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A blue and pink flag transgender pride flies in the wind.

Advocates for the LGBTQ+ community say a proposal rule would allow discrimination against transgender students.

Allison Dinner/AFP via Getty Images

The Biden administration’s proposed rule for transgender students goes both too far and not far enough, according to the more than 132,000 comments submitted ahead of today’s deadline.

The controversial rule, released last month, would prohibit blanket bans barring transgender students from participating in the sport consistent with their gender identity by amending regulations regarding Title IX of the Education Amendments of 1972. Title IX is a federal gender-equity law that protects students from sex or gender discrimination.

LGBTQ+ advocacy groups say the rule would allow for discrimination against transgender students and urged the department to strengthen the rule to better protect transgender, nonbinary and intersex students. Other commenters want the department to reverse course altogether, citing worries that the rule would threaten women’s sports, among other points. Those opposed also raised unfounded safety concerns and questioned the department’s authority to carry out the change.

“Under threat of denying essential school funding, the department’s proposed regulation would attempt to coerce compliance with an uncertain, fluid, and completely subjective standard that is based on a highly politicized gender ideology,” 25 Republican governors wrote in a joint comment. “Most troubling, the proposed regulation would turn the purpose of Title IX on its head and threaten the many achievements of women in athletics.”

The administration has received more than 132,000 comments so far on the rule. The Biden administration wants to require schools, colleges and universities to have sport-specific criteria if an institution is applying sex-related rules that would limit or deny a transgender student’s ability to participate on a team consistent with their gender identity.

That criteria would have to take into account “important educational objectives” such as fairness in competition and safety as well as the level of competition and education level of those involved. A general disapproval of transgender students would not qualify as an important educational objective, officials have said. Institutions’ adopted criteria also need to minimize harm to transgender students who are not able to participate.

Religious colleges can request, under existing rules, to be exempt from Title IX.

The Biden administration’s latest proposal builds off its proposed Title IX regulations that expanded protections for transgender students, which thousands opposed in public comments.

The proposed athletics rule would conflict with state laws that restrict transgender athletes from participating in girls’ and women’s sports at the K-12 and postsecondary levels. Colleges and universities in those states could risk their federal funding if they follow those laws. The American Council on Education, the main lobbying group for higher education, is not planning to submit a comment on the proposal, a spokesman said Friday.

Jon Fansmith, senior vice president for government relationships at ACE, said on a recent episode of the organization’s podcast that the draft rule gives institutions flexibility to make a sport-by-sport determination.

“On the flip side, this is an incredibly controversial issue,” he said. “Without that clear, prescriptive federal rule saying, ‘You have to do X, Y and Z,’ then the challenge falls on that institution’s choices there. It’s a difficult place for institutions to be in.”

Sharp Divides

The submitted comments posted so far show the sharp divides over transgender rights—an issue that’s become the latest flashpoint in the culture wars. House Republicans recently passed a bill on a party-line vote that defined sex in Title IX as a person’s reproductive biology and genetics at birth, which would prohibit transgender athletes from participating in athletic programs for women or girls.

Several commenters denied the existence of transgender individuals and accused transgender women of putting girls and women at risk. Others said that the bans are hurtful to transgender students, who are more likely than their cisgender peers to consider or attempt suicide.

More than 30,000 comments included a passage from a sample letter from the American Family Association:

“I strongly oppose the Department of Education’s proposed rule that threatens to withhold funding for children’s education in exchange for accepting someone else’s ‘adopted’ sexual identity,” the sample comment states. “The biology between male and female is undeniably inherent and distinct to each sex, giving males, specifically, physical characteristics that make them naturally dominant over females in most sports. The department’s proposal creates an unfair advantage to males and undermines girls’ and women’s sports.”

Nearly 10,000 comments were submitted as part of the National Women’s Law Center’s campaign, which generally supports the rule.

“Transgender, nonbinary, and intersex students experience high rates of sex discrimination and harassment at school, which is linked to poor academic and health outcomes,” the center’s sample letter states. “Affirming policies that allow students to play sports consistent with their gender can reduce stigma, depression, and isolation, and contribute to positive academic outcomes like fewer absences, better grades, and higher chances of completing high school.”

The NWLC wrote on its website that the draft rule, particularly the 114-page preamble, has caused stress and confusion for the trans, nonbinary and intersex community.

“Properly interpreted and applied, this rule would sharply restrict schools’ ability to exclude trans, nonbinary, and intersex athletes,” according to a fact sheet.

The NWLC recommended that the department clarify its rule to ensure that all students at the K-12 and college club and intramural levels are able to play sports free from sex discrimination based on transgender or intersex status.

“The department should say it is not the view of the federal government that trans student athletes have any categorical advantage in sports, or that permitting them to play will create a risk of injury—or deny opportunities—to cisgender students,” the center wrote on its website. “The final Title IX rule should affirm that it is illegal for schools to exclude trans, nonbinary, or intersex students from sports based on … fearmongering and lies.”

The American Psychological Association has recommended that the department should move forward with the rule and clarify the exact criteria schools, colleges and universities must use to determine when to restrict transgender, nonbinary and intersex students from participating on sports teams consistent with their gender identity, according to several comments.

“This must include additional examples of the types of restrictions that would not meet the rule’s standards for exclusion,” several commenters wrote, referencing APA’s recommendations.

Meanwhile, Republican attorneys general for 23 states requested an extension of the comment period, saying that 32 days doesn’t allow for enough time to provide meaningful comment.

“The proposed rule attempts to shoehorn concepts such as ‘gender identity,’ a phrase that appears nowhere in Title IX, into the department’s regulations and treats many states’ laws as illegal under Title IX,” the attorneys general wrote. “The states are still reviewing the proposed rule. But the proposal appears to have completely outsourced its federalism analysis … The department should not arbitrarily and capriciously rush this rule.”

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