Nearly two years after President Joe Biden told transgender Americans, “Your president has your back,” he’s made it clear that his supposed solidarity only goes so far. In a long-awaited proposed change to Title IX, the Biden administration announced Thursday that, though the sweeping laws banning trans children from competing on teams that matched their gender identity would not be imposed on any school sports receiving federal funds, individual schools could ban some trans athletes from competing on a case-by-case basis.
In 2021, the Department of Education announced a formal review of the way Title IX was enforced. The goal was ostensibly to come up with an interpretation of the law that protects transgender students from discrimination.
The proposal unveiled on Thursday, to put it mildly, does not meet that goal. Instead, under the cover of a ban on what it calls “one-size-fits-all” anti-trans policies, it makes explicit allowances for restrictions on trans participation in sports to ensure what it describes as “fairness in competition” and “preventing sports-related injury.” Even observers inclined to be generous to the Biden administration about the proposal acknowledge that it would allow for targeted bans against trans students, particularly in high school.
Whether this proposal takes effect as is or is changed significantly by the public comment period or in litigation, it’s important to understand these terms for what they are: transphobic talking points that have been honed and weaponized by anti-trans groups. They sound reasonable, but they are incredibly insidious—and now they are being used by a supposedly trans-friendly administration to justify its endorsement of anti-trans policies.
Title IX, because of the way it is written, allows for this kind of discrimination against transgender athletes, and transgender girls and women, in particular. That’s because when Title IX was passed, the need for its existence relied on arguments that there were biological differences between girls and boys, which created a need for separate divisions. It made the definition of “girlhood” reliant on a body, rather than on a concept of gender. These arguments, built into the very fabric of Title IX itself, allow for the protection of cisgender girls to be maintained at the expense of transgender girls.
The Biden administration had a chance to push against these realities. It didn’t take that chance.
Let’s examine the two concepts the DOE leaned on to justify the discrimination against trans kids. The first is “fairness in sports.” This is a red herring, an elusive and unattainable concept. Sports are inherently unfair. Anyone who ever competed against LeBron James or Michael Phelps was at a disadvantage because most people’s bodies cannot and will not ever be able to do what those athletes’ can. People with differing levels of access to equipment, coaching, time, and money are also starting behind.
When anti-trans groups harp on the issue of fairness, they are framing the issue in a misleading way. We need to be asking, fair to whom? When we think about fairness we should think about justice, which requires centering the most marginalized people in the room—and that is transgender women and girls. It is that group that we should be most concerned about including, rather than making rules at their expense.
The rule’s second anti-trans loophole, the supposed prevention of sports-related injury, implies that transgender women and girls are inherently bigger and stronger than cisgender girls, and that cisgender girls will be harmed if trans girls are allowed to compete. There is no evidence to support this. All sports come with the risk of injury, and a cis girl is just as likely to be injured by a larger cis girl as she is by a trans girl on the field.
The new regulations would, in theory, give the federal government more tools to block extreme anti-trans rules. But determining whether a school or a government is in violation of Title IX can be a complex and arduous path involving multiple state and federal agencies and years of court cases. In most Title IX situations, individual schools are making individual calls that go unchallenged.
This reality means that whatever broad-based protections the government is claiming to have backed, in practice trans kids across the country will still be vulnerable to the whims of transphobic teachers, coaches, or communities. The idea that the same forces that have moved so viciously to exclude trans people from all walks of life will apply the supposedly sensible rules the Biden administration is proposing in good faith—rather than using them to be just as extremist as ever—is laughable.
The Biden administration has capitulated to well-worn anti-trans talking points, ones that transgender advocates have spent years trying to dismantle. These arguments, which transphobic groups frame as “protecting girls,” actually put our most vulnerable girls at risk by harming trans girls. If you want to protect women and girls, you need to be protecting all women and girls, not just the ones you deem worthy of protection, and not at the expense of the group of people most likely to be the victims of discrimination and violence.
The government has also, inadvertently or not, aligned itself with the goals of the Women’s Sport Policy Working Group, a group made up of former Olympians, including Nancy Hogshead and Martina Navratilova, that has been pushing for stricter (read anti-trans) regulations at the educational level. In allowing that there are some instances where it is appropriate to discriminate against trans students, the government has wound up echoing Caitlyn Jenner, whose new Fairness First PAC’s stated goal is to “protect our children by rejecting radical gender ideology in our schools and in youth sports.”
What is perhaps most demoralizing about the response to this proposal is that, in an effort to fall over themselves to applaud the Biden administration for coming out against sweeping bans, so many queer rights organizations have failed to acknowledge the fact that case-by-case discrimination will still be allowed.
“We applaud the Department of Education for issuing a rule that affirms the importance of giving transgender students the chance to play sports,” Jennifer Levi, senior director of Transgender and Queer Rights at GLBTQ Legal Advocates & Defenders (GLAD), said. “With this proposal the Department is recognizing the importance of fair and equal treatment for transgender student athletes.”
The Trevor Project lauded the fact that the “proposed rule makes it clear that the 20 state laws categorically prohibiting transgender young people from participating in school sports violate federal law,” adding that “nobody should be denied the opportunity to be part of a team just because of who they are.” This despite the fact that the proposal would allow for just that.
Meanwhile, the National Center for Lesbian Rights “applaud[ed] the Department of Education for recognizing that the law requires that transgender students must be treated fairly and equally and as respected members of their school community.”
One of the only LGBTQ+ advocacy groups to acknowledge the potential harm of this proposal was Lambda Legal. Sasha Buchert, Lambda Legal senior attorney and director of the organization’s Nonbinary and Transgender Rights Project, said, “We are concerned about whether the proposed rule can properly eliminate the discrimination that transgender students experience due to the pervasive bias and ignorance about who they are.”
Perhaps the most damning assessment of the proposal came from Scott Skinner-Thompson, a professor at the University of Colorado School of Law. Speaking to The Washington Post, Skinner said, “When it comes to the hard cases, this is saying that trans kids can be discriminated against.”
That’s exactly right—and it’s exactly why these proposals are so disturbing. It’s one thing to say you’re going to stand against broad discrimination. It’s another to say you’ll back trans students as they try to live out the very specific circumstances of their lives in peace and dignity—even when it’s “hard.” The rules are being framed as a commonsense “compromise”—but there can be no compromise about people’s fundamental human rights.
Trans athletes’ participation in sports is not a threat to anyone, but the attempts to ban trans people from fully participating in public life are absolutely a threat to the health, well-being, and outright existence of transgender Americans. In allowing space for continued discrimination against trans students, the Biden administration has placed itself firmly on the wrong side of history.