Biden proposal bars schools from enacting outright bans on athletes who identify as transgender

WASHINGTON (OSV News) -- A proposed rule from the Biden administration would prohibit publicly funded schools and colleges from enacting outright bans on athletes from competing on sports teams corresponding with their self-perceived gender identity, rather than their biological sex. While opponents criticized the measure, some progressive activists did as well, arguing the proposal's exceptions for certain cases are too broad.

The proposal is a part of the administration's pushback on a trend of Republican-led states seeking to ban athletes who identify as transgender from competing in school sports on teams that do not correspond to their biological sex. According to the American Civil Liberties Union, more than 400 bills -- which the organization opposes as "anti-LGBTQ bills" -- have been filed in state legislatures in the 2023 legislative session. Some states also have moved to restrict surgical and hormonal interventions for minors who identify as transgender.

The administration's proposal is subject to an approval process but, if enacted, would become a provision of Title IX, the landmark gender-equality in education legislation adopted in 1972.

However, opponents of the proposal said it could endanger equal opportunity for women in student athletics.

Matt Sharp, senior counsel for Alliance Defending Freedom and director of its Center for Legislative Advocacy, told OSV News the administration is "ignoring the real harm" done to biologically female athletes in allowing transgender athletes who are biologically male to compete in women's sports.

"Rather than taking this chance to do the right thing to reaffirm the importance of Title IX and the protection it was intended to afford women athletes, it was really a slap in the face to a lot of these young women to sort of, once again, say we're not going to stand for you but would rather continue to push this gender ideology in federal law and policy," Sharp said.

Sharp, who with ADF has worked with some female athletes to challenge such policies, said the proposal is part of "continuing efforts to sort of rewrite Title IX to erase what it means to be male and female; and replace that with this view that whatever your internal sense of self is, that determines what sports team you play on."

"And again, we know from science that there are physiological differences, that those differences matter on the playing field," he said. "And that's why Title IX has long been recognized to protect these equal opportunities for women -- to protect separate designated sports teams for female athletes."

In guidance on health care policy and practices released March 20, the U.S. Conference of Catholic Bishops' Committee on Doctrine opposed interventions that "involve the use of surgical or chemical techniques that aim to exchange the sex characteristics of a patient's body for those of the opposite sex or for simulations thereof."

"Any technological intervention that does not accord with the fundamental order of the human person as a unity of body and soul, including the sexual difference inscribed in the body, ultimately does not help but, rather, harms the human person," the document states.

There is no clear data on how many athletes who identify as transgender compete on teams opposite their biological sex in the U.S., as many sports associations do not track those numbers. A 2022 study by the UCLA Williams Institute found that there are approximately 1.6 million people in the U.S. who identify as transgender, with nearly half of that population between the ages of 13 and 24.

Last year, Utah Gov. Spencer Cox, a Republican, vetoed a bill barring transgender student athletes from women's sports, citing the small number of relevant cases in the state. Cox wrote in a memo accompanying his veto that out of 75,000 athletes participating in high school sports in Utah, only 4 students who identify as transgender played high school sports in the state and just one played girls' sports. Utah's Legislature later overrode Cox's veto.

The Biden administration's proposal would grant schools some latitude in exceptions to the ban, such as the ability to adopt policies that seek to ensure fairness on competitive teams or to prevent sports-related injuries.

Proponents of Biden's proposal argued it would protect student athletes who identify as transgender. Human Rights Campaign, a LGBTQ+ political advocacy group, called for the rule to be "clarified" but enacted.

"State lawmakers take note -- discriminating against transgender athletes is wrong and a violation of federal law. This new rule makes that abundantly clear," Kelley Robinson, HRC's president, said in a statement. "Every student deserves to be treated with dignity and respect. This includes transgender girls of all ages and in all sports, without exception."

Some progressives, however, argued the administration's proposal should not have exceptions. Rep. Alexandria Ocasio-Cortez, D-N.Y., wrote in a tweet that the plan was "indefensible and embarrassing" and should be walked back.

However, officials in states that have adopted such bans criticized the administration's effort.

"South Dakota will not allow this to stand," Gov. Kristi Noem, R-S.D., wrote in a tweet. "We will lead. We will defend our laws."