The Biden Administration Releases Proposed Title IX Regulations for Transgender Athletes

Schools are allowed to preserve sex-based restrictions for athletes provided they are "substantially related to the achievement of an important educational objective."

Last week, the Department of Education published new proposed regulations surrounding transgender athletes in schools and universities, laying out new rules that attempt to strike a balance between preventing discrimination against transgender students and preserving fair play for female athletes.

"Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination," Education Secretary Miguel Cardona said in a Thursday press release. "Being on a sports team is an important part of the school experience for students of all ages."

While the new rules bar schools from imposing outright bans on transgender athletes competing on teams that align with their gender identity, they do allow schools to preserve sex-based restrictions as long as the rules are "substantially related to the achievement of an important educational objective," such as fairness and physical safety and "minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied." However, the rules did not define what "minimizing harms" means—leaving it somewhat unclear what schools will be required to do to justify sex-segregated sports competition.

Despite vagueness, the proposed regulations would most likely allow transgender students to compete on the team of their choosing in elementary grades, when biological differences between male and female students are minimal, and sports are much more focused on character building rather than competition. Later on, schools will likely be permitted to exclude students who have gone through male puberty, as well as students who are taking testosterone, from participating on most women's teams.

While the Biden administration attempts to balance the conflicting rights of transgender athletes and female cisgender athletes, there is an asymmetry built into the new rules: Though schools are mandated to "minimize harms" against transgender athletes, they are nowhere compelled to factor in the same considerations for female cisgender athletes.

"Jamaica's Elaine Thompson-Herah, the fastest woman in the world, would lose to America's best high school boys, and the fastest pitch ever recorded by a woman would be unimpressive for many high school baseball teams," Washington Post columnist Megan McArdle wrote last year. "We didn't create separate leagues to reinforce the special feminine identity of female athletes; if anything, women's athletics was supposed to break down such divisions. The separation is a nod to biology."

While a desire to minimize discrimination faced by transgender students is admirable, this compromise is unlikely to provide clarity or a final resolution, largely because it fails to take seriously the reasons sports are segregated by gender in the first place.