Apologies for yet another transgender thread, but this one has significant impact. Kudos to the Biden Administration for striking a balance that considers the rights of transgender students, fairness for cisgender individuals, court precedents, and flexibility for local determination. The article is well-written. Is the Biden administration really turning against transgender students? (slate.com) When Joe Biden’s Department of Education unveiled a proposed rule on Thursday regulating transgender students’ participation in school sports under Title IX, the announcement prompted two wildly different articles in the nation’s leading newspapers. The Washington Post reported that, “as a practical matter,” the regulation “would side with those who have opposed the inclusion of transgender athletes in high-profile cases.” (The paper later removed this sentence in a stealth-edit.) The New York Times, by contrast, led with the fact that the new rule would “prevent schools from enacting across-the-board bans,” though it would “block some transgender athletes” at a school’s “discretion.” Who’s right? The New York Times is closer to the truth, but the reality is that it’s probably too soon to say how the rule will play out. 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 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 Court, have 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 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 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 Court, have 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 and 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. Minter added: Given the relentless attacks on transgender people that have escalated over the past two years, it is understandable that some advocates are braced to fear the worst and concerned that the rule might be misinterpreted or misapplied to permit discrimination. But the Department’s explanation in the preamble to the proposed rule is very clear not only that blanket bans are unlawful, but that any restrictions must meet a stringent test and would pass muster only in the context of elite competitions. That is likely the intent of the policy, as reflected through Thursday’s notice. The Department of Education stressed over and over again that an “educational objective” may not be “a pretext for an impermissible interest in singling out transgender students for disapproval or harm.” Moreover, schools may not “rely on overbroad generalizations that do not account for” the sport, “level of competition,” and grade of participants. Reading between the lines, the agency appears to think its rule will always protect students in elementary and middle school, where competition is less fierce and physical differences less pronounced. Only in high school will the proposal leave room for the (hopefully rare) exclusion of trans students. For this rule to function in a manner that really promotes “fairness,” the agency is going to have to enforce it vigorously and consistently. In particular, it will need to shoot down inevitable efforts to dress up bigotry in the guise of an “important educational objective.” Before all that, however, the administration is going to have to defend this regulation in court—and there is news on that front, too: In a probable coincidence, the rule came out shortly after the Supreme Court refused to reinstate West Virginia’s blanket ban on transgender participation in school sports, with only two dissents. That order may have had more to do with West Virginia’s poor litigation strategy than the merits of the case. But it does raise the possibility that a majority of justices might believe that Title IX imposes some limits on trans sports bans. If that’s the case, we can expect that the conservative justices will want some limiting principle to ensure that their decision does not create unfairness against cisgender students. Perhaps the best that can be said of the Department of Education’s proposal is that it establishes such a principle, however imperfectly, and seeks to create a standard that both the courts and the public view as sensible and equitable. Whether it fully succeeded is very much an open question. LGBTQ advocates have every right to be worried about the answer.
Disingenuous loser reporting from Slate spreading bs conspiracies. The rule *ADDS* protections for title 11 because the courts asked them to explain their policy. The status quo before was allowing republican states to set up whatever standards they wanted. The administration set up strict standards for states to meet for then to apply such restrictions. No school can meet the burden of proof the administration set up. It's a way to fight back against trans rights in red states
The rule is an attempt to balance several factors. It's not the red state rule where no trans person can compete no matter what stage of transition they're in and no matter when that happened. And the rule is not some blue states where you can compete on any team even if you just chose to identify the day before. So it's actually trying to do some balancing and of course, everyone is unhappy and everyone will sue. I actually think that the rule would be something simlar to what courts would eventually rule on, so it was probably easier to just leave it to the courts and have the wild wild west of trans law making until then. Because the courts may have ruled that high school pro trans laws would violate Title 9 and while elementary schools anti-trans laws would not, and perhaps violate equal protection. It's just always messy.
It's not the courts responsibility to make policy. It's the elected officials position to make policy nd judges can rule on that authority. The administration responsibility is to lay out its view of title 9 in relation to trans folks. Judges should not make policy. The funny thing is all the Major trans organizations are hailing the rule as it gives them Major protection in red states where most of the discrimination is happening.
Reminds me a bit of the gay marriage nonsense. A good compromise would be to remove sports from school and focus on STEM.
Title 9 kinda sucks and this just makes it worse, but I have no idea how WaPo somehow misconstrued this as anti-trans, lol.
The regulations leaves it up to the school to make the final determination but sets parameters they need to meet? What nuance would you want them to have?
This is where the executive branch steps in with regulations to fill in the gap. I don't see this a terrible partisan regulation - it's trying to balance different factors. It's a very tough subject, but some people are just very unwilling to negotiate their positions out of stubborness, lack of humility, values, whatever.
I generally agree because the courts are already full and need discretion just to manage their caseload. That stated, we have a very anti-executive administrative action federal judiciary right now (last 10 years). Many judges were super quick to pull the nationwide injuctions on Trump, and currently it's the other way with many conservative judges against Biden. Even if the executive branch is trying to act in good faith, there will plaintiffs challenging all the decisions, which was why I kind of figured the Biden Admin should stay out of it, because the courts were going to interpret the intersection of Title 9, equal protection, and parents' rights anyways.
Having been a college coach and an architect working on schools ive dealt directly with IX. Having a coaches a trans individual I was bound by title IX and the school’s own policies to allow them to compete under the gender of their choice. That said I agreed already and would’ve let them compete anyway without the regulations. Fear of injuries from a disproportionate physical ability is a legitimate fear and a few years ago i my opinion was more aligned to they there were innate physical differences and that the transitioning process wouldn’t address those. The more I studied those and looked at actual results I’ve changed my opinion that those might not be as bad as many are starting. In a sport like mine where there are weight classes teh advantages aren’t as pronounced and with the trans competitor she didn’t dominate her division against women nor in practice sparring against men her same weight. As I’ve also noted several times Lia Thomas did see an improvement in standings but is far from dominating or coming close to WR times. For that matter her times diminished from before her transition. Finally there just aren’t enough trans people to threaten women’s sports. Studies show that only 0.6% of people in the US identify as trans. https://williamsinstitute.law.ucla.edu/publications/trans-adults-united-states/ Out of that many fewer actually transition and even fewer are competitive athletes. There simply isn’t enough trans to actually be a threat to women’s sports. To Title IX and the new Biden rule I agree it is a blunt instrument and for now I think the new Biden rule gives some leeway. My own position has been for the leagues to decide and if this new rule gives that flexibility then it’s a good thing. Yes this will not appease everyone particularly those who want blanket bans of trans competitors but given the volatility of the issue there should be room for flexibility.
On a personal note I’m debating trans issues but these aren’t one of my top issues. I think there are many other issues more important. I’m only spending time on them becaue one I enjoy debating but also because it seems like I’ve somehow gotten a rent free space in few others heads.
Why are elementary sports even mentioned? There aren't trans elementary students and most elementaries don't have competitive sports teams.
Lia Thomas went from being ranked in the hundreds as a man to being the NCAA champion. She also intends to try out for the women’s Olympic team. She already beat the world Silver Medalist to win her NCAA Championship as a woman. She also recently said rulings concerning transgendered athletes will hurt all women. As for transgendered people in the USA, 5% of young people identify as trans or non binary; about 10% the number of older adults. You can respect someone identifying there gender as something other than their sex and still recognize the scientific fact that sex isn’t really debatable and there are inherent advantages and disadvantages to each sex. I don’t disagree there are a number of people standing up for female rights that likely don’t really care because it is politically advantageous to them - but it doesn’t change the larger point.
