Looking ahead to the inevitable litigation over a trans sports ban

The feds have weighed in.

The Department of Education on Thursday formally proposed a rule change to Title IX, the federal civil rights law prohibiting sex discrimination in schools, that would be at odds with anti-trans bills being signed into law and introduced in statehouses across the country.

The rule change would establish that categorical bans against transgender students joining sports teams that align with their gender identity violates Title IX. However, the proposed rule allows for competitive high school and college sports to restrict trans students’ participation if those schools follow guidelines laid out by the agency — particularly, to minimize harm for excluded students.

Currently, 20 states have passed legislation to ban trans students, especially transgender girls, from participating in sports that are consistent with their gender identity, according to the Movement Advancement Project, which tracks LGBTQ+ policy. Enforcement of multiple bans has been blocked in court through temporary injunctions.

The Education Department said in a news release that it expects that limiting transgender students’ participation in school sports at the high school and college level may be permitted in some cases, “when they enable the school to achieve an important educational objective, such as fairness in competition” and meet other agency requirements.

When schools create policies on trans’ students participation, they must follow certain requirements laid out by the agency: recognizing the importance of minimizing harm to excluded trans students, as well as acknowledging that sport-governing bodies have different participation criteria. School policies restricting trans’ students sports access must also take into account whether the sport is high or low competition, such as whether the team is open to students regardless of athletic ability. Students’ grade level should also be considered, since those in younger grades are often more focused on teamwork and fitness than competitive success.

The public will be able to comment on the proposed rule, which would apply to public K-12 schools and colleges that receive federal funding, for 30 days from the date of the rule’s publication in the Federal Register. A senior department official, who spoke to reporters on condition of anonymity ahead of the release of the rule, told reporters Thursday that she expects that publication to happen within the next few weeks.

The agency has a variety of tools to enforce and investigate Title IX violations, the official said — including evaluating records and interviewing school community members. Typically, schools choose to come into compliance when they violate Title IX, she said. But, in the unlikely scenario that a school declines to come into compliance with the law, the agency is willing and able to withhold federal funds.

As a reminder, the Texas Senate has already passed a bill to ban trans athletes from participating in collegiate sports – a restriction for high school and below is already in place – with the House likely to follow. Hold that thought for a minute. Also on Thursday, this happened.

The Supreme Court on Thursday allowed a 12-year-old transgender girl in West Virginia to continue competing on her middle school’s girls sports teams while a lawsuit over a state ban continues.

The justices refused to disturb an appeals court order that made it possible for the girl, Becky Pepper-Jackson, to continue playing on her school’s track and cross-country teams, where she regularly finishes near the back of the pack.

Justices Samuel Alito and Clarence Thomas would have allowed West Virginia to enforce its law against Pepper-Jackson.

Pepper-Jackson is in the middle of the outdoor track season. She had filed a lawsuit challenging the law, the Save Women’s Sports Act, which West Virginia lawmakers adopted in 2021. A federal appeals court had allowed her to compete while she appealed a lower court ruling that upheld the West Virginia law.

There are some legal technicalities about this, which I won’t get into. This particular ruling is unlikely to mean anything for SCOTUS when the case comes to them, but for now at least that law is on hold. Plenty of other states have been passing similar bans, with Texas on its way to doing so as well.

It should be noted that this new policy is seen as a step back from the Biden administration’s initial position of full support for transgender rights. Slate’s Mark Joseph Stern explains what’s going on.

Thursday’s proposal marks the Biden administration’s first effort to “compromise” on the rights of student-athletes. It is clearly designed to survive a legal challenge by locating a middle ground that grants protections to transgender students that are strong but not absolute. The rule is certainly a huge improvement from the Department of Education’s bigoted position under former President Donald Trump. But LGBTQ advocates expect much more of Biden, and any apprehension about the rule’s less-than-complete support for equality is understandable.

The proposed rule itself is just a few sentences long. It states that, when a school restricts trans students’ participation in athletics, it triggers Title IX’s ban on discrimination “because of sex.” Thus, the policy must “be substantially related to the achievement of an important educational objective” and “minimize harm” to trans students. Mere hostility toward transgender people, the agency clarified, does not qualify as “an important educational objective.” But “fairness in competition” and “prevention of sports-related injury” do. The policy must also be tailored “for each sport, level of competition, and grade”—meaning the across-the-board bans passed in 20 states are impermissible. (To be clear, it still lets schools to enact more expansive protections for trans athletes, so blue jurisdictions can continue to guarantee 100 percent equal access to school sports.)

As the Department of Education acknowledges, the new standard is drawn from the Supreme Court’s equal protection jurisprudence, which applies “intermediate scrutiny” to sex-based classifications. The agency’s new rule would apply a form of intermediate scrutiny to school policies that discriminate against transgender athletes, on the grounds that anti-transgender discrimination is a form of sex discrimination. (Many courts, including the Supreme Courthave agreed with this logic.) The proposed test would, in effect, balance transgender students’ interest in playing sports against cisgender students’ interest in “fairness in competition” and avoiding injury. (The rule is aimed at K-12 education; the NCAA has adopted separate policies for college athletes that seem to satisfy the agency.)

The oddity here is that Title IX’s text does not actually incorporate this kind of balancing. It simply bars schools from discriminating “on the basis of sex.” When courts have applied this principle to transgender students, they have declined to weigh competing interests, instead just asking whether the student faced discrimination because of their identity. That’s one reason why the new rule surprised so many trans advocates: As journalist Erin Reed noted, portions of the document provoke the fear that schools will seize upon well-worn pretexts to “balance” transgender students’ rights into oblivion. Furthermore, claims that trans athletes have unfair advantages and imperil cisgender girls are conservative talking points against transgender equality. It was startling to see such ideas in a proposal from the administration of Joe Biden, who has called transgender discrimination “the civil rights issue of our time” for more than a decade.

And yet, there are good reasons to adopt a more generous view of the new policy (while acknowledging that its rollout was borderline disastrous). GLAD, a renowned LGBTQ advocacy group, issued a statement “applaud[ing]” the proposal, praising the decision to let schools “adopt reasonable policies” that “take into account differences between sports and across levels of competition.” Shannon Minter, legal director of the National Center for Lesbian Rights, told me that the Department of Education did “a good job of setting out a proposed standard that is reasonable, protects the dignity and equality of transgender students, and permits only very limited restrictions in elite competitions,” with a “baseline presumption” of inclusion.

As for the Title IX rule, it’s way too early to say how it might play out. The only thing I feel confident saying is that there will be litigation once it is in effect. Just put a pin in all this and we’ll see where we are in six months or a year. The Trib and the Chron have more.

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