The Biden administration's proposed regulations, released in April 2023, took a nuanced approach. It would outlaw outright bans by states, but it would give schools a roadmap for how to ban transgender girls from competing in certain circumstances, particularly in competitive sports.
Nevertheless, issuing such a rule comes in an election year in which President Biden faces a close race against former President Donald Trump, who promised to ban trans women from women's sports if re-elected. There is a danger of pushing this issue too far.
“People close to Biden made a political decision not to move into athletics.” [regulation] “It's before the election,” said a person familiar with the administration's thinking. “It seems like it's being talked about too much.”
A second person also reported receiving the same message from the government. Both spoke on condition of anonymity to discuss private conversations.
Administration officials had no objection to the sports rules being postponed, but declined to comment on the specific timing or possible political motivations.
A senior Education Department official, who spoke on condition of anonymity to reflect internal thinking, said the major sex discrimination regulations were issued nine months before the sports proposal and are now in the final stages of review in the White House administration. It pointed out. budget. He said the ministry was “still considering” the sports regulation, noting that it had received an influx of 150,000 public comments, and said it “must be carefully considered by law.”
“The Biden-Harris administration is committed to ensuring an educational environment free of gender discrimination for all students,” a department official said.
The sports regulation is part of broader rulemaking underway regarding schools' obligations under Title IX, which prohibits discrimination on the basis of sex in colleges, universities, and K-12 schools that receive federal funding. be. The more comprehensive main rule, expected to be announced soon, will also cover other issues covered by Title IX, such as schools' obligations to investigate allegations of sexual harassment and assault.
The main Title IX regulation, proposed in June 2022, states that the prohibition against sex discrimination includes discrimination based on gender identity and sexual orientation. The administration has already said this is how it will interpret Title IX, but this is the first time it has been codified into a rule, giving it additional enforcement powers.
As proposed, schools would be required to allow transgender students to use restrooms that match their gender identity, prohibit bullying based on gender identity, and allow students to be addressed by the pronouns they use. It will be mandatory. Schools that do not follow these rules are subject to investigation and risk losing federal funding.
But in 2022, with midterm elections looming, the administration has vowed to separate sports issues from major regulations and address them with a separate proposal. Last May, the Ministry of Education announced that both would be released in October, but the deadline passed with no action taken.
In February, major Title IX regulations moved into final review at the White House, but sports regulations remain below. Currently being considered by the Ministry of Education.
The proposed sports rules, announced in April 2023, attempted to balance the rights of transgender students with concerns that other athletes would face unfair competition. While there would not be a blanket ban on transgender athletes, schools would be able to introduce narrower restrictions, taking into account factors such as the sport involved, the student's age and level of competition. Schools would also be required to demonstrate that their decisions are related to important educational objectives and minimize harm to others.
Advocacy groups are calling on the administration to finalize both rules. They argued that given state law currently in place, the two regulations needed to be promulgated together and soon. And while some transgender advocates complain that sports rules still allow discrimination, most argue that sports rules should be finalized to provide even more protection than they currently have. I'm looking for it.
“The administration cannot adopt a piecemeal approach in protecting LGBTQI+ students, especially in the midst of aggressive attacks on transgender and gender-expansive youth,” the statement said, focusing on women's and LGBTQ+ rights. A letter to Biden this month signed by more than 80 advocacy groups said: Access to abortion.
While Republicans in the state Legislature have enacted legislation banning transgender sports, the Republican-run House of Representatives has been working to pass federal legislation on the issue. Last April, the House of Representatives approved a nationwide ban on transgender women from competing on women's and women's teams. The measure has not been taken up in the Democratic-controlled Senate.Bill to ban transgender people The women athletes on the Olympic team passed the House Judiciary Committee on a party-line vote this month. Republicans made their case in part by highlighting some athletes' opposition to the presence of transgender athletes.
“The reality is that anti-transgender lawmakers are expanding their attacks every day,” said Caius Willingham, senior policy advocate at the National Center for Transgender Equality.
But while he supports finalizing the rules quickly, some say the Biden strategy makes political sense.
“Some say this is not a fight that needs to be fought before a major election,” said Ben Becker, senior vice president at Precision Strategies, who has worked with LGBTQ+ groups. “This is an issue that Republicans have weaponized. It's never going to be good if we just go after them and fight on their terms.”
Conservative opponents say both regulations should be repealed. because Title IX The prohibition against discrimination “on the basis of sex” should not be interpreted to include gender identity.
In a meeting last month with officials from the Office of Management and Budget, which oversees the final stages of the regulatory process, the conservative group Freedom and Defense Institute argued that even if sports regulations were to be reined in, key Title IX regulations would remain equivalent. He called for regulation. That's because the new rules redefine sex discrimination to include gender identity.
The proposed regulations would “require educational institutions to allow biological males who identify as female to participate in girls' and women's athletics,” the group said in a statement submitted at the meeting. This was argued in a memo. The group added that a state law passed to “protect the rights of biological girls and women” would trigger an investigation by the Department of Education.
The main Title IX rules would replace the rules currently in place that were enacted during the Trump administration and emphasize the rights of defendants against schools considering sexual harassment allegations. For example, it required court-style hearings to adjudicate charges and gave defendants the right to cross-examine their accusers. As a 2020 candidate, President Biden signaled his intention to replace this rule, and at the beginning of his term he directed the Department of Education to begin the painstaking process of reviewing and ultimately writing new rules. .
Biden's plan would not require a court-style hearing or cross-examination. The proposal also expanded the definition of sexual harassment to include any unwanted sexual conduct that creates a hostile environment by restricting or denying a student's ability to participate in school. The current Trump-era definition requires harassment to be severe and pervasive.
Biden version It would also include protection against pregnancy-related discrimination. Protections for abortion rights could be strengthened, or at least emphasized, because abortion rights have become a major political issue, according to people familiar with the plan.
