive sports.

For LGBT advocacy groups, the new rule hasn’t come far enough.

“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,” said Sasha Buchert, a senior attorney at Lambda Legal. “These students must have full and equal chances to participate because participation in athletics provides many long-term benefits for young people, including important health benefits, and chances to develop leadership skills, discipline, and self-confidence.”

Sarah Marshall Perry, a senior legal fellow at the Heritage Foundation, speaks at the “Our Bodies, Our Sports” rally at Freedom Plaza in Washington on June 23, 2022. Terri Wu/The Epoch Times

In the fact sheet, the Education Department also mentioned participation rules established by sports governing bodies, such as the National Collegiate Athletic Association (NCAA). Although individual sports may have different participation rules, NCAA, in general, allows biological male athletes to join female competitions upon showing proof of one or more years of testosterone suppression treatments.

Sarah Parshall Perry, a senior legal fellow at the Washington-based think tank Heritage Foundation and a former senior counsel to the assistant secretary for civil rights at the Education Department, called the NCAA policy “laughably inadequate.”

“Let me be clear, one year of testosterone suppression therapy does nothing to change in any meaningful way the faster muscle twitch response, greater bone density, greater muscle mass, and higher lung capacity that biological boys possess when compared to girls,” said Perry during a recent testimony in Ohio. “Such biological distinctions, which give biological males a decided, if not overwhelming, advantage over females in athletic competition, cannot be suppressed, period.”

She cited a 2018 study (pdf) by two Duke University Law School professors. They compared Olympics champion Allyson Felix’s 400 meters lifetime best of 49.26 seconds to records of biological men. “Just in the single year 2017, men and boys around the world outperformed her more than 15,000 times,” the authors wrote.

According to a 2017 CDC survey of 10 states and several large urban school districts, fewer than 2 percent of high school students identify as transgender, and only a few of those students actively participate in school sports.

In a 2022 Washington Post poll (pdf), 55 percent of Americans opposed biological men and boys competing with women and girls in high school sports, and 58 percent opposed it in college and professional sports.