Public comment on U.S. Department of Education's proposed Title IX rule on sex-related eligibility criteria for athletic teams

The Honorable Miguel Cardona
Secretary
U.S. Department of Education
400 Maryland Avenue SW
Washington DC, 20202

The Honorable Catherine Lhamon
Assistant Secretary for Civil Rights
U.S. Department of Education
400 Maryland Avenue SW
Washington DC, 20202

Re: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams (Federal Register 88, no. 71); ED-2022-OCR-0143

The Campaign for Our Shared Future (COSF) writes in response to the proposed rulemaking by the U.S. Department of Education (“the Department”) for Title IX §106.41, addressing nondiscrimination in school sports where separate-sex teams are lawfully permitted. If implemented effectively, the proposed rule represents a step forward toward ensuring the ability of every child to participate in school, free from discrimination, and to creating healthier learning environments that promote individual student well-being and success.

COSF believes that every child deserves an inclusive, meaningful education that supports their health, learning, and success in life. COSF fights for equitable, anti-racist programs, practices, and policies that sustain schools and ensure opportunity for every child. COSF’s work is grounded in deep experience and knowledge of the education sector, and of the school-based interventions that benefit all members of a learning community. It is clear that securing the civil rights of every single student, no matter who they are, in every single public school, is both the foundation of true individual opportunity and an essential part of education in a healthy multi-racial democracy.

Background

At this moment in U.S. history, one of the most urgent threats to public education, equal opportunity, and the health of our democracy is an attack on students–particularly on transgender, nonbinary, and intersex students. States across the country are attempting to legislate these students out of academic, social, and especially athletic opportunities. The 2021 and 2022 legislative sessions saw a record-breaking 151 and 162 state bills, respectively, introduced that aimed to curtail the rights of LGBTQ+ students and young people. So far in 2023, 222 bills restricting K12 education have been introduced, with 21 states implementing a categorical ban on trans students athletics participation.

Though many of these hateful legislative proposals failed, the impact of their introduction cannot be overlooked. The mere consideration of such discriminatory policies creates an unwelcoming climate for LGBTQ+ people by normalizing differential treatment and furthering poor mental health, internalized stigma, and expectations for adverse treatment.

Even prior to the current attacks, transgender, nonbinary, and intersex young people faced substantial barriers to equal opportunity in school sports, including being prevented or discouraged from playing sports by school staff or coaches and being forced to use locker rooms that do not correspond with their gender identity (which has been found to be associated with a decreased likelihood of participation in school sports). CDC data show that transgender students are significantly less likely to report having played on a school sports team in the past year than their cisgender peers. Transgender students who are Black, Indigenous, and people of color (BIPOC) experience compounded marginalization in school sports. For example, Black transgender youth were significantly less likely to report having played on a school sports team in the past year than both non-Black transgender students and Black cisgender students. Another recent study of CDC data found that transgender girls of color were significantly less likely to report participating in school sports than other girls.

GLSEN’s 2021 National School Climate Survey (NSCS) of LGBTQ+ students found that nearly half (46.0%) of transgender secondary students, including those who identify as nonbinary, were prevented from playing on a school sports team consistent with gender identity. More than one in four (27.7%) of nonbinary students reported the same. Between 2019 and 2021, the percentage of transgender and nonbinary students reporting that they had been barred from school sports more than doubled.

These trends are, in part, due to the intentional and coordinated spread of disinformation about the impacts of allowing transgender students to participate fully in athletics. A recent analysis of CDC data found that there was no negative impact on the participation of girls and women in school sports in states that had implemented trans-inclusive state athletics policies. In fact, early evidence from California and Connecticut suggests that trans-inclusive policies are correlated with increased participation of girls in school sports. In contrast, where states enacted trans-exclusionary policies, girls’ overall participation in high school sports declined.

Restricting students’ ability to participate in school sports consistent with their gender identity mandates a system of gender policing that creates a hostile environment for transgender and cisgender students alike. Conversely, a safe and supportive school environment for all students creates a healthy school culture. All students deserve access to the benefits of school sports participation and the Department should do everything it can to ensure this access.

Recommendations

The proposed rule makes participation consistent with gender identity the only approach to sex-separated school sports teams that does not risk a covered entity violating Title IX. For a covered entity who nonetheless seeks to adopt or apply exclusionary eligibility criteria, the proposed rule requires that “for each sport, level of competition, and grade or education level,” the restriction be “substantially related to achievement of an important educational objective” and “minimize harm.”

Through guidance accompanying the regulatory text (“the preamble”), the Department makes clear that policies that categorically ban transgender students from participating in school sports consistent with their gender identity would not satisfy this test, and thus such policies violate Title IX. In addition, the Department expressly names transphobic myths as unacceptable grounds for any restriction targeting transgender, nonbinary, and intersex youth in schools, meaning that policies that rely on such myths will likewise fail the test. If properly interpreted and robustly enforced, the proposed rule represents a significant and important step towards ensuring equal educational opportunity by severely limiting restrictions on participation in school sports consistent with gender identity.

The Department states that categorical bans on participation consistent with gender identity are impermissible; The regulatory text should explicitly include this prohibition.

The preamble makes clear that “categorical” bans, such as those that “exclude all transgender girls and women from participating on any female athletic teams would not satisfy the proposed regulation because, in taking a one-size-fits-all approach, they rely on overbroad generalizations that do not account for the nature of particular sports, the level of competition at issue, and the grade or education level of students to which they apply.” We commend the Department for making clear that the bans enacted in states at the time of this submission violate Title IX. To support strong implementation, the Department should include language expressly prohibiting categorical bans in §106.41.

The Department should also provide additional examples of categorical bans in the preamble. For example, where youth are unable to access gender-affirming medication, a restriction requiring such medication is a de facto categorical ban. Finally, the Department should provide guidance for administrators implementing the rule, including those in states that have enacted categorical bans.

The Department should clarify that restrictions cannot be justified in the context of K-12 and college intramural and club sports.

The proposed rule states: “the Department currently believes that there would be few, if any, sex- related eligibility criteria applicable to students in elementary school that could comply with the proposed regulation, and that it would be particularly difficult for a recipient to comply with the proposed regulation by excluding students immediately following elementary school from participating on male or female teams consistent with their gender identity. The Department welcomes comments on whether any sex-related eligibility criteria can comply with this proposed regulation when applied to students in these earlier grades and, if so, the types of criteria that may comply with the proposed regulation.”

Title IX’s applicability to school sports depends on the premise that athletics programs are an educational opportunity and so school athletics are valued for, above all else, the educational benefits they provide. The purpose of permitting sex-separated school sports teams under Title IX is to foster the equal participation of girls and women in school sports in a context where they have been systematically excluded and denied. Congress additionally recognized that the principles of equal opportunity may operate differently with regard to certain “intercollegiate athletic activities ... considering the nature of particular sports.”

There is no evidence that restrictions on participation consistent with gender identity are necessary to ensure fairness in elite sports contexts or entry to such sports via K-12. Imposing restrictions on participation consistent with gender identity is particularly egregious in K-12 contexts since playing K-12 school sports, at best, complements pathways to elite and professional competition. Organizations governing elite, non-school youth sports should allow for the participation of transgender, nonbinary, and intersex youth; some have already adopted trans-inclusive policies. However, the content of such policies—or their absence—does not set the bar for rules governing the participation of transgender, nonbinary, and intersex students in the Title IX-covered setting of school sports.

The Department should prohibit “sex testing.”

The preamble explains that any criteria, including physical examinations, medical testing, or treatment, must minimize harm, but it does not rule out particular criteria that are deeply invasive and harmful. The Department should explicitly state that requiring visual inspections of anatomy or medical examinations of student-athletes would violate Title IX because they inherently cause significant harm to students and are never necessary to advance an important educational objective.

In many states, intrusive examinations remain on the table, even in middle and high school sports as well as college club and intramural sports. These kinds of restrictions invade students’ privacy and bodily autonomy, are often applied arbitrarily based on prejudice against protected groups, and send deeply stigmatizing and damaging messages to young people that are antithetical to a supportive, nondiscriminatory educational environment.

Recognizing the deep harm of current athletics restrictions, the American Medical Association (AMA) has adopted a policy opposing “[m]andatory testing, medical treatment or surgery for transgender athletes and athletes with [intersex traits] and affirm[ing] that these athletes be permitted to compete in alignment with their identity,” opposing the “use of specific hormonal guidelines to determine gender classification for athletic competitions,” and opposing the satisfaction of “third- party requirements to certify or confirm an athlete’s gender through physician participation.”

The department should state explicitly that “sex testing” violates Title IX and is never necessary to advance an important educational objective because of the serious harm it causes to students.

Conclusion

For years, proponents of exclusionary restrictions on school sports participation consistent with gender identity have relied on deeply problematic evidence to justify exclusion. Clear guidance on unacceptable evidence is critical to supporting strong implementation and advancing equal educational opportunity. The Campaign for Our Shared Future thanks the Department for its commitment to ensuring that all students, including those who are LGBTQ+, have equal opportunity to succeed and fulfill their potential in school. We appreciate the opportunity to provide feedback and input on the proposed rule and look forward to the Department’s release of the final Title IX rule. If you have questions or would like to discuss the contents of this comment, please contact the Campaign at at info@campaignsharedfuture.org.

Sincerely,

Heather Harding, Ed.D.

Executive Director, Campaign for Our Shared Future