Education Department to limit bans on transgender student athletes but allow exceptions

The Education Department on Thursday proposed that schools and colleges in the U.S. can't enact blanket bans on transgender athletes participating in school sports that match their gender identity, but allowed limits under certain circumstances. In order to block transgender athletes from certain teams, a school would have to show that the eligibility requirements "serve important educational objectives, such as ensuring fairness in competition or preventing sports-related injury."

The proposed rule "recognizes that in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students' participation," the Education Department said in a fact sheet. So while a high school varsity swim team could propose limiting transgender athletes, a middle school intramural club would have a harder time justifying such a policy.

The Education Department said last summer that under Title IX, the 1972 federal law that prohibits schools from discriminating on the basis of sex, discrimination due to gender identity is also off the table. That rule, which was subject to months of public comment and challenges, is expected to go into effect in May. The transgender sports rule will also be open for 30 days of public comment before it is finalized.

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"Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination," Education Secretary Miguel Cardona said in a statement.

The Biden administration sought to hew a middle path with the transgender athlete framework. Transgender rights advocates wanted fewer exceptions, but the policy would challenge recent laws in 20 states that prohibit all transgender female student athletes from participating in women's sports. Asked about this conflict between Title IX and state laws, a senior administration official told reporters that "the federal civil rights law is the law of the land" and schools that enforce across-the-board bans could lose federal funding.

Also on Thursday, the Supreme Court declined to reinstate a 2021 West Virginia ban affecting transgender female athletes, allowing a stay issued by the U.S. 4th Circuit Court of Appeals to stand while the challenge to the law is litigated. The decision will allow 12-year-old Becky Pepper-Jackson, who is challenging the law, to compete on her middle school girls cross-country team, as she has for several seasons.