What Biden proposal on transgender school athletes means to Michigan

• The Biden administration is proposing a new rule about transgender athletes to add to Title IX
• If approved, schools who receive federal funds would need to consider type of sport, grade level and competition level if using sex-based sports eligibility criteria 
• It’s likely the issue could end up in the courts, according to one lawyer 

The Biden administration is proposing a new rule that would allow schools to limit some transgender students from participating in sports.

The rule would affect K-12 schools, colleges and universities that receive federal funding. If approved, the rule would be added to Title IX regulations and schools would need to follow the rule if they wanted to keep federal funding.

Under Title IX, education institutions that receive federal funding cannot discriminate against people on the basis of sex. (Last summer, the Biden administration proposed another rule related to protections for LGBTQ students under Title IX but that rule is not yet final.) 

Related:

• Trans teens: We need to be heard, counted. In Michigan, the backlash is harsh
• Whitmer signs anti-discrimination protections for LGBTQ residents in Michigan into law

What is the proposed rule about transgender athletes? 

Schools would not be allowed to use categorical bans that prevent all transgender students from participating in sports on teams consistent with their gender identity, the department said in a fact sheet Thursday.

Instead, schools would need to consider the type of sport, level of competition and grade or education level of students if they are using sex-related criteria to determine a student’s eligibility on male or female teams. 

Schools would also need to consider “achievement of an important educational objective” in their rules. Two examples of that objective might be “ensuring fairness in competition or preventing sports-related injury,” the department said. Additionally, schools would need to “minimize harms” for transgender students who were limited or denied from playing on teams that align with their gender identity. 

Jay Kaplan, the ACLU of Michigan’s LGBTQ+ Rights Project staff attorney, told Bridge he was happy to see that the administration sent  a “very important message” by standing against categorical bans of transgender athlete participation. But he said the proposed rule does not provide much guidance and could send a message to school districts that it’s OK to exclude transgender students from competitive sports.

He said he believes a lot of the anti-trans legislation around the country is based on misinformation about transgender people.

How would this rule work? 

In its explanation of the rule, the department said that schools offer sports teams for different reasons “depending on students’ grade or education level.” 

“For example, teams for younger students often focus on building teamwork, fitness, and basic skills for students who are just learning about the sport, while a collegiate team may be primarily focused on competitive success.”

The department anticipates that elementary school students would be allowed to participate in school sports teams that align with their gender identity but competitive high school or college teams might have different eligibility rules. 

The department said sex-related criteria that limit the participation of some transgender students “may be permitted” in certain situations. 

What does this potential rule mean for Michigan schools? 

It’s unclear what differences would emerge between different sports and grade levels. 

Geoff Kimmerly, spokesperson for the Michigan High School Athletic Association, said in an email that “our policy already provides opportunities and allows us to consider every student’s request on an individual basis and take into account all of these possible factors – and we’ve yet to have issues arise with this policy which has been our guide for a number of years.”

Bridge previously reported that the association has had a policy since 2012 that makes a determination on post-season tournament eligibility for transgender girl athletes on a case-by-case basis. 

Dave Kallman, senior legal counsel at Great Lakes Justice Center, said he thought the proposed rule was “legal mish mash” that would end up in litigation for the next 15 to 20 years. He said the department was “virtue signaling.”

“They want to be perceived to be on the side of transgender athletes and let the courts decide on it,” he told Bridge. 

He said while the proposed rule talks about minimizing harm for transgender athletes, he believes this rule would harm female athletes and would destroy Title IX. 

Would this rule help students?

The announcement was met with some support but will likely face steep criticism from those who have vowed to fight against the inclusion of transgender students in sports. 

“To be clear, discrimination has no place in our schools and that includes on the gym and in the field,” Equality Michigan Executive Director Erin Knott told Bridge. Blanket bans on transgender athletic participation “sends a very dangerous message to trans youth and it contributes to the discrimination they already face.” 

Drew Hohmann, digital organizer at the Michigan Education Justice Coalition, said he worries that the proposed rule could be “weaponized” to limit transgender athlete participation in certain ways. He said he wants to hear from transgender people about their concerns about the proposed rule.

“This is not in the interest of students and kids,” he said. 

Knott said she will be working with other LGBTQ advocacy groups to find ways to improve the policy and fight back against anti-trans rhetoric. 

What about states that ban transgender athletes from participation on sports teams that align with their gender identity? 

Across the country, states have instituted bans that prevent transgender athletes from participating in the teams consistent with their gender identity. 

There are 20 states with these bans with some of those bans being halted by courts, according to an analysis from the Movement Advancement Project (MAP), a nonprofit think tank. 

If the federal proposed rule was approved, some of those states or other groups could fight the federal rule in court.  

On the same day that the proposed rule was announced, the Supreme Court issued a temporary order that allows a transgender 12-year-old girl to compete in her school’s cross country and track teams as her case against a 2021 West Virginia law moves forward. 

Some Michigan Republicans have proposed efforts to limit transgender athlete participation but they haven’t been successful. 

Is the proposed rule final? 

No. The public will have 30 days to submit comments about the proposed rule once the rule is published in the Federal Register. 

The proposed rule will go through a public comment process. Afterward, the administration can choose to make changes to the proposal, withdraw the proposal or issue the rule.