Under proposed federal regulations issued Thursday, schools are not allowed to adopt wholesale bans on transgender athletes that keep them from participating on teams that align with their gender identity.
Under proposed federal regulations issued Thursday, schools are not allowed to adopt wholesale bans on transgender athletes that keep them from participating on teams that align with their gender identity.
Instead, the U.S. Department of Education has given schools flexibility to adopt policies based on grade, sport, and level of competition in order to give opportunities to transgender students while recognizing the need to ensure fairness and prevent sports-related injuries.
“One-size-fits-all policies that categorically ban transgender students from participating in athletics consistent with their gender identity across all sports, age groups, and levels of competition would not satisfy the proposed regulation,” according to a release issued by the department Thursday.
The U.S. Department of Education’s ruling comes just a day after Kansas became the 20th state to impose restrictions on transgender athletes. Like the laws in many other Republican-led states, Kansas’s ban preventing transgender girls from competing on women’s teams came amid other legislation and proposed laws curtailing the rights of transgender individuals.
W. Scott Lewis, managing partner with TNG Consulting and a member of the advisory board of the Association of Title IX Administrators, said in an email Thursday that the U.S. Department of Education’s rule — if it becomes final — would supersede any state law, as it is a federal regulation. But he said that the rule would likely be challenged in court.
During a call with reporters Thursday, a senior department official said in response to a question about state bans that the “the federal civil rights law is the law of the land” and the department expects all schools to comply. If the department is made aware of schools possibly violating the law, it will investigate. If it determines there is a violation, and the school declines to come into compliance, the official said, it can withhold federal funds to “ensure that no federal dollars are spent to discriminate against students in school.”
The department’s release notes that across-the-board bans “fail to account for differences among students across grade and education levels. They also fail to account for different levels of competition — including no-cut teams that let all students participate — and different types of sports.”
An example given by the department notes that transgender students in elementary school would generally be able to participate on teams based on the gender with which they identify, because sports at that level are focused on “building teamwork, fitness, and basic skills.” As students get older and the stakes get higher in high school and college where issues of fairness in competition become more of a factor, schools may institute certain criteria that limit participation of some transgender students, according to the proposal.
