New Biden Trans Title IX Sports Regulations Feel Like A Betrayal

Biden's new Title IX regulations were just released on the heels of a win in the Supreme Court. These regs miss the mark and could be used to fuel more anti-trans sports bans.

The Biden Department of Education has issued new Title IX regulations permitting restrictions on transgender athletes, leaving many in the transgender community feeling betrayed. The new regulations detail numerous ways schools can ban trans athletes while remaining compliant with Title IX, alarmingly echoing right-wing talking points about scholarships and risk of injury. These regulations specify methods schools may employ to determine a student's sex, including invasive physical examinations. Although the administration will likely try to spin it as a nuanced approach, it will likely only add fuel to the fire of schools trying to ban transgender people from sports.

The new regulations emerged just hours after a substantial victory for transgender individuals in sports. Today, the Supreme Court delivered its first ruling on the recent wave of anti-trans legislation. West Virginia has tried to ban trans students from participating in sports, with a case currently being heard involving a young transgender girl in the state. Although a federal court has halted West Virginia's trans athlete ban, the Supreme Court listened to an appeal to temporarily reinstate the ban. In a significant 7-2 decision, Justices Barrett, Kavanaugh, and Gorsuch sided with the liberal justices, rejecting the appeal and marking a big moment for transgender rights.

However, the celebration for trans individuals was short-lived. Mere hours after the Supreme Court ruling, Biden's new Title IX regulations surfaced, appearing to include significant concessions to those opposing transgender participation in sports. While the regulations may also displease conservatives by not permitting outright bans on trans athletes, they leave issues like "concerns over scholarships" and "risk of injury" unaddressed and still allow for broad bans for various sports and grade levels. The regulations outline situations in which schools could likely ban trans individuals from sports, making the new Title IX proposal document resemble a guide on how to discriminate rather than a comprehensive protection for transgender people.

Though the policy document is 115 pages long, the actual rule spans just a single paragraph. Here is the new proposed rule:

Proposed new Title IX sports rule

Significantly, the rule does not categorically ban schools and states from enacting sports bans. In fact, the new rule allows for sports bans if they are “substantially related to the achievement of an important educational objective” and “minimize harms” to trans students who are denied or banned from sports. While it does not allow for blanket bans, it still allows bans for particular sports, grade levels, and more.

This concession would be significant enough, but the rest of the document is even worse. When discussing the scope of the rule, for instance, the document states that things such as gender markers on birth certificates, invasive “medical examinations,” and medical testing or treatments would all fall under the new rule. It does not ban the use of these tools, and in fact even seems to tacitly endorse them “as long as they minimize harm.”

See the relevant section:

Section seeming to allow for medical exams, birth certificates in determining student eligibility.

The document also allows right-wing talking points on transgender participation in trans sports to go unaddressed. In one section, it seems to state that students competing with trans students could be at risk of a loss of scholarships. In another, it talks about sports injuries when competing against trans students. It also states that bans in high school or college levels may be more likely to comply with the new regulations. While many other talking points are explicitly called out by the guidelines as likely in violation, these statements do not get similar callouts. For this reason, it may seem as if the Biden administration is giving a particular roadmap to schools on how to justify bans while still being in compliance.

These justifications are unfounded. There has been no significant number of trans people earning scholarships in recent years. In fact, if anything, transgender people are underrepresented in high school and collegiate sports. Transgender people have been allowed to compete in sports for decades with very few achieving any significant levels of victory. Meanwhile, up to 20 states have passed school sports bans for trans youth. These bans were explicitly used by the Alliance Defending Freedom and the American Principles Project to be a trojan horse for more restrictive trans laws. Allowing trans athlete bans as a Democratic Party position could give cover to further erode transgender rights.

This led to swift condemnation by some and calls for clarification by others. Representative Alexandria Ocasio-Cortez called the move “indefensible.” Harvard Instructor and transgender activist Alejandra Caraballo pointed out that it “legitimized transphobia.” Slate’s Mark Stern called the regulations extraordinarily disappointing. The ACLU’s Gillian Branstetter pointedly tweeted, “You cannot believe someone is illegitimately playing women's sports without believing they're illegitimate as a woman.”

Ultimately, the move is perceived as a betrayal by many who champion transgender rights. It signifies a retreat from Obama-era policy and may be employed to sway moderate Republicans to endorse trans sports bans in their states, possibly even winning over some right-leaning Democrats. The fact that the Biden administration unveiled these regulations just hours after a Supreme Court victory only intensifies the disappointment felt by numerous advocates. This unexpected regression comes at a time when transgender individuals are confronting more legislation against them than ever before in history.