Biden admin releases new Title IX regulations on transgender issues in schools

Critics have argued that the Biden administration does not have the legal authority to make such a move

The Biden administration is rolling out new Title IX rules to expand the meaning of sexual discrimination to include gender identity that would prevent schools and colleges from banning transgender athletes.

Under the department’s proposed rule, no school or college that receives federal funding would be allowed to impose a “one-size-fits-all” policy that categorically bans transgender students from playing on sports teams consistent with their gender identity. Such policies would be considered a violation of Title IX.

“The U.S. Department of Education (Department) proposes to amend its regulations implementing Title IX of the Education Amendments of 1972 (Title IX) to set out a standard that would govern a recipient’s adoption or application of sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female athletic team consistent with their gender identity,” the Education Department wrote.

“The proposed regulation would clarify Title IX’s application to such sex-related criteria and the obligation of schools and other recipients of Federal financial assistance from the Department (referred to below as ‘recipients’ or ‘schools’) that adopt or apply such criteria to do so consistent with Title IX’s nondiscrimination mandate. ”

President Joe Biden speaks at the University of Tampa on Feb. 9, 2023.

President Joe Biden speaks at the University of Tampa on Feb. 9, 2023. (Joe Raedle/Getty Images)

In a press release, the administration said the “proposed rule affirms that students benefit from the chance to join a school sports team to learn about teamwork, leadership, and physical fitness.”

“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. 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. The proposed rule would provide schools with a framework for developing eligibility criteria that protects students from being denied equal athletic opportunity, while giving schools the flexibility to develop their own participation policies.”

The proposed rule sends a political counterpunch toward a wave of Republican-led states that have sought to ban transgender athletes from competing in school sports that align with their gender identities. If finalized, the proposal would become enshrined as a provision of Title IX, the landmark gender equity legislation enacted in 1972.

LGBT activists and their supporters rally in support of transgender people on the steps of New York City Hall

LGBT activists and their supporters rally in support of transgender people on the steps of New York City Hall (Drew Angerer/Getty Images)

It must undergo a lengthy approval process, however, and it’s almost certain to face challenges from opponents.

The plan has earned pushback from many conservative groups who argue the president does not have the legal authority to make the changes to Title IX.

“The Department does not have the legal authority to issue regulations that would subvert rather than fulfill the requirements of Title IX by permitting or requiring biological males who identify as females to compete in sex-separated women’s sports and to use the intimate facilities and shared spaces of female students … we anticipate that the coming rulemaking on athletics will similarly conflate gender identity with Title IX’s sex-based protections and degrade those very protections,” more than two dozen organizations wrote to Biden in a letter earlier this year.

Education Secretary Miguel Cardona has said that he supports allowing biological male transgender people to compete in women’s sports. He said during his confirmation hearing that it is “critically important” that educators and school systems “respect the rights of all students, including students who are transgender” and that all students should be able to participate in activities.

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