The rule proposed by the Department of Education would provide strong protections for transgender student athletes on paper, but without additional clarification will leave room for harmful practices to continue. The rule would declare the transphobic sports bans being passed across the country invalid and require close scrutiny of any restrictions that target transgender and intersex students. The proposed rule is a critical first step in protecting transgender students, but the Administration can and must do more.
What's good about the regulation: The Administration has made clear this rule would put an end to any proposed or enacted transphobic sports bans that issue a blanket prohibition on trans students being able to participate in sports. Under the proposed rule, any policy that would deny transgender children the ability to play on the sports team consistent with their gender identity must be harshly scrutinized. Only those policies that are substantially related to achievement of an important educational interest, that do not rely on overbroad generalizations and sex-based stereotypes about transgender student athletes, and that minimize harms to the students affected, are allowed.6 This rule would prohibit policies that prevent trans students from participating in school sports consistent with their gender identity in almost all elementary schools, likely all middle schools, and high schools in most cases.
What needs to be improved: What needs to be improved: The rule should specifically state that there is a legal presumption that Title IX requires trans inclusion in sports, and that the burden is always on the school to overcome this presumption of inclusion. Transgender, nonbinary, and intersex youth need and deserve an opportunity to play school sports alongside their peers. This is especially the case in contexts that are primarily about the social, educational, and physical benefits of sport, rather than elite competition. Thus, the Department should also make clear that restrictions on transgender, nonbinary, and intersex students’ ability to play sports are never permitted at the K-12 or club college level. The proposed rule and the Department of Education’s description of how it would interpret the rule also do not provide enough clarity about what exactly is and is not an “important educational interest,” or what it means for a policy to be “substantially related” enough to survive its standards. The only interests mentioned by the Administration are competitive fairness and preventing injury—broad interests that could leave the door open to harmful practices without further clarification. The proposed rule also fails to set clear guardrails to ensure it is not misused to perpetuate discrimination that harms many students and benefits no one. Eligibility criteria like “gender verification” testing—which includes invasive genital inspections or hormonal or chromosomal tests—are not explicitly banned under the regulation. The Administration must make clear those policies—alongside any others that humiliate and harm children and youth–violate Title IX.