Newly Proposed Title IX Regulations for Transgender Athletes

Published: McLane Middleton
April 18, 2023

Title IX is the civil rights law that was enacted as part of the Education Amendments of 1972. Title IX prohibits discrimination based on sex in any school or any other education program that receives federal funding. According to the U.S. Department of Education, there are approximately 17,600 school districts, over 5,000 postsecondary institutions, charter schools, for-profit schools, libraries, museums, vocational rehabilitation agencies and education agencies that must “operate its education program or activity in a nondiscriminatory manner free of discrimination based on sex, including sexual orientation and gender identity.”

Last year, the “Protection of Girls and Women in Sports Act,” also known as the H.R. 734 bill, was introduced in Congress. The bill would potentially ban transgender and intersex girls and women from competing in sports across the country.  If Congress passes H.R. 734, it could become part of the Title IX legislation.  Earlier this month, however, the Biden Administration proposed its own rules concerning transgender athletes’ participation in school sports.  Such rules would allow schools to reject transgender athletes from competing on sports teams that align with their gender identity whenever issues of physicality and fairness arise.  However, the Biden Administration’s proposed rules would not allow for blanket bans on transgender athletes competing on team sports as this would be a violation of Title IX.  The Administration contends that the new rule is an attempt to balance a framework that protects students “from being denied equal athletic opportunity” while providing schools the “flexibility” to develop their own policies.

Recently, a group of 40 professional athletes, including Sue Bird, Megan Rapinoe, and Becky Sauerbrunn, sent an open letter to the U.S. House of Representatives regarding the anti-transgender sports bans. The letter directly aims at the H.R. 734 bill.  In the letter, the athletes expressed that the H.R. 734 bill does not safeguard girls and women athletes but rather excludes them from receiving “mental and physical health benefits.” Moreover, the letter stated, in part, that lawmakers should instead turn their attention to the challenging issues girls and women athletes are currently facing, such as equal pay, lack of access and equity for girls of color and girls with disabilities, and the mistreatment and abuse of women-athletes.