Why Biden's New School-Sports Rule Matters – The Atlantic

The administration’s nuanced position on transgender athletes offers a path forward on a complex issue.
Americans are in a cultural battle over school sports. For years, thanks to Title IX, most athletic programs have been divided on the basis of sex. This has allowed female athletes to thrive—to end up in finals, on podiums, and as champions. If we didn’t separate competitive athletes on the basis of sex, men would dominate women in most sports, and we wouldn’t know the likes of Megan Rapinoe, Angel Reese, or Katie Ledecky as stars, at least in this arena.
But more young people now identify as transgender than ever before, and more transgender women and girls—perhaps most famously the swimmer Lia Thomas—are pushing to be included in sports programs that match their gender identity. Their desire for a sense of belonging is understandable. It also sets up an inevitable collision with our country’s half-century-long history of championing and protecting girls’ and women’s sports.
After years of controversy and discord, the Biden administration has offered a way forward. Last month, the White House proposed a new regulation that would allow schools to limit the participation of transgender women and girls on female teams, but only in certain circumstances—for example, if competitive fairness and physical safety are at risk. This is a big deal. The policy represents the first time the administration has acknowledged that biological sex—our physical forms as male or female, depending on our chromosomes and gonadal hormones—matters in certain school-sports settings. At the same time, the rule seeks to maximize opportunities for transgender athletes by recognizing that sex differences emerge over time and matter less in certain educational environments, sports, and levels of competition.
I’ve followed this issue closely, both as a former athlete at the high school, college, and professional levels and as a law professor who’s studied sex and gender in sports. The loudest voices in the debate often seek either to ban transgender women and girls from participating on female teams altogether or, on the other side, to make sports blind to sex differences. This is a complicated issue, one that requires compassion for all the athletes involved, as well as precision, not broad strokes. The administration’s proposal is a welcome response to the partisan rancor and a sophisticated approach that mostly meets the challenge at hand.
Read: There’s good reason for sports to be separated by sex
As a matter of law, the proposal would revise a 1975 federal regulation adopted after the enactment of Title IX—the landmark statute that banned sex discrimination in federally funded school programs. For many people, Title IX is synonymous with sports, but in fact, the original statute doesn’t mention sports or athletics at all. After Title IX passed, Congress was concerned that the new civil-rights law could be read as prohibiting universities from fielding separate-sex sports teams, and so it commissioned the development of an exception to fix the problem. The resulting regulation made two things clear: that schools had to provide “equal athletic opportunity for members of both sexes,” and that they could operate separate-sex teams. In combination, these provisions effectively powered the development of girls’ and women’s sport as we know it today. On the 50th anniversary of Title IX last summer, this 1975 regulation was what many of the law’s fans were really celebrating.
The Biden administration’s revised rule, which would apply to students from kindergarten through college, would still allow schools receiving federal funding to have separate men’s and women’s sports teams with physical, sex-based eligibility criteria. But the proposal adds a new requirement: Schools that wish to “limit or deny” transgender students the opportunity to participate on the team that aligns with their gender identity must establish the existence of a “substantial relationship” between any sex-based eligibility criteria they use and the schools’ educational objectives for each sport, level of competition, and grade. The rule would also require schools to act affirmatively to “minimize harms” to transgender students who are “limited or denied” because of the application of sex-based criteria.
As applied in practice, if a school wanted to say, for example, that transgender girls could not participate on a girls’ cross-country team, the school would have to show that the reason for that restriction was closely related to the broader goals of the cross-country program. Those goals might include advancing the physical and mental health of students and exposing them to competitive environments, as well as ensuring fairness, physical safety, and sex equality (always a Title IX goal). It’s easier to imagine how a school could justify sex-based eligibility requirements for contact sports where the risk of injury is higher, or at the high-school level rather than at younger ages when sex differences are less pronounced and the environment is less competitive.
Trans-advocacy groups might be concerned that states or schools will be able to exclude trans athletes simply by adjusting their educational mission. In the current climate, this is a legitimate concern. But schools will still have to justify any sex-based criterion, and that will be a lot harder in recreational settings—like elementary school and intramural programming—than it will be in interscholastic competition designed to crown the girls’ state champion. That’s as it should be.
Ronald J. Krotoszynski Jr.: The war on trans kids is totally unconstitutional
Advocates of blanket bans might be concerned that the rule imposes too high an evidentiary burden and litigation risk on under-resourced programs. The latter is a legitimate concern. But the former isn’t: There is already a strong body of evidence to support generalizable sex-based eligibility standards for specific sports and levels of competition. This includes evidence about how puberty, puberty blockers, and gender-affirming hormones affect sexual development and athletic performance.
If you understand that both sex and gender matter; if you care about the integrity of girls’ and women’s sports; and if you want schools to take care of all kids, including trans kids, this is a good proposal.
The administration’s rule doesn’t just address the practical question of how to accommodate transgender athletes; it also addresses a political question—how to negotiate the space between those on the left who deny the existence of sex or the relevance of sex differences to law and policy, and those on the right who deny the existence of transgender people and insist that their advocates are selling a dangerous ideology. President Joe Biden clearly cares about trans rights. He also cares about women’s rights. National polling consistently shows that a majority of Americans believe that transgender women and girls shouldn’t be permitted to participate in competitions set aside for females.
Biden leans left of center on this issue. While campaigning for the presidency in 2019, he declared that transgender rights were “the civil rights issue of our time” and promised to make inclusion on the basis of gender identity a “day one” priority. Since his election, he has issued a series of executive orders (outside of sports) that have been true to that promise, including one that re-established the Obama-era White House Council on Women and Girls as the White House Gender Policy Council. On the sports question specifically, in 2021 his Justice and Education Departments weighed in on a lawsuit filed by parents of a transgender girl against the state of West Virginia, arguing that while schools can choose to field separate girls’ and boys’ sports teams, they can’t sort kids into and out of those programs on the basis of sex.
Helen Lewis: The only way out of the child-gender culture war
Although the administration’s proposed regulation appears to be a retreat from its position in the West Virginia case, it is a sound political decision: The White House has chosen a path through the broad pragmatic middle, rather than tacking in either ideological direction. This is common sense, not only if Biden wants to win reelection but also because ideological positions usually aren’t viable in a heterogeneous liberal democracy.
The main weakness I see in the proposal—and it’s an important one—is that while it disallows the right’s blanket exclusionary policies, it can be read to permit the left’s blanket inclusionary policies. That’s because the proposal doesn’t require schools to justify the decision to open up both male and female teams to athletes regardless of their sex. A state shouldn’t be able to take federal dollars for girls’ and women’s sports programs and then have a policy that ignores sex differences. As the proposal otherwise makes clear, the adults in the room are responsible for figuring out how to take care of vulnerable kids when certain programming isn’t a good fit—that goes as much for sports as it does for math.
Unless the administration withdraws the proposed revision before mid-May, it should be in place for the upcoming school year. The new rule will surely be challenged in court, including on the basis that the executive branch might lack the authority to make the revision. The president has made an important statement regardless. In today’s political climate, common sense can be radical, but for Biden and ultimately for the country, it is a promising path.


Leave a Reply

Your email address will not be published. Required fields are marked *

Back To Top