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It is the first time that the government has substantively interfered in the charged debate. The proposal would also prevent schools from issuing blanket bans.
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1530(Video) Biden proposes using Title IX to stop blanket bans on transgender athletes
VonSarah Mervosch,Remy TuminAndAva Sasani
The Biden administration on Thursday proposed a rule change that would allow schools to bar some transgender athletes from competing on sports teams that match their gender identity. However, the proposal would also prevent schools from issuing blanket bans.
Under the Ministry of Education's proposal, it would be a violation of the "categorical" ban on transgender athletes in this wayTitle IX, which prohibits sex discrimination at educational institutions that receive federal funding.
But it would give universities and K-12 schools discretion to limit participation by transgender students if they concluded that including transgender athletes could undermine competitive fairness or potentially lead to sports-related injuries, a major one part of the debate about itTransgender athletes in women's sports.
It is the first time that the government has substantively interfered in the highly charged debate. The Department of Education said the proposal was intended to "advance the long-standing goal of Title IX to ensure equal opportunity in athletics" and provide "much-needed clarity" about how public schools and colleges and universities should approach a contentious issue.
It will certainly not close the door on disagreement.
According to the proposal, elementary school students should be able to take part in school sports according to their gender identity. But at more competitive levels, including high school and collegiate sports, issues of physicality and fairness could place restrictions on transgender athletes.
The Ministry of Education pointed out that schools would have to self-assess the age of the students and the level of competition and the type of sport. The effects can be different in athletics and badminton, for example.
The proposal must go through a phase of public comment. Once it goes into effect, a senior Education Department official said, the federal government will stand ready to investigate and enforce violations -- up to and including withholding federal funds if necessary.
Conner McLaren, a transgender field hockey player at her high school in central Ohio, completed two tests at school Thursday before hearing the news. "It's exhausting," she said, that such a rule is needed at all. Adding, "I find it ridiculous that President Biden has to step in to tell states to stop bullying trans children."
Her mother, Melissa McLaren, added: "It's so annoying that the legislature is trying to legislate her when all she really wants to do is sing 'Pitch Perfect' on the bus to out of town games and throw up after too many burpees .”
However, some transgender rights advocates worried whether the proposal could open the door to future discrimination.
"People trying to ban trans people from participating would absolutely try to do that broadly," said Sasha Buchert, senior attorney at Lambda Legal, an L.G.B.T.Q. civil rights organization. They "would make the same arguments — whether we're talking about a 6-year-old playing soccer or someone playing varsity volleyball."
Lambda Legal was involved in representing a transgender girl who wanted to compete on girls' cross country and track teams in West Virginia.which the Supreme Court approved on Thursday.
Ms. Buchert, who is transgender, expected the new Biden administration rule could pave the way for a number ofDiscrimination Complaints from Parents and Families, challenging school districts. "It would be really helpful to understand how the department will be investigating these," she said.
Conservatives and critics were quick to jump on the news, arguing the Biden administration wasDestruction of women's sport.
"Good luck — that's not going to fly in Florida," Manny Diaz Jr., Florida's education commissioner, said in a statement. “We will never allow boys to play in girls' sports. We will fight this hyperbole tooth and nail. And we will stop at nothing to uphold the protections afforded to women under Title IX.”
According to polls, a majority of Americans oppose iton the participation of transgender women and girls in women's sections.
As it stands, 20 states have laws on the books preventing transgender students from participating in sports that conform to their gender identity.nach Movement Advancement Project, a think tank focused on gay, lesbian, bisexual, and transgender parity.
Those laws would not be immediately reversed by the Biden administration rule, Dr. Elizabeth Sharrow, associate professor of public policy and history at the University of Massachusetts Amherst.
dr Sharrow expected a new spate of litigation over the interpretation of the rule, as well as new legislation that could seek "to circumvent the space the regulation allows for exclusion."
The final rule applies "as long as the current government is in office," said Dr. Sharrow. "We could ask all of these questions again with a different government that has a different political agenda at stake."
The new proposal comes as transgender issues are becoming more important - in sport and in politics - even if the actual number of transgender athletes remains small. About 1.4 percent of 13-17 year olds and 1.3 percent of 18-24 year olds identify as transgender, compared to 0.5 percent of all adults,according to a new report from last yearwhich was becoming increasingly popular with young people.
The proposal appeared to have no immediate impact on elite collegiate sport. The proposed rules recognize that the National Collegiate Athletic Association decided last year to make its rules sport by sportessentially guidelines to followestablished by the main national and international governing bodies. The rules vary depending on the sport.
For example, World Athletics, the governing body for athletics, announced last month that transgender women who have gone through male puberty will no longer be allowed to compete in women's events at international competitions.
FINA, the world governing body of swimming, essentially hasBanned transgender womenfrom the highest levels of international women's competition. The governing body's proposal creates an "open category" of competition to "protect competition fairness".
The move last year took place just three months laterLia Thomaswas the first transgender woman to earn an N.C.A.A. Division I Swimming Championship Women's 500 Yard Freestyle. Ms Thomas has said she hopes to qualify for the US Olympic team in 2024 but the FINA ruling would prohibit that.
Riley Gaines, who is with the N.C.A.A. competed against Ms. Thomas. Championships, is among those arguing that the Biden administration's proposal would undermine the purpose of Title IX. "We want to protect the female category of sport," said Ms Gaines, who is also a spokesperson for the Independent Women's Forum, a conservative women's organization.
Doriane Lambelet Coleman, who competed internationally in athletics in the 1980s and is a professor at Duke Law School, said many aspects of the new rule are an "attractive" way of tackling the issues surrounding trans athletes, which many Institutions and levels encompass reconciling the sport, from youth recreation to elite competition.
"Having a one-size-fits-all solution," she said, wouldn't make sense — even if the new proposal puts more of a burden on schools. Each of these institutions “really balance fairness and inclusion differently,” she added, and it makes sense to take a more “tailored” approach.
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