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Biden Title IX rules on trans athletes set for election-year delay

The Biden administration is preparing to finalize sweeping rules in coming weeks governing how sex discrimination is addressed in schools, including new protections for transgender students. But officials plan to put off a companion regulation outlining the rights of trans athletes, according to people familiar with administration planning.

Athletics is among the thorniest issues confronting supporters of transgender rights, including those in the Biden administration. Polling shows that clear majorities of Americans, including a sizable slice of Democrats, oppose allowing transgender athletes to compete on girls’ and women’s teams. Twenty-five states have statewide bans on their participation, with proponents arguing that trans women have a biological advantage over other participants.

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The Biden administration’s proposed regulation, published in April 2023, took a nuanced approach. It would outlaw blanket state bans but gives schools a road map for how they can bar transgender girls from competing in certain circumstances, particularly in competitive sports.

Nonetheless, issuing such a rule risks injecting the issue into an election year in which President Biden faces a close contest with former president Donald Trump, who has promised to ban trans women from women’s sports if reelected.

“Folks close to Biden have made the political decision to not move on the athletics [regulation] pre-election,” said one person familiar with the administration’s thinking. “It seems to be too much of a hot topic.”

A second person reported having received the same message from the administration. Both spoke on the condition of anonymity to discuss private conversations.

Administration officials did not dispute that the sports rule would be put off but declined to comment on specific timing or any possible political motivations.

A senior Education Department official, who spoke on the condition of anonymity to reflect internal thinking, noted that the main sex discrimination regulation was issued nine months before the sports proposal and is now in the final stage of review at the White House Office of Management and Budget. He said the department “is still reviewing” the sports regulation and emphasized that it received a crush of 150,000 public comments, “which by law must be carefully considered.”

“The Biden-Harris Administration is committed to ensuring all students are guaranteed an educational environment free from discrimination on the basis of sex,” the department official said.

The sports regulation is part of a wide-ranging rulemaking underway on schools’ obligations under Title IX, which bans discrimination on the basis of sex in colleges, universities and K-12 schools that receive federal funding. The main, far more sweeping rule, expected soon, will cover other issues governed by Title IX, including schools’ obligations to investigate allegations of sexual harassment and assault.

That main Title IX regulation, proposed in June 2022, also says that the law’s prohibition on sex discrimination includes discrimination based on gender identity as well as sexual orientation. The administration has already said this is how it interprets Title IX, but this is the first time that would be codified into a regulation, which would give it additional force.

As proposed, it would compel schools to let transgender students use bathrooms that align with their gender identity, ban bullying based on their gender identity and ensure students are addressed by the pronouns they use. Schools that fail to follow these rules would be subject to investigations and risk losing federal funding.

But in 2022, with midterm elections looming, the administration cleaved the question of sports from the main regulation and promised to address that in a separate proposal. Last May, the Education Department said both would be released in October – a deadline that came and went without action.

In February, the main Title IX regulation moved to the final stage of review at the White House, while the sports regulation remains under consideration at the Education Department.

The proposed sports regulation, which was published in April 2023, attempted to strike a balance between the rights of transgender students and concerns that other athletes would face unfair competition. While not allowing blanket bans on transgender competitors, it would allow schools to implement narrower restrictions after considering factors such as the sport involved, the age of the students and the level of competitiveness. Schools would also be required to show that the decision relates to an important educational objective and minimizes harm to others.

Advocacy groups have pushed the administration to finalize both rules. They argued that given the state laws now in effect, the two regulations need to be issued together and soon. And while some transgender advocates have complained that the sports rule would still allow for discrimination, most are pushing for it to be completed to provide more protection than currently exists.

“Especially in the midst of this aggressive attack on transgender and gender expansive youth, the administration cannot employ a piecemeal approach when protecting LGBTQI+ students,” said a letter to Biden this month signed by more than 80 advocacy groups focused on women’s and LGBTQ+ rights and abortion access.

While Republicans in statehouses have enacted bans on transgender sports, GOP-run House has worked to pass federal legislation on the issue. Last April, the House approved a national ban on transgender women competing on girls’ and women’s teams; the measure has not been taken up in the Democratic-controlled Senate. A bill barring trans women from Olympic teams cleared the House Judiciary Committee this month on a party-line vote. Republicans made their case in part by highlighting objections from some athletes to the presence of trans competitors.

“The reality is anti-trans lawmakers are expanding the scope of their attack every day,” said Caius Willingham, senior policy advocate at the National Center for Transgender Equality.

But while he favors finalizing the rules quickly, others said the Biden strategy makes sense politically.

“There are people who would say this is not a fight we need to have before this pivotal election,” said Ben Becker, senior vice president at Precision Strategies, who has worked with LGBTQ+ groups. “This is an issue that Republicans have weaponized. For us to just follow them down that rabbit hole, fighting on their terms – that’s never going to be good.”

Conservative opponents say both regulations should be withdrawn because Title IX’s prohibition on discrimination “on the basis of sex” should not be read to include gender identity.

In a meeting last month with officials at the Office for Management and Budget who oversee the final step in the regulatory process, the conservative group Defense of Freedom Institute argued that even if the sports regulation is held back, the main Title IX regulation will require equal treatment in sports because the new rules redefine sex discrimination to include gender identity.

The proposed regulation would “require educational institutions to allow biological males who identify as female to compete in women’s and girls’ athletics,” the group argued in a memo presented at the meeting. The group added that state laws passed to “protect the rights of biological girls and women” will provoke investigations by the Education Department.

The main Title IX regulation would replace one now in place that was written during the Trump administration, which emphasized rights of the accused for schools considering sexual harassment allegations. For instance, it required court-style hearings to adjudicate complaints and gave the accused the right to cross-examine accusers. As a candidate in 2020, President Biden signaled he would replace the regulation, and early in his term, he directed the Education Department to begin the laborious process of reviewing and ultimately writing a new set of rules.

Under the proposed Biden version, neither court-like hearings nor cross-examinations would be required. The proposal also broadens the definition of sexual harassment to include all unwelcome sex-based conduct that created a hostile environment by limiting or denying a person’s ability to participate in school. The definition on the books now – from the Trump-era rule – required that the harassment be severe and pervasive.

The Biden version would also include protections against discrimination related to pregnancy. With abortion rights a major political issue, it’s possible that those protections may be enhanced or at least emphasized, one person familiar with the planning said.

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