By Jo Yurcaba -
NBC News
The Department of Education proposed a rule Thursday about the growing number of states that have banned transgender student-athletes from competing on teams that match their gender identity.
[Supreme Court allows transgender girl to participate in girls' school team until ban is decided in West Virginia]
The proposal would change Title IX of the Education Amendments of 1972 – which prohibit discrimination based on a person's sex in federally sponsored education programs – by prohibiting, in part, blanket exclusions
of transgender girls and women from teams women's sports shoes, something that has become law in 20 states.
The measure, however, would allow some restrictions on some sports at higher competitive levels, such as high schools and
colleges
.
General exclusions of transgender girls and women from women's sports teams have become law in 20 states.Getty Images
The proposed regulation, which will be open for public comment for 30 days, indicates that programs or schools that adopt gender-related criteria "that limit or deny a student his choice to participate on a male or female team consistent with his or her identity as a gender" must meet two requirements.
"A categorical ban (...) that would exclude all transgender girls and women from participating in a female athletic team, for example, would not be consistent with the proposed regulation"
Dept. Official
of Education
First, the restriction must "be substantially related to the achievement of an important educational objective" and, second, it must "minimize harm to those students whose opportunity to participate on a male or female team consistent with their gender identity would be limited." or denied," the draft proposal stated.
"A categorical, all-inclusive ban that would exclude all transgender girls and women from participating in a women's athletic team, for example, would not be consistent with the proposed regulation because it would not take into account the nature of certain sports, levels of competition, or the educational level of the students to whom it would apply," a senior official with the Department of Education said at a news conference on Thursday.
Florida restricts sex reassignment medical care to transgender minors
March 17, 202300:36
The official said the department hopes that under this proposal, elementary school students would be able to participate in sports teams that match their gender identity, while schools could restrict some upper-grade transgender students from participating in sports. some cases.
[Fear in the trans community by the focus of the Nashville shooting on gender identity: "We are terrified," they lament]
"The proposed regulation would give schools the flexibility to identify their most important educational goals," the official said.
"These could include, for example, fairness in competition or the prevention of sports-related injuries. Some goals, such as disapproval of transgender students or the desire to harm a particular student, would not be considered educational goals. important".
The department said in a statement that its approach to the issue conforms to the instruction given by Congress in 1974 that Title IX regulations include sections that consider "the nature of particular sports."
Students protest in Florida against DeSantis' education policies
Feb 23, 202300:21
The statement also noted that many sports entities have developed participation criteria and that the National Collegiate Athletic Association (NCAA) last year adopted a policy on the participation of transgender athletes on a sport-by-sport basis.
The official who spoke to reporters Thursday, however, said
the department does not have an opinion on NCAA policy and would not advise a school to adopt an association's particular athletic policy
.
[Catholics Spent $4 Million to Find Out Which Priests Used Gay Apps Like Grindr and Report Them]
"A fundamental element in the proposed rule is the need for schools to give particular consideration to each sport and level of competition, grade level, and level of education, and cautions schools not to make a decision in a case without first considering it individually. "said the official.
The Lia Thomas case
The NCAA changed its policy amid a media firestorm created after Lia Thomas, a transgender swimmer at the University of Pennsylvania broke several records during a competition in December 2021.
Thomas became the first transgender woman to win an NCAA swimming championship last year.
Conservatives in some states used her victories to argue for legislation restricting the participation of transgender athletes.
University of Pennsylvania transgender swimmer Lia Thomas competes in the 200-meter freestyle at the NCAA Swimming and Diving Championships at Georgia Tech in Atlanta on March 18, 2022.AP
Efforts to restrict the participation of transgender athletes are part of a wave of nationwide legislation focused on the rights of LGBTQ people.
State-level lawmakers have introduced more than 450 bills this year that target the LGBTQ community, according to the American Civil Liberties Union and a separate group of researchers who track the flow of legislation.
[More than 100 bills target LGBTQ rights so far in 2023]
In addition to the 20 states that have passed laws on transgender athletes, another 14 have passed restrictions on transitional treatments for minors.
Asked by a reporter Thursday about how the Department of Education would enforce the rule on states that have already passed outright bans, the official said "federal civil rights is the law."
Transgender swimmer generates controversy with her triumph
March 21, 202202:45
The department would investigate, the official said, and in the past, when a violation of the law has been identified, school committees have chosen to abide by the rules.
"In the unlikely scenario that a school committee decides not to comply with the law, the tool that the department has is to initiate the withholding of funds and make sure that federal money is not invested in discriminating against students," the official explained.
The department hopes to have the measure ready in May.
Mixed reactions to the proposal
Reactions from LGBTQ and transgender advocacy groups were mixed.
Sasha Buchert, a senior attorney at Lambda Legal and director of the Nonbinary and Transgender Rights Project, said the proposal "includes a critical acknowledgment of the importance of transgender youth participation in sports and shows why 100% bans on the states are invalid".
"We are concerned about whether the proposed rule can appropriately eliminate the discrimination that transgender students experience due to widespread prejudice and ignorance about who they are," Buchert said in a statement.
Mother discovers that her daughter is transgender thanks to a school assignment
Jan 23, 202303:47
"Given how important participation in athletics is to students' educational experience, we look forward to providing feedback and working with the administration to remove the last remaining barriers of bigotry in the way of full and equal participation for transgender youth." .
Alejandra Caraballo, a transgender activist and clinical instructor at Harvard Law School's Cyberlaw Clinic,
called the proposal a "backward betrayal"
that will force transgender people "to have to spend our time deal with bloody sports instead of criminal bans on our health."
President Joe Biden "could [better] have done nothing," he said on Twitter.
"This is the legitimization of transphobia."
