The U.S. Department of Education will not finalize long-awaited changes to Title IX until October, leaving the rights of transgender athletes in limbo and potentially forcing school administrators to change athletic policies in the middle of next school year.
In a blog post published May 26, the Education Department announced it will not release the final version of two major changes to Title IX, the federal law that protects against sex discrimination at schools and colleges that receive federal funding, until October.
The proposed changes, which the department released in two separate rulemakings, have been the subject of public scrutiny for the last year. The changes aim to enshrine in federal regulations that Title IX protections against sex discrimination apply to discrimination based on gender identity and sexual orientation and prohibit across-the-board bans on transgender athletes from joining teams that align with their gender identity.
The Education Department originally said it would release the finalized rules in May, but after receiving a record number of public comments, the agency has decided to extend that date by five months to October.
“Carefully considering and reviewing these comments takes time and is essential to ensuring the final rule is enduring,” the department wrote in the blog post.
The first proposal, released in July of 2022, would change Title IX’s definition of sex-based discrimination and harassment to cover discrimination based on gender identity and sexuality. It garnered around 240,000 public comments, nearly twice as many comments as the Education Department received in its previous rulemaking on Title IX in 2018 during former President Donald Trump’s administration, according to the blog post.
The second rule, released in April, would prohibit categorical bans on transgender athletes’ membership on athletic teams that align with their gender identity. As proposed, the rule would still allow schools to prevent some athletes from playing if their participation interferes with the objectives of the sport, such as competitive fairness or safety. That proposal, which was controversial for people on all sides of the debate, generated 150,000 comments.
The proposed changes come at a time when LGBTQ+ people, especially youth, are the subject of an onslaught of state laws that ban gender-affirming care for minors, require teachers to inform parents about changes to a students’ pronouns or names, and prohibit transgender people from using bathrooms that align with their gender identity.
Since 2020, 21 states have passed laws that bar transgender athletes from playing sports on teams that align with their gender identity, with many of those states specifically prohibiting transgender girls from joining female school teams, according to the Movement Advancement Project, an organization that tracks changes to LGBTQ+ policy. The Title IX regulation on transgender athletes from the Biden administration directly challenges those state laws.
“What we’re seeing right now is an attempt by a violent, loud, angry minority to hold the rest of us hostage,” said Melanie Willingham-Jaggers, executive director of GLSEN, an advocacy organization for LGBTQ+ youth. “That’s what all of this is intending to do.”
A sticky situation for school administrators
The proposed Title IX changes are likely going to require a lot of administrative work for school leaders, as they establish new regulations for how schools determine sports eligibility.
Before the Education Department’s announcement last week, administrators were prepared to have the summer to navigate the policy changes, but now they’ll have to adjust in the middle of the school year, which is a difficult ask, said Sasha Pudelski, director of advocacy for AASA, The School Superintendents Association.
“Mid-year implementation is challenging generally,” Pudelski said. “It means you start the school year with policies and procedures that are going to have to shift.”
The proposed changes would likely require additional staff training, communication with parents and community members, and, in some cases, school board meetings to update school policies and handbooks. AASA recommends that administrators start preparing now by adding time to the school schedule for professional development for staff members who work with Title IX.
The situation may be especially tricky for school districts in states that ban transgender athletes from playing on teams that align with their gender identity. There will likely be lawsuits to challenge those state laws when the rules are finalized, as well as lawsuits from officials in those states challenging the new federal regulation. Conservative lawmakers and state leaders have already threatened to sue the Biden administration if the new rule is finalized as is.
Pudelski would like to see the Education Department allow schools ample time to adjust to the change when it releases the finalized rules in the fall. She’d like to see the new policy take effect in the 2024-25 school year.
“The longer the runway, the easier it is to transition,” Pudelski said. “Even 90 days is preferable to 60 days, but certainly district administrators would appreciate being able to start fresh and ensure that they have the time that they need before the next school year to prepare to fully implement these regulations.”
Finalized rules could be momentous for LGBTQ+ students
Willingham-Jaggers is hopeful that the extra time will allow the Education Department to ensure the proposed rule changes are as strong as possible.
“If in fact this delay is related to making sure the rule is as strong and as inclusive and as robust as possible, [that’s] wonderful,” Willingham-Jaggers said. “Take the time you need to get us the right rule and get us the right guidance.”
In a comment posted in response to the proposed rule, GLSEN urged the department to ensure that “no transgender, nonbinary, or intersex student is denied the opportunity to play school sports.”
While the rule would prevent outright bans on transgender youth participating in sports, it allows some room for schools to still limit student participation, especially in highly competitive sports. As a result, Willingham-Jaggers worries that the rule will still allow some students to be excluded.
Comments reflect intense opinions about transgender athletes in sports
GLSEN’s comment was just one among 150,000 on the Education Department’s rule regarding transgender youth participation in athletics. The comments reflected a range of views, and intense feelings.
Many comments were identical to each other, generated by campaigns to oppose the rule, and argued the rule would be unfair to cisgender women. For example, around 32,000 comments resembled this one:
Others urged the Biden administration to ensure students can’t be prohibited from playing sports, regardless of circumstance:
Many comments voiced their support for transgender athletes:
