The Biden Administration last week put forth a proposal for Title IX reforms involving transgender student-athletes. It calls for an end to the blanket bans that have been passed in 20 states. These bans prohibit transgender boys and girls from participating with their respective cisgender counterparts.
However, the proposal would also allow schools and school districts the ability to bar trans athletes from competing in their gender category if, in the words of the policy document, “important educational objectives” deem such policy necessary. The policy states that “fairness in competition and prevention of sports-related injury can be important educational objectives.”
While blanket bans would be illegal, individual schools can do what they want.
The policy is flawed but fixable, and it may take following the lead of a President from over 100 years ago to find the answer.
A wide range of reaction to the Title IX guidance
Since last week, there’s been outcry across the spectrum of exclusion versus inclusion. On Monday, a group of 14 trans and non-binary state legislators wrote to President Biden stating their concerns.
“There is no such thing as an acceptable ‘compromise’ that limits transgender Americans,” the letter states. “These proposed rule changes will simply provide those who seek to deny us the roadmap to do so.”
At the same time, Republican lawmakers had a similar tenor from a different direction.
“I have made myself abundantly clear to the Biden Administration that he will not impose his radical policies on Alabama athletes,” Alabama Atty. Gen. Steve Marshall said in a statement. “He will NOT destroy athletic competition for our young women and girls.”
Voices in support came from all sides as well. GLBTQ Legal Advocates & Defenders and the National Center for Lesbian Rights put forth statements of support, citing the stance against blanket bans.
“The Department’s explanation in the preamble to the proposed rule is very clear not only that blanket bans are unlawful,” NCLR Legal Director Shannon Minter said to Slate last Friday. “But that any restrictions must meet a stringent test and would pass muster only in the context of elite competitions.”
Even some decidedly anti-trans voices applauded the policy.
“The public is much more aligned with what the Biden administration regulations call for,” Title IX lawyer and three-time Olympic swimming gold medalist Nancy Hogshead-Makar said to the New York Times. “You have to take into account safety and fairness, and that’s exactly what the (regs) allow schools to do.”
The Biden Administration effort here seems to be poor execution of the right idea.
It sounds good on the surface. The blanket bans are abhorrent.
But how can you say you are against such legislation, yet try to build a bridge through anti-trans catchphrases such as “fairness in competition” and “prevention of sports-related injury”? These terms are brought to you by many who have spent time and money trying to affirm that trans Americans are not Americans and have no rights by which they are bound to respect.
The International Olympic Committee’s Framework for Fairness was held up as a model for this proposal, but it forgot a key principle of the framework:
The “fairness” argument flies in the face of this principle, as does using “injury prevention” as an application here. The contention comes from studies that extrapolate data taken from cisgender men. None of those studies used any transgender people, let alone trans youth.
There is also the idea that only “elite” athletics would have potentially more stringent regulations. But who defines “elite”? Even in middle school sport, you only have so many uniforms and positions on a school team. It may not be “elite” as in Olympic or World Championship standards, but it certainly is competitive.
Where is the line and who draws it?
I feel the “monster movie mentality” could come into play here. The difference? Now it might involve young children, like 12-year-old Becky Pepper-Jackson. She won a case in the U.S. Supreme Court to stay on her high school girls team while she fights West Virginia’s trans student-athlete ban. The opposition in the case — involving a middle-school child — has brought in a collegiate athlete to intervene.
The main issues, and a way forward
In reading the policy, three core issues jump out to me:
I see transgender experiences being discounted or ignored.
I see a lack of understanding of how sports governing bodies work in this context.
I see a lack of understanding of how those seeking exclusion are trying to use this issue.
Even with these flaws in the proposal, there is potential. A past chief executive’s actions may give an example of a first step towards fixing it.
The year was 1905. College football saw mounting death tolls in games, and some schools were looking ban the sport.
President Theodore Roosevelt, an ardent fan, called the coaches of the three high-profile teams of the sport at the time — Harvard, Yale and Princeton — and invited them to the White House for a discussion. The underlying message was clear just by the invitation: This matters to your President. Figure this out!
The reforms were a series of fixes over three more seasons. Some say football at any level hasn’t been fixed yet, but that’s a different conversation.
I see a similar opportunity here. There is a 30-day public comment period on the proposal. I say double or triple that comment period, while POTUS makes some calls.
The first ones are to anybody thinking of passing the HR 734 federal trans student-athlete ban. They need a clear message that if it reaches the Oval Office, it will meet a swift veto.
Then get the protocol office working and set a date at Camp David for a summit meeting. Invite duathlete and race walker Chris Mosier and boxer Pat Manuel. Call runner CeCé Telfer. Call swimmer Schuyler Bailar as well, along with other transgender athletes who’ve dealt with ups and downs at the highest level.
Also, call WNBA player Layshia Clarendon. Do it quick, because they have WNBA training camp coming up.
There’s a runner you need to talk to named Nikki Hiltz. They recently won a national championship. Jake Fedorowski also is a must get, as well as four cyclists who made up their sport’s first dedicated non-binary division national championship field.
Get in touch with some trans youngsters hitting the fields, tracks, and pools and their parents. Call the medical professionals who closely with trans communities.
Arrange to have Joanna Harper fly in from the UK, and get Dr. Veronica Ivy, too. Bring in the heads of as many national governing bodies as you can, and the NCAA’s new honcho Charlie Baker.
Also, get the heads of USA Ultimate, USA Quadball and the World Flat Track Derby Association because they’ve gotten ahead of the curve on this.
Oh by the way, those seeking exclusion, and those who have been open with supporting legalized systemic transphobia, are not invited.
The goal: Bring those with real skin in this game together, the people with the lived experience alongside the sport officials, policymakers, and other key parties who stand for inclusion. Let them help turn a flawed proposal into a sound policy, and then once that policy is finalized, be willing to stand up and defend it.
Biden called the tune with his words two years ago in his first joint session of Congress. “To all transgender Americans watching at home, especially the young people… I want you to know your president has your back.”
With this policy, and the issues it addresses looming prominently, transgender Americans would like to see the president who said he’d have their back step to the front.
