Trans and Nonbinary Lawmakers: Biden's Title IX Proposal Is Unacceptable

Fourteen transgender and nonbinary state legislators have written a letter to President Joe Biden expressing concern about his administration’s proposed regulation regarding trans participation in school sports.

The Department of Education’s proposed rule, which does not require congressional approval but is subject to public comment before it becomes final, concerns the enforcement of Title IX of the Education Amendments of 1972, a law prohibiting sex discrimination in K-12 schools, colleges, universities, and other academic institutions that receive federal funding, as almost all do.

It would establish that policies “categorically” barring all trans student athletes from competing under their gender identity violate Title IX. However, it would allow for some exceptions. It “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 last week’s press release from the Education Department. “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.”

Numerous LGBTQ+ activists and organizations have objected to the allowance for exceptions, saying that simply enables anti-trans discrimination. In the letter, released Monday, the state legislators joined this chorus.

“To put it plainly, there is no such thing as an acceptable ‘compromise’ that limits transgender Americans access to equal rights,” the letter reads. “When it comes to policy addressing trans athletes, our stance is this: Trans athletes belong in sports. Full stop.”

It takes hard work for trans athletes to dedicate themselves to a sport and to succeed in it, the letter notes. “Their inclusion should be welcomed, and the successes of trans athletes should be celebrated,” it continues.

The signers call for revision of the rule with input from trans activists, lawyers, and legislators. The process “should begin with the presumption of full inclusion for transgender athletes,” they write.

“What I would say is think about intent versus impact,” Montana Rep. Zooey Zephyr told Vice News. “I think there is intent from the Biden administration to protect trans athletes, but you can’t reconcile that intent with the fact that this policy opens the potential pathway for discrimination.”

Across the nation, 20 states have adopted laws that either bar all trans students from competing under their gender identity or bar trans girls and women from female teams. Some of the laws deal only with K-12 public schools, sometimes including charter schools or private schools that play against public ones. Some address public colleges and universities as well.

The push to pass these laws has come in recent years even though very few trans students are participating in school sports. A small number have won championships, but trans athletes do not dominate school sports by any means. Anti-LGBTQ+ activists claim that trans girls and women have unfair advantages over cisgender females, but scientists and LGBTQ+ advocates say this is not the case.

Besides Zephyr, those signing the letter are Rep. SJ Howell, also of Montana; Reps. Gerri Cannon, Alissandra Murray, and James Roesener of New Hampshire; Reps. Leigh Finke and Alicia Kozlowski of Minnesota; Rep. Brianna Titone of Colorado; Rep. Sam Mantaño of Massachusetts; Rep. Emily Dievendorf of Michigan; Rep. Taylor Small of Vermont; Rep. Mauree Turner of Oklahoma; Rep. DeShanna Neal of Delaware; and Rep. Izzy Smith-Wade-El of Pennsylvania.

Numerous LGBTQ+ groups have praised the Biden administration for saying that overall bans on trans athletes violate Title IX, but they plan to work with the administration to assure that the final rule doesn’t allow for discrimination.

“The National Center for Transgender Equality applauds the Department of Education for acknowledging in this proposed rule that categorical bans on participation in school sports based on transgender status are inappropriate, unlawful, and fundamentally un-American,” said a statement from NCTE Executive Director Rodrigo Heng-Lehtinen. “We look forward to working with the Biden-Harris Administration to ensure that the final Title IX rule affords all students — including transgender, nonbinary, and intersex youth — respect, inclusion, and the right to have fun participating in sports with their friends without fear of discrimination. While there is still more to be accomplished surrounding this proposal, we appreciate the robust action of the Department of Education. NCTE looks forward to submitting public comments, as well as working alongside the administration to further remove these inappropriate barriers, allowing for equal participation by transgender youth.”

National Center for Lesbian Rights Executive Director Imani Rupert-Gordon released this statement: “Transgender youth are an integral part of every school across this country. We applaud the Department of Education for recognizing that the law requires that transgender students must be treated fairly and equally and as respected members of their school communities.”

Predictably, even with the limitations of the proposed rule, right-wingers are losing it.

"South Dakota will not allow this to stand," South Dakota Republican Gov. Kristi Noem wrote on Twitter. "President Biden, We'll see you in Court."