On April 6, the Department of Education (ED) released a proposed rule under Title IX anti-discrimination laws to “clarify” the participation of transgender students in school sports. This new rule establishes that federally-funded schools may violate Title IX if they categorically ban transgender students from participating on sports teams consistent with their claimed gender identity, but it also offers some vague and narrow circumstances where banning transgender athletes could be acceptable.

On April 15, the ERLC filed public comments in opposition to the change. ED is obligated to respond to each comment before finalizing the rule.

 What is Title IX?

Title IX of the Education Amendments of 1972 prohibits sex-based discrimination in education, stating: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 

Title IX law is intended to provide equal opportunities for both men and women seeking to participate in educational institutions and extracurricular activities that receive federal funding.

How would this proposed rule change Title IX policies?

The proposed changes from ED would bar schools from implementing categorical bans on the participation of transgender students in sports inconsistent with their biological sex. The rule would force schools to implement policies unfair to athletes competing on teams consistent with their biological sex, placing female athletes at high risk of losing their personal privacy, competitive balance, and scholarship and award opportunities.

The stated intention of this proposed rule is to provide “clarity” for federally-funded schools, coaches, and parents on the participation of transgender students in grade school and high school sports. Under the proposed reinterpretation of Title IX, 

• “schools would not be permitted to adopt or apply a one-size-fits-all policy that categorically bans transgender students from participating on teams consistent with their gender identity.” 
• Any scholastic efforts to restrict participation based on gender identity must establish criteria “substantially related to the achievement of an important educational objective.” 
• The criteria must also “minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.” 

Little attention is given to any harms that could be placed onto biological female athletes through less fair and safe competition.

Contrary to ED’s statement, this rule fails to provide clarity on this issue and punishes schools who disapprove of Title IX’s ever-expanding definition of gender identity. To satisfy the department’s new criteria, local school districts may need to disregard policies that require disclosure of gender identity, as well as policies that require transgender students to participate on a sex-specific team matched with their biological sex. 

Why is this problematic?

ED’s proposed change would have sweeping effects that would significantly undermine the original intent and purpose of Title IX. By refusing to account for biological, sex-dependent differences, this regulation would legally enshrine inequality in sports, undermining the very law meant to secure gender equality in the first place.

Not only would this regulation work directly against decades of successful efforts to ensure equal athletic opportunity for men and women, but it would also completely blur the distinctions between men and women and their corresponding team sports. It is clearly unfair and demeaning to female athletes for our nation’s policies to proceed as if biological males are the standard by which they must evaluate their athletic performance.

Additionally, the proposed regulation constructs arbitrary criteria that only considers potential harms to transgender students, wrongly excluding deserving female athletes from the equation. The doctrine of the image of God must compel our leaders to protect dignity, rights, and opportunities for all people, including female athletes. This is not an either-or situation: schools can secure privacy and athletic opportunity for female athletes while still seeking to serve and love transgender students. Sadly, this proposed regulation fails to empower schools to achieve fully inclusive solutions that are right for their local community. 

The new interpretation of rules relevant to transgender athletic participation would penalize academic institutions that choose to protect female athletes. Schools under the jurisdiction of Title IX would no longer be able to define sex as a person’s biological sex from birth, but instead would be forced to adopt gender identity as the student’s sex for purposes of Title IX and its implementing regulations. Though the rule does provide some exceptions and circumstances where it could be deemed acceptable to ban transgender athletes, the exceptions are too vague and subjective to provide real guidance and protections to schools and administrators.

As we argued in our comments:

The exceptions articulated by the Department are as vague as they are hollow. The three factors enumerated are broad and highly subjective, open to vast interpretations from school to school. Yet, the Department’s subsequent commentary about the use of these factors renders the exception virtually useless. Any school or institution seeking to ensure that girls are physically protected as well as have equal access to fair athletic competition enshrined in Title IX, will undoubtedly face criticism and massive litigation costs for any exception they employ. It will be untenable for most schools to protect girls. Additionally, students themselves will be bounced around from team to team as school administrators, forced to comply with these untenable regulations and contend with impending lawsuits, do their best to navigate the subjective murkiness of this guidance.

How has the ERLC responded?

The ERLC has submitted public comments expressing these concerns about the proposed rule and urging ED to retract its policy. The ERLC will continue to monitor these changes and advocate for the recognition of God’s good design for biological sex and the flourishing of all our neighbors.