DOE’s new proposed Title IX regulations would address gender identity in athletics
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Last week, the U.S. Department of Education released its new proposed regulations for Title IX’s application to athletics. If passed, SU must operate under a new set of standards for the role of gender identity in school sports.
While the set of regulations would prevent institutions from banning transgender students from athletic participation solely on the basis of gender identity, it also retains provisions which would allow a number of listed exceptions.
Schools under the regulations are able to preserve or impose sex and gender-based restrictions as long as those restrictions are “substantially related to the achievement of an important educational objective.” The proposal lists sports-related injury and “fairness in competition” as causes which may be relevant to its definition of those objectives. Otherwise, it does not lay out explicit guidelines for schools making decisions about gender identity in athletics.
Some lawmakers and experts expressed disappointment in the proposal and pointed to a lack of structure as a main pitfall. To Lindsey Darvin, professor in the Falk College of Sport and Human Dynamics with a research interest in gender equity in sports, the plan makes the application of Title IX more confusing and problematic for schools working to enforce it.
She said because it essentially only lays out that individual schools will make their own regulations for transgender athletes, it creates excess pressure for universities like SU to determine what policies and decision-making processes are best.
Rick Burton, an endowed sports management professor in the Falk College, said there won’t be an immediate change in what schools across the country are doing, including SU. He said because Title IX is a federal omnibus, any regulations attached to it are compulsory because although a private university, SU receives some federal funding.
As a private institution not controlled by a religious organization, SU is subject to all Title IX regulations and provisions outside of those applying to admissions practices.
SU has come out against other updates to Title IX in recent years. In August 2020, the university put out a statement expressing its disapproval and reluctant compliance with updates it projected would create barriers for survivors of sexual assault and harrassment to coming forward.
The USDE maintains that the proposed regulations have a net benefit for transgender students. In an April 6 press release, U.S. Secretary of Education Miguel Cardona said the regulations were overall designed to support Title IX’s protection for equal athletics opportunity.
“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination,” Cardona wrote.
In the press release, the USDE emphasized the facet of the plan which would render any categorical ban of transgender students on sporting teams in violation of Title IX. In a letter to the Biden administration, a group of lawmakers criticize the space for restriction outside of that provision.
“When discussing questions around fairness in sports, rather than granting credence to false narratives around the supposed advantages of trans athletes, we should instead be asking why trans people are so deeply underrepresented- in their participation, in their successes, and in athletic scholarships,” the letter reads.
Darvin also identified the exception in the “educational objective” of fairness as an issue in debates over gender identity in sports overall. The premise that sports are fair, she said, is misguided in the first place.
“One of the big problems with all this right now, is we are romanticizing sport as this very fair and level playing field and sport inherently is not fair,” she said. “Sport is probably the furthest thing from fair, other than the fact that the rules on the court and the field are the same.”
The proposal also includes provisions to distinguish between sports, levels of competition and grade or education level in judgments regarding transgender athletes. For Darvin, the proposal’s reference to the fact that governing bodies like the NCAA set criteria in national and international competition ignores the fact that in the U.S., a lack of federal standardization means discrepancies in how Title IX functions across the country.
“That to me is incredibly, incredibly problematic,” she said. “(If you) consider each individual sport when you make these regulations, you can essentially govern different sports differently in terms of penalty policy and regulations and compliance.”
Now, following the proposed regulations’ release, the proposal is set to enter a period of public comment during which lawmakers, education officials and the public can submit criticisms of the USDE’s plan.
The public comment period will begin upon the proposal’s addition to the Federal Register, and end after 30 days.
