Biden proposal forbids US schools from outright bans on transgender athletes
The Biden administration has released a proposal that would forbid schools and colleges across the US from enacting outright bans on transgender athletes. But teams could create some limits in certain cases – for example, to ensure fairness.
If finalized, the proposal would become enshrined as a provision of Title IX. It must undergo a lengthy approval process, however, and it’s almost certain to face challenges from opponents.
“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination,” said Miguel Cardona, Biden’s education secretary, in a statement.
The Biden administration used “fairness of competition” as criteria, which has been part of the debate in the US and globally.
The move is an effort to counteract a wave of Republican-backed measures targeting LGBTQ+ rights, particularly the participation of trans athletes in school sports. The proposal must undergo a lengthy approval process, however, and it’s almost certain to face challenges. While opponents sharply criticized the proposal, some advocates for transgender athletes were concerned that it did not go far enough.
The proposal came on the same day that the US supreme court refused to let West Virginia enforce a state law banning trans athletes from female sports teams at public schools, one of many similar measures across the country.
The justices denied West Virginia’s request to lift an injunction against the law that a lower court had imposed while litigation continues over its legality in a challenge brought by a 12-year-old transgender girl, Becky Pepper-Jackson.
Two conservative justices, Samuel Alito and Clarence Thomas, publicly dissented from the decision.
The law, passed in 2021, designates sports teams at public schools including universities according to “biological sex” and bars male students from female athletic teams “based solely on the individual’s reproductive biology and genetics at birth”.
In the lawsuit, Pepper-Jackson and her mother Heather argued that the law discriminates based on sex and transgender status in violation of the US constitution’s 14th amendment guarantee of equal protection under the law, as well as the Title IX civil rights law that bars sex-based discrimination in education.
West Virginia said in a court filing that it can lawfully assign athletic teams by sex rather than gender identity “where biological differences be
tween males and females are the very reason those separate teams exist”.
Pepper-Jackson, who attends a middle school in the West Virginia city of Bridgeport, sued after being prohibited from trying out for the girls’ crosscountry and track teams.
Critics argue trans athletes have an advantage over cisgender women in competition. Last year, Lia Thomas became the first transgender woman to win an NCAA swimming title. College sports’ governing body, however, adopted a sport-by-sport approach to transgender athletes in January 2022, which was to bring the organization in line with the US and International Olympic committees, though recently the NCAA’s board decided it won’t be fully implemented until 2023-24.
At the same time, international sports-governing bodies are instituting policies that ban all trans athletes from competing in track and field and effectively ban trans women from swimming events.