TAKE ACTION NOW: Tell Biden that trans youth must be protected under Title IX

The deadline for feedback is May 15.

May 12, 2023

Hi, friends. Last month, the Biden administration released its long-awaited guidance for how Title IX will apply to transgender students in sports.

The proposed rule is a step in the right direction, as it would prohibit blanket bans on trans participation in school sports.

However, the rule is extremely vague, and therefore still leaves room for states, district, and even individual schools to discriminate against trans, non-binary, and intersex student athletes.

This is unacceptable.

In February, Emily Stets wrote an in-depth piece here at Power Plays about what is at stake with this ruling. I highly recommend that you go back and read that newsletter for all of the necessary context, because I’m going to try to keep this newsletter short and to the point.

We have until Monday, May 15 — four days — to submit a public comment to the Biden Administration and tell them that it is imperative that Title IX protects trans youth in sports.

Let’s do this.

How to submit a comment and spread the word

Thankfully, the Harvard Law School LGBTQ+ Advocacy Clinic and the National Women’s Law Center have partnered to create a phenomenal toolkit full of information about Biden’s proposed Title IX rule and why it needs to be strengthened. I’ve included a few highlights from the toolkit in the section below.

And most importantly, these groups have created a very easy way to submit your feedback to the Department of Education:

HERE IS THE FORM: Simply go to the form at the bottom of this page and fill in your name. You will then be provided with a template letter that you can submit directly, or you can personalize your own letter and submit it through the same portal! Very easy.
AFTER YOU SUBMIT YOUR FEEDBACK, SHARE IT: Harvard Law School LGBTQ+ Advocacy Clinic has also put together sample social media posts to help spread the word. And if you put your comment in full in the comments below on this Power Plays newsletter, or email it to me directly, I will amplify your comments on all of my social media channels.

Why Biden’s rule for trans students must be strengthened

We’ve written so much in the past about the importance of allowing trans athletes, particularly trans youth, unfettered access to sports, so this particular newsletter is more about action than education.

But I also understand that knowledge is power, especially when taking on an advocacy role. So I’ve excerpted some of the most important parts of the toolkit below! (Again, I encourage you to check out the whole toolkit — it doesn’t take long to read.)

Here are the basics about what the rule is, and the benefits it has:

The rule proposed by the Department of Education would provide strong protections for transgender student athletes on paper, but without additional clarification will leave room for harmful practices to continue. The rule would declare the transphobic sports bans being passed across the country invalid and require close scrutiny of any restrictions that target transgender and intersex students. The proposed rule is a critical first step in protecting transgender students, but the Administration can and must do more.
What’s good about the regulation: The Administration has made clear this rule would put an end to any proposed or enacted transphobic sports bans that issue a blanket prohibition on trans students being able to participate in sports. Under the proposed rule, any policy that would deny transgender children the ability to play on the sports team consistent with their gender identity must be harshly scrutinized.

Here’s what needs to be improved about the rule (emphasis mine):

The rule should specifically state that there is a legal presumption that Title IX requires trans inclusion in sports, and that the burden is always on the school to overcome this presumption of inclusion. Transgender, nonbinary, and intersex youth need and deserve an opportunity to play school sports alongside their peers. This is especially the case in contexts taht are primarily about the social, educational, and physical benefits of sport, rather than elite competition.
Thus, the Department should also make clear that restrictions on transgender, nonbinary, and intersex students’ ability to play sports are never permitted at the K-12 or club college level.
The proposed rule and the Department of Education’s description of how it would interpret the rule also do not provide enough clarity about what exactly is and is not an “important educational interest,” or what it means for a policy to be “substantially related” enough to survive its standards. The only interests mentioned by the Administration are competitive fairness and preventing injury – broad interests that could leave the door open to harmful practices without further clarification. The proposed rule also fails to set clear guardrails to ensure it is not misused to perpetuate discrimination that harms many students and benefits no one. Eligibility criteria like “gender verification” testing – which includes invasive genital inspections or hormonal chromosomal tests –are not explicitly banned under the regulation. The Administration must make clear those policies – alongside any others that humiliate and harm children and youth–violate Title IX.

If you have any questions, put them in the comments below, I’ll be monitoring throughout the weekend, and will send out a couple of reminder emails as well.

Let’s get these comments in!