Transgender and nonbinary state legislators press Biden on proposed transgender students athletics rule

Fourteen transgender and nonbinary state legislators from across the country recently wrote to President Joe Biden to ask him to revise a proposed rule on transgender participation in school athletics that would allow limits on the participation of some older transgender athletes in high school and college athletic programs.

The group of legislators from 11 states sent him a letter two weeks ago to request that the proposed rule be updated so it "allows trans people to fully participate in the sports of their choosing, and does not perpetuate unfounded and harmful claims about trans athletes." 

Among the lawmakers was Montana Rep. Zooey Zephyr, who was censured on Wednesday for the remainder of the 2023 legislative session after her comments about gender-affirming care. The group is concerned about a carve-out in the Education Department's proposed rule, which was announced on April 6.

It would affirm that equal-opportunity athletics include transgender students under the federal Title IX ruling, which 50 years ago mandated all students — regardless of sex — should have equal sports opportunities in educational institutions.  

In applying the rule to transgender students, the Education Department proposed that school districts not be allowed to implement district-wide bans on transgender athletes, although it would take into account the age of transgender student athletes.

The proposed rule would mean "elementary school students would generally be able to participate on school sports teams consistent with their gender identity." 

But the rule "provides flexibility" for high schools and colleges receiving federal funds, which may be permitted to "limit participation of some transgender students" in sports based on several factors, including fairness in competition and the nature of a particular sport.

This rule, if implemented, would be the first national standard for transgender high school athlete participation because the National Federation of State High School Associations does not dictate participation rules for transgender athletes.

The group of state lawmakers says it understands "the administration may have been attempting to provide legal protections and clarity" with the proposed rule, but argues the rule in its current form "...will simply provide those who seek to deny us our rights a roadmap for how to do so."

While Title IX has allowed leeway for schools receiving federal funding to have sex-separated sports teams that can select specific participants based on "competitive skill" or the specific athletic activity, the lawmakers and others argue similar considerations could be used to exclude some older transgender students. 

"[T]here is no such thing as an acceptable 'compromise' that limits transgender Americans access to equal rights," the lawmakers wrote, saying the success of transgender athletes should be celebrated. "When it comes to policy addressing trans athletes, our stance is this: Trans athletes belong in sports. Full stop."

The White House hasn't responded to a request for comment. An Education Department spokesperson said the department will "carefully review and consider all public comments."

Nineteen states exclude transgender students from playing on sports teams aligning with their gender identity, according to the Human Rights Campaign, and almost 200 bills restricting the rights of transgender people have been introduced at state houses this year, the most in a single year.

One transgender state lawmaker who is asking the Biden administration to reconsider is Rep. Gerri Cannon, a three-term New Hampshire state representative. "We need a response to prove to us that they are listening and that they are reaching out to the transgender community to help them understand what the real issues are," Cannon said. 

She said the influx of state legislation to deny transgender students access to athletics is a "political scare tactic" and likely a response to the success last year by Lia Thomas, a transgender NCAA swimming champion, because "the number of trans athletes is not an astronomical number." 

Twenty-two-year-old Thomas is arguably one of the most controversial and accomplished collegiate trans swimmers competing in recent years. For three years, she swam on the University of Pennsylvania's men's team, but after taking some time off, returned to swim with the women. For three years, she swam on the University of Pennsylvania's men's team, but after taking some time off, returned to swim with the women. She was sometimes so far ahead she could be seen waiting at for her competitors to catch up. NCAA rules require trans women athletes to take testosterone suppression therapy for one year before competing, and Thomas was on it for twice that long.

"It's not like there are thousands of trans student athletes, but the issue makes a lot of noise," Cannon said. 

And it appears to be resonating with the public. The Education Department has received almost 30,000 public comments in the past two weeks on the proposed regulation. 

The National Center for Transgender Equality said it has facilitated over 1,000 comments through its "Let Us Play" campaign. Alex del Rosario, a national organizer for the group, said it's asking the administration to make the rule as "explicit" and "broad" as possible so school districts' obligations are clear, and transgender students are able pursue legal remedies if the rule isn't followed. 

Conservative groups cite fairness and safety concerns for women's athletics for not supporting the inclusion of transgender students in school athletics. One groups, Heritage Action, is also trying to rally comments against the proposed rule. The group said the current carve-outs for older transgender students will create "a mountain of bureaucratic paperwork for each and every school." 

If the proposed rule is implemented in its current form this year, "the future of this regulation will largely be caught up in litigation, unless states [with laws restricting transgender athletes participation] fully retreat, which nobody expects them to do," Brett Sokolow, chair of the Association of Title IX Administrators told CBS News, predicting the issue is likely to reach the Supreme Court. 

Sokolow also warned that school district administrators could be held personally liable for violating federal civil rights if they follow the state bans on transgender sports participation instead of the federal Title IX rule. 

In the interim, as the proposed regulation makes its way through the federal rulemaking process, different sports and organizations are coming up with their own rules for transgender participation in higher levels of play, like college athletics.

Different sports and their governing organizations usually require documentation for older student athletes on testosterone suppression treatments, policies that have been adopted for regular season and championship participation by the National Collegiate Athletic Association. These standards are in line with the International Olympic Committee standards, which stress inclusion, prevention of harm, fairness, but do not "presume advantage" for any transgender athletes in competition.