Biden Proposes Using Title IX to Stop Blanket Bans on Transgender Athletes Transcript

A new change to Title IX could make broad bans on competition by transgender athletes illegal, but it does allow exceptions in particular cases. William Brangham has the details.

Amna, the proposal would mean any blanket policy prohibiting transgender athletes from competing would violate Title IX. That’s the law that prohibits sex-based discrimination by schools that receive government funding. This comes as 20 states have already passed some form of ban on trans student athletes. Kansas is the latest state to do so. On Wednesday, republican legislators overrode a veto from Democratic governor, Laura Kelly, passing a bill that would restrict transgender students from women and girls sports from kindergarten through college. For more on this proposed rule, I’m joined by Orion Rummler. He covers LGBTQ issues for The 19th News. Orion Rummler, so good to have you on The News Hour. Can you just explain what the Biden administration’s proposal here would mean for schools?

Yes. Thank you so much, William. So the proposed rule that came out yesterday, which is what we’ve been waiting for since July, 2022, it would allow schools, especially high schools and colleges, to keep trans students out of sports teams that match their gender identity if the school follows a list of guidelines that the agency goes into length about, as some of the highlights that schools would have to follow includes the school would have to minimize harm for trans students, the school cannot be making blanket assumptions about trans students, especially trans girls’ physical abilities, and schools also have to be able to prove that the exclusion is part of a genuine educational mandate, which they list, one of which would be fairness and competition. Although the education department said very clearly yesterday that these blanket bans that we’re seeing, like the one in Kansas, these violate Title IX under this proposal, but it does allow some exclusions.

As you were saying, suddenly all of these states that have passed these blanket bans now suddenly could be illegal under this new proposal. What happens in that case?

I asked the education department about this yesterday when they were doing a background briefing with reporters about the Title IX proposal. And in those 20 states you mentioned, several of those 20 states, those laws have been stalled in courts. But as far as enforcement goes, the education department would investigate, and it would talk to schools, it would seek compliance from that school. And usually when the agency has to do a Title IX investigation, a school choose to comply. But if a school does not, then the education department is able and willing to withhold federal funding. So that’s what enforcement looks like when a school or a state has this blanket ban in effect and they’re not complying with this proposal. It would be federal funding withholding.

So what has been the reaction amongst the transgender community? I understand there’s a bit of a mixed response to this.

Right. So a few LGBTQ legal organizations applauded the decision, full stop, and that includes National Center for Lesbian Rights. But then we saw Lambda Legal and another LGBTQ organization, they were more cautious. They said, obviously this proposal is a good thing because it says that a hundred percent of these bans there are legal, but that they’re not sure that this proposal would end discrimination for trans students. And then we’ve seen from trans advocates, especially experts who have been researching anti LGBTQ legislation very closely, they say that this proposal is a betrayal of President Biden’s promise to have the backs of trans youth. They see this as going back on his promise because it allows some of these exclusions, especially for competitive sports in high schools and colleges.

I want to get into some of those arguments recently, and they were kind of highlighted recently in the Kansas legislature, which just as we’ve mentioned, passed a blanket ban. I want to play two clips here that have people who are both against this ban and in favor of the ban… First off, this is D.C. Hiegert of the Kansas ACLU testifying against Kansas’ ban.

Proponents of this bill have said that it is about fairness, alleging it will protect cisgender girls from losing out on trophies and athletic scholarships. But in the three years since the Kansas legislature first introduced a bill similar to this, there has been no evidence of trans athletes causing any harm in Kansas sports, but there is clear evidence that this bill causes harm to trans youth in our state and to all girls who play sports.

This is someone now who is in favor of the ban. This is Riley Gaines. She was a highly ranked NCAA a swimmer. She testified in favor. And she was telling here about what it was like to watch and compete against transgender swimmer Leah Thomas.

We watched on the side of the pool as Thomas swam to a national title in the 500 freestyle, beating out the most impressive and accomplished female swimmers in the country, including three Olympians and American record holders, whereas previously in the men’s division, Thomas ranked 462nd at best. The next day, Thomas and I raced in the 200 freestyle, which ultimately resulted in a tie down to the hundredth of a second. Having only one trophy, the NCAA gave it to Thomas and told me I had to go home empty-handed because Thomas had to hold the trophy for photo purposes.

That is the argument that is made by proponents of these bans, that it is somehow fundamentally unfair to have someone who went through puberty as a male now competing against females in sports. That is their argument, right?

Well, yeah. So most, if not all of the sports bands, they’ll include something about fairness or protecting women’s sports and the title of the bill because a lot of these bills are focused on restricting the ability to trans girls and trans women to compete in sports. So the focus is usually on trans girls. And I’d also point out as part of this conversation, that in the Title IX policy proposal we’re talking about, the education department says clearly, you cannot make blanket assumptions about… You cannot say that all trans girls are physically superior to cisgender girls in sports because that’s a blanket assumption. It’s illegal for you to do that. So as we’re considering the fairness argument, what the education department is saying is that blanket assumptions about that just won’t hold up.

All right. Orion Rummler of The 19th News. Thank you so much for being here.

Thank you, William.