Biden rule on transgender athletes would set conditions on school sports bans

The Biden administration will advance a rule to make it more difficult for schools to exclude transgender youth athletes from competition based on their gender identity, a senior U.S. Education Department official told reporters Thursday.

The proposed rule would prohibit blanket bans of transgender athletes competing in sports consistent with their gender identity. But it would allow schools to issue exclusions for particular sports and grade levels, if the school can show it has a particular need to do so and takes steps to minimize harms caused to anyone excluded.

Any exclusion must be “substantially related to the achievement of an important educational objective,” according to the text of the proposed rule the Education Department released Thursday. The rule would apply to any educational institution that accepts federal funding, essentially every U.S. public school.

“The proposed rule also recognizes that in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation,” according to a fact sheet.

The move comes as numerous Republican-led states have enacted bans on transgender athletes competing in sports consistent with their gender identity. South Dakota enacted a ban last year.

Kansas this week became the 20th state with such a ban, as the Republican-controlled Legislature overrode the veto of Democratic Gov. Laura Kelly. The legislation requires children to participate in school activities based on the gender they were assigned at birth, from elementary school to college.

And with a new super-majority in the North Carolina General Assembly, Republicans in the Tar Heel State introduced measures targeting transgender participation in sports.

Such bans would not appear to comply with the proposal, which requires that any exclusions based on gender identity are tailored to a specific sport and grade. Department of Education officials did not address what would happen when a federal rule conflicts with state law.

“A one-size-fits-all, categorical ban that includes all transgender girls and women from participating on any female athletic teams, for example, would not satisfy this proposed regulation,” the official, who spoke to reporters on the condition the official was not named, said Thursday. 

But the proposal would still provide schools broad discretion to define what qualifies as “an important educational objective.” Considerations such as competitive fairness or safety could qualify, the official said. 

If a school decided that an exclusion of transgender athletes was appropriate, it would need to identify on what basis it decided on the ban.

“It would need to have looked at the particular needs for the particular sport,” the official said. “It would need to have looked at the particular need for competitive fairness in the sport, if that is the issue that school is trying to address.”

The school would also have to ensure that whatever restrictions it put in place were minimized to those harmed by it, the official said.

Asked if the department thought the rule would avoid lawsuits from states that have threatened legal action if the federal government sought to force schools to allow transgender athletes in all cases, the official said the rule was written to comply with federal laws.

Differences in sports offered to different sexes are allowed under Title IX, the federal civil rights law that requires that schools receiving federal funding provide women equal access to educational programs, including sports. For example, some schools may exclude girls from a football team or boys from a volleyball team if the athletic department as a whole provides equal opportunities.

The U.S. House Committee on Education and the Workforce advanced a bill last month that would block transgender girls from competing in school sports consistent with their gender identity. It is expected to be passed by the Republican-controlled House, but likely won’t be taken up in the Democratic-controlled Senate.

Rep. Bobby Scott, the top Democrat on the committee, praised the proposed rule in a statement. 

“School sports offer invaluable life lessons—from leadership to teamwork—that every child in America should be able to access and enjoy,” said Scott, of Virginia. “To that end, the proposed rule ensures that school sports are, above all, fair and safe for our nation’s children.”

— South Dakota Searchlight staff contributed to this report.