Federal

A Flood of Public Feedback Has Delayed a Title IX Change Covering Trans Athletes—Again

New rules would clarify that Title IX bans discrimination based on sexuality and gender identity, and prohibit categorical bans of trans athletes
By Libby Stanford — September 20, 2023 5 min read
Isaya S. waves out the window of a Seattle Public Schools bus while participating in the annual Seattle Pride Parade on June 25, 2023, in Seattle.
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It may be some time before schools have to adopt the Biden administration’s changes to Title IX, which would directly challenge 23 state laws prohibiting transgender athletes from playing sports on teams aligned with their gender identity.

The administration has been at work for more than a year on a rewrite of rules detailing how schools should follow Title IX, the federal law that bans sex discrimination at K-12 schools and colleges that receive federal funds. The changes the administration has proposed would explicitly expand Title IX’s protections so they apply to discrimination based on sexual orientation and gender identity.

But it’s unclear when schools will see final rules from the U.S. Department of Education.

After delaying the release of the finalized rule changes in May, the Education Department identified October as the new expected deadline. But as of Sept. 20, the agency hadn’t submitted the rule to the Office of Management and Budget, the agency that reviews every proposed rule before it’s finalized.

Once that’s submitted, the office has 90 days to review it, but a looming government shutdown may lengthen that timeline.

A department spokesperson said that the proposed rule changes generated a historic number of public comments and that department officials are “working overtime” to ensure all comments are reviewed and taken into consideration.

“We are utilizing every resource at our disposal to complete this rulemaking process as soon as is practicable,” the department said in a statement. “In the meantime, we continue to enforce Title IX consistent with existing law that protects students on the basis of sex, including LGBTQI+ students.”

But a delay could further complicate matters for school administrators, athletic coaches, and students, as a growing number of state laws target nonbinary and transgender students’ ability to play sports, use restrooms, and go by pronouns and names consistent with their gender identity.

“There’s continuing, growing resistance to LGBTQ+-inclusive Title IX interpretation,” said Elana Redfield, the federal policy director at the Williams Institute, a University of California, Los Angeles, research center focused on LGBTQ+ issues. “Getting [the rule] out there is going to be really important.”

What the rule would do

The Education Department released an initial proposal for a Title IX rule change in June 2022. At the time, the department sidestepped the hot-button issue of athletics and instead proposed regulatory language explicitly stating that Title IX’s anti-discrimination protections apply to discrimination on the basis of sexuality and gender identity.

Nearly a year later, in April 2023, the department released another proposed rule that would prohibit schools from banning all transgender athletes from participating in sports consistent with their gender identity. Instead, it would allow schools to prevent a transgender student from playing if doing so affected competitive fairness, safety, or any other stated objectives of the sport.

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Mae Keller, a senior, carries a "Trans Kids Matter" sign and cheers as hundreds of students walk out of school on Transgender Day of Visibility outside Omaha Central High School on March 31, 2023 in Omaha, Neb. Students are protesting LB574 and LB575 in the Nebraska Legislature, which would ban certain gender-affirming care for youth and would prevent trans youth from competing in girls sports, respectively.
Mae Keller, a senior, carries a "Trans Kids Matter" sign and cheers as hundreds of students walk out of school on Transgender Day of Visibility outside Omaha Central High School on March 31, 2023 in Omaha, Neb. Students are protesting LB574 and LB575 in the Nebraska Legislature, which would ban certain gender-affirming care for youth and would prevent trans youth from competing in girls sports, respectively.
Anna Reed/Omaha World-Herald via AP

Neither proposed rule change has yet been finalized.

In the meantime, the list of states with laws banning transgender youth from playing sports has grown to 23, according to the Movement Advancement Project, an organization that tracks policy issues impacting LGBTQ+ people. Five of those states passed laws this year, with Missouri and North Carolina passing their laws in June, after the Biden administration released its proposed Title IX rule on transgender athletes.

“All trans kids are affected by this. At the younger ages, across the board, most trans kids are affected, and then as you get more to the college age, fewer are affected,” Redfield said, noting that a small number of transgender youth play college sports. “But it still creates a really uncertain environment for everybody.”

The finalized rule would throw all of those laws into question and likely lead to court challenges across the country to determine the legality of bans on transgender athletes playing sports consistent with their gender identity.

The case for a continued delay

The sooner the finalized Tiltle IX changes are released, the sooner educators and students will have more certainty about where the law stands, said Sasha Pudelski, the advocacy director at AASA, The School Superintendents Association, but that doesn’t mean the transition will be easy.

The proposed rule changes will likely require staff training and communication with parents and community members. Some school boards will have to update policies and handbooks. Those changes are difficult to make in the middle of a school year, Pudelski said.

“As the implementation date moves back further and further, it builds the case for having a school district implementation take place over the summer, which would be the ideal time when you can really update handbooks and have meaningful discussions with educators,” she said.

Many districts will also have to grapple with legal conundrums, in which state law conflicts with federal regulations. Until those battles play out in court—or in the unlikely scenario that Congress steps in in the near future to clarify Title IX’s protections—districts will be in a precarious place legally.

See Also

Ember, an 18-year-old transgender girl, plays softball for her team in Ohio. If passed, an Ohio bill would prohibit Ember from playing girls' sports.
Ember Zelch, a transgender girl, plays softball for her high school team in Ohio. A bill in the state's legislature would prohibit trans girls from playing girls sports in school.
Courtesy Photo

“There’s a lot of open questions as to what implementation will look like, whether it will vary from state to state, for example, based on how litigation moves forward,” Pudelski said.

Politics also plays a role in the timing, she added.

“If you look at how controversial these policies around transgender student-athletes are in some communities, I don’t know that Biden would want to be throwing that political football around,” she said. “It’s really close to the election and certainly summer is pretty close to the election.”

But even without the rule changes finalized, the Biden administration’s interpretation of Title IX has been clear from the beginning, the Williams Institute’s Redfield said. So schools shouldn’t have to wait for the changes to be finalized to include transgender youth in activities, she said.

“There have already been really clear directives from the federal government about how Title IX should be understood,” Redfield said. “Regardless of what we’re going to see in that final rule, I think we’re going to see that it’s consistent with the Biden administration’s messaging that trans people and LGBT kids are going to be covered.”

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