How the Biden Administration’s well-intended new Title IX regulations could actually make way for more trans bans

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President Joe Biden’s administration proposed new Title IX regulations on trans athletes participating in school sports last week, inadvertently offering schools guidelines for when to bar participation.

Given the 20 states that have already passed bans on trans youth’s participation in school sports, the ongoing debate on trans students’ access to sport participation falls under the Title IX law.

Originally enacted in 1972 by the U.S. Department of Education, Title IX is a federal civil rights law that prohibits sex-based discrimination in educational programs and school activities, in which “sex” extends to sexuality and gender identity. The law was inspired by the U.S. Department of Justice’s Title VI, born out of the Civil Rights Act of 1964 to prohibit discrimination based on skin color, race, ethnicity, and nationality.

The Biden administration and the U.S. Department of Education’s proposal includes a paragraph stating to block complete and general bans—also known as “blanket bans”—on trans youth in school sports that receive federal funding. As blanket bans on sport participation for trans students continue to be rampant, this new Title IX regulation should be considered a win for trans students, but the case is not true.

In addition to blocking blanket bans regarding trans youth in sports, the Biden administration made exceptions to the ban, ultimately offering guidelines for when schools could bar sports participation. Essentially, though the sweeping laws that ban trans athletes from competing would not be allowed in federally funded schools, individual schools could ban some trans athletes on a case-by-case basis should they have the means to justify it.

One key justification is the means of “fairness”, which harkens back to original debates over the presumed notion that genitalia and its relative hormones and athletic performance are mutually exclusive.

Karissa Niehoff, executive director of the Connecticut Interscholastic Athletic Conference (CIAC) who supports trans athletes told ESPN in 2018 that “we don’t look at [fairness] in terms of winning and losing. It’s more about opportunity and access. We want to be fair there first.” She also noted that being a student in school is already challenging, let alone being a trans student. “This is about life, not winning and losing in sports,” she continued.

Another allowance for restricting trans athletes from participating in school sports is defined as “preventing sports-related injury,” which, in line with conservative talking points, implies that trans girls are bigger and stronger than those who are cis, and that trans men undergoing testosterone could give them an advantage and therefore cause harm.

Ultimately, this Title IX proposal does not line up with President Biden’s commitment to advocating for trans people. Biden has been championing the trans community from the beginning of his presidency, his history-making victory speech where he mentions the trans community for the first time in presidential history, for instance.

“And to all those who supported us: I am proud of the campaign we built and ran,” he said. “I am proud of the coalition we put together—the broadest and most diverse in history: Democrats, Republicans and Independents. Progressives, moderates and conservatives. Young and old. Urban, suburban and rural. Gay, straight, transgender. White, Latino, Asian, Native American, and especially for those moments when this campaign was at its lowest—the African American community stood up again for me. They always have my back, and I’ll have yours.”

Just two months ago, he released an executive order to advance the equity of “underserved communities”, including trans people. During his State of the Union in that same month, the president called for the passage of the Equality Act and said, “Let’s also pass the bipartisan Equality Act to ensure LGBTQ Americans—especially transgender young people—can live with safety and dignity.”

Erin Reed, an openly trans independent journalist who has been tracking anti-LGBTQ bills, says that she struggles to understand the Biden administration’s reasoning as to why the Title IX proposal is happening.

“I can’t get into his head,” she said. “But in the case of intent [versus] impact, no matter what the intent was, the impact of this will mean more trans bans.”

Right now, we’re already at a record-breaking number of 452 anti-LGBTQ bills proposed this year, and 20 states have passed bills that are barring trans students from participating in sports. During the time of the Biden administration’s announcement of the Title IX proposal, Twitter was celebrating West Virginia’s win.

In 2021, the prohibition of trans girls competing in women’s sports in middle school, high school, and college passed, and 11-year-old trans girl Becky Pepper-Jackson, who is currently competing on her school’s cross-country and track-and-field teams sued, noting that the prohibition violates the Constitution.

This February, Richmond-based U.S. Court of Appeals for the 4th Circuit put the ruling on hold, allowing Pepper-Jackson to try out for the team. The state appealed the decision to the Supreme Court, and mere hours before Biden’s proposal, the Supreme Court sided with Pepper-Jackson, temporarily blocking the state from enforcing the ban.

West Virginia has a history of anti-trans bills besides sports. In Feb. The state’s first trans councilwoman Rosemary Ketchum told Reckon that “It’s clear that [West Virginia’s] entire legislator is unaware—maybe willfully—that trans people make up a really significant part of our culture here.” At the time, the state had proposed SB252 and SB278, attempts of making it a crime to be ‘exposed’ to trans people.

Imara Jones, award-winning journalist, host of The Anti Trans Hate Machine podcast and creator of TransLash Media, explains how Biden’s administration proposed a regulation that is a “contradiction from the policy that the President stated” regarding supporting trans communities.

Two years ago, the president said during his first joint address to Congress, “To all transgender Americans watching at home, especially the young people. You’re so brave. I want you to know your president has your back.” Jones told Openly News after the mention, “Once you hear a president talk about certain things, it is a signal to the government as a whole that those things are important.”

Right now, the proposal is open for 30 days of public comment, and Jones is one of many who spoke up.

As a response to the Title IX proposal last week, Jones released a statement that called the disinformation being spread regarding kids and their participation in sports a “driving force” behind the surge of anti-trans bills. She also noted that Biden’s Title IX proposal only validates this disinformation and gives power to legislators seeking to take more rights away from young trans people.

“The administration [in doing this] has acted in a way that is that contradicts what the president has personally stated,” said Jones, who says that Christian nationalists will feel “more emboldened to continue to press because they are scoring what’s essentially a victory from an administration who [in this proposal] had very squarely said that they weren’t going to defend trans people and specifically trans youth.”

Rep. Zooey Zephyr of the 100th District of the Montana House of Representatives, along with 13 other trans and nonbinary legislators also released a statement on Twitter this Monday, urging the president to reconsider the Title IX proposal.

“There is no such thing as an acceptable “compromise” that limits transgender Americans’ access to equal rights,” the statement reads. In addition, the letter states that revisions should be made in conjunction with “a wide array” of transgender legislators, lawyers, and activists, and that the amended policy language “should begin with the presumption of full inclusion for transgender athletes.”

Rep. Zephyr tells Reckon that the nearly 120-page proposal is full of problematic material that states could utilize to legitimize a Title IX-compliant prohibition of trans athletes in school sports. She adds that because the comment period was opening, it felt important to her and the other trans legislators across the country to publicly highlight on Twitter that this proposed policy risks potential harm to the trans community.

“Trans athletics is a place dear to my heart,” she said. “Given that I was a high-level athlete—I was a nationally ranked wrestler prior to my transition, and I still play on intramural teams when I get the chance—athletics will always be near and dear to my heart. It’s one of the first bills I ever testified on.”

Another legislator who worked on and signed the statement is nonbinary Rep. Mauree Turner of Oklahoma’s 88th District of House of Representatives. Oklahoma is currently the third state with the highest proposed anti-trans bills at 35, right behind Missouri at 48 and Texas at 51.

For Rep. Turner, their biggest critique of the Title IX proposal is the lack of action in the administration’s allyship. To support trans rights, they suggest uplifting the voices of Gen Z, who they believe is organizing at growing rates because “they know what they deserve from elected officials, [and] if we don’t step up to meet them, we could lose one of the most powerful, thoughtful, and intentional generations to lead America.”

“As elected officials we have so much work to do to meet Gen Z where they are,” said Rep. Turner, who claims that Republicans will never join the movement for an equitable future. “The longer we are willing to compromise our [BIPOC LGBTQ] community members, the more people we lose willing to engage in politics, and [therefore] the more lives we lose to suicide and homicide. The action to save trans lives cannot happen in a closet.”

Denny Agassi

Denny |

Denny is a writer, actor, and musician who has co-starred in POSE (FX) and New Amsterdam (NBC), and will appear in the upcoming series City On Fire (Apple TV). Aside from The Grammy, Allure Magazine, PAPER, and more, her recent writing—“He Made Affection Feel Simple”—was published in The New York Times’ Modern Love.

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