Education Department acts to advance transgender, nonbinary inclusion in youth sports

The Biden administration is quietly making headway on its promise to protect nonbinary and transgender student athlete eligibility and inclusion on college and K-12 sports teams.

The Education Department sent a proposed Title IX rule on the topic to the White House Office of Management and Budget in late March, the first step in the rulemaking process. The proposal isn't public, however, and the Education Department did not share its contents.

Education Department spokesperson Vanessa Harmoush would say only that "we are continuing our work to release a proposed Title IX regulation on students’ eligibility to participate on athletics teams” as part of the agency's commitment to equal educational opportunity for all students.

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Some kind of regulation has long been expected: Education Secretary Miguel Cardona said during a confirmation hearing two years ago that he supported access to athletics for transgender students.

“I think that it’s critically important to have education systems and educators respect the rights of all students, including students who are transgender, and that they are afforded the opportunities that every other student has to participate in extracurricular activities,” Cardona said in response to a question from Sen. Rand Paul, R-Ky.

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What are the next steps?

It could take months for the OMB to approve the proposed rule, which would then be opened to public comment. Then a final rule would be released.

If there is a new administration after the 2024 election, officials could choose to reverse the regulation.

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What do supporters and opponents say?

Advocates for the rule have said Title IX law should apply to all sex discrimination, including against transgender and nonbinary students. Supporters have criticized the Biden administration for not moving fast enough.

Fatima Goss Graves, president and CEO of the National Women's Law Center, last June praised the Biden administration's proposal on changing Title IX rules related to sexual harassment and assault, but she also called for the administration to "move quickly to affirm the ability of trans students to fully participate in sports."

Meanwhile, opponents of the rule flooded the Education Department with comments on the Biden administration's other proposed revisions to Title IX, which do not encompass sports participation.

"It will further harm women in the area of sports competition, one of the things Title IX was originally intended to protect!" one commenter wrote. "Girls who have excelled in sports are at an unfair disadvantage competing with biological males who identify as girls. Prioritizing gender identity ideology over actual biology in sports, activities, and programs is harmful to girls, including in competing for scholarships."

Advocates say they should've been ready: Sports leagues were unprepared for avalanche of anti-LGBTQ legislation.

Which states ban sports participation based on gender identity?

Arizona, Florida, Louisiana, Oklahoma and Texas are among the states working to or that already restrict transgender and nonbinary student participation in sports.

More: Louisiana bans transgender athletes from competing on girls and women's sports teams

Any federal law regulating transgender and nonbinary athlete inclusion would trump those state bans, though lawsuits could intervene.

Some states are taking separate action to ban gender-affirming care or target the LGBTQ population in other ways.

And at the federal level, H.R. 734, dubbed the Protection of Women and Girls in Sports Act of 2023, would "generally prohibit school athletic programs from allowing individuals whose biological sex at birth was male to participate in programs that are for women or girls." The bill, sponsored by Republican Rep. Greg Steube of Florida, is expected to come to a vote soon.

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What about other changes to Title IX?

The Biden administration is expected to release a new set of Title IX rules next month that would reverse some of the changes that gave more rights to students accused of sexual assault and harassment created by former Education Secretary Betsy DeVos.

The new rule could encompass protections for LGBTQ students for the first time.

On Tuesday, 124 advocacy organizations, including Advocates for Youth, End Rape On Campus, Equal Rights Advocates, It’s On Us and Know Your IX, wrote to President Joe Biden to urge the Education Department to finalize the rule by May so it can take effect for the 2023-24 academic year.

"Students will continue to suffer under the harms of  the Trump administration’s Title IX rules until the Biden administration intervenes," they wrote. "Your administration has repeatedly promised to address these harms. Survivors of sexual violence are depending on you to keep this promise."

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Contact Kayla Jimenez at kjimenez@usatoday.com. Follow her on Twitter at @kaylajjimenez.

This article originally appeared on USA TODAY: Biden administration moves to include transgender, nonbinary athletes