Department of Education Withdraws Proposed Rules On Single-Sex Sports Participation By Gender Identity
In April 2023, the Biden administration proposed rules that would have largely barred policies forbidding students from participating in single-sex sports according to gender identity rather than sex.
The Biden administration’s Department of Education, Office of Civil Rights, today withdrew a proposed rule that would have largely barred policies that forbade student athletes from participating in single-sex sports according to their gender identity rather than their sex. Proposed in April 2023, these rules did provide some carve-outs for blocking students who identify as transgender from participating in teams of the opposite sex.
Paul Compton, who was general counsel for the Department of Housing and Urban Development from 2018 to 2020 stated on X: “This is a cynical step—preserving the ability to do this in the future. If the rules had not been withdrawn, they would be subject to the Congressional Review Act. A simple majority vote of House and Senate would repeal the rules and would prohibit the agency from taking similar future action.”
Leaving an unfinished rule in place would permit the Trump administration an easier task of rewriting it to its liking.
According to a notice of rulemaking document submitted to the Federal Register on Friday, The U.S. Department of Education is withdrawing the notice of proposed rulemaking entitled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams.” The proposed rule would have amended Title IX regulations, which since 1972 have been instrumental in supporting women and girls’ inclusion in sports.
According to the proposed, and now withdrawn, rule, if a school receiving federal funds “adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or educational level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”
During a 30-day public comment period, the education department received over 150,000 public comments on the proposed rule.
In the document withdrawing the proposed rule, the department stated:
“Commenters offered a broad spectrum of opinions on the Athletics NPRM [notice of proposed rule making]. Some commenters expressed general support for the proposed regulation, and some asked the Department to modify the proposed regulation to provide for more students to participate on a sex-separate athletic team consistent with their gender identity, particularly at the elementary and secondary school levels. Other commenters opposed the proposed regulation in its entirety and asked the Department to withdraw the Athletics NPRM. Numerous commenters expressed concerns about the application of the proposed regulation in practice, arguing that the proposed regulation was unclear or too complex for recipients to implement, and many commenters offered alternative regulatory text for the Department’s consideration to clarify, simplify, elaborate on, or substantively change the focus and impact of the proposed rule. Additionally, a significant number of commenters included discussions of case law, scientific studies and research papers, and existing athletic association policies and practices regarding athletic eligibility criteria that, according to the commenters, supported the adoption, modification, or withdrawal of the proposed regulation.”
The department then acknowledged the multiple pending lawsuits “related to the application of Title IX in the context of gender identity, including lawsuits related to Title IX’s application to athletic eligibility criteria in a variety of factual contexts.”
In light of both those lawsuits and the received comments, the department decided to withdraw the proposed rule.
“We do not intend for a final rule to be issued on this NPRM,” the document stated.
The document continued: “If, in the future, we decide it is appropriate to issue regulations on this topic, we will do so via a new notice of proposed rulemaking.”
The suggestion that the Department of Education might back the inclusion of transgender females in women and girls’ sports during the next four years seems highly unlikely, given the second Trump administration begins in exactly one month.
As PBS reported, the president elect has pledged that on day 1, he would cut federal funding for, he said, “any school pushing critical race theory, transgender insanity, and other inappropriate racial, sexual or political content on our children.”
While much more research is needed, multiple research papers have found that even after extended treatment with cross-sex hormones, natal males who identify as transgender females do maintain a competitive advantage in women’s sports.
To read more on the topic, I highly recommend On Sex And Gender: A Commonsense Approach, by Duke Law Professor and former elite track athlete Doriane Lambelet Coleman. She writes cogently, fairly and compassionately about the intersection of law, feminism, biology, sports and transgender civil rights.
This is a developing story. Check back in for commentary from experts. I will add that later.
I am an independent journalist, specializing in science and health care coverage. I contribute to The New York Times, The Guardian, NBC Newsand The New York Sun. I have also written for the Washington Post, The Atlantic and The Nation. Follow me on Twitter: @benryanwriter and Bluesky: @benryanwriter.bsky.social. Visit my website: benryan.net
By the way the HS girls who were unfairly beaten by the 2 boys in that photo for 4 years finally got tired of it and sued Connecticut Association of Schools back in 2020. The suit is still active and is supposed to be going to trial soon after being revived by a Federal Appeals court. It will be the first of its kind to do so:
https://wng.org/opinions/a-long-road-to-their-day-in-court-1703123755
Thanks! Baby steps....
Trump talks big of course, but the law is another matter. Any Executive Order will be challenged in court. It'll take time to officially withdraw the Title IX changes that Biden did manage to implement.
The next big fight (hopefully, if Trump's people take it on) will be to officially reverse the policy with new Title IX rule making, and explicitly ban the whole sex = "gender identity" nonsense under Title IX, which would supercede the state laws currently allowing it in blue states. That will result in blue states challenging the rule in Federal Court. Legal prospects look good in that department since we won in Federal Court in nearly every case where red states challenged Biden's rule; several Federal judges have issued temporary orders specifically saying that sex =/= "gender identity" under Title IX.
But. That scenario would only happen if Trump's people 1) Care what is going on in blue states and 2) Continue to issue new rules under the auspices of the Dept. of Education, which they want to get rid of altogether.
So who knows what will actually happen.
Of course, Congress could create a shortcut by reviving the Protection of Women and Girls in Sports Act of 2023, and add provisions for bathrooms and locker rooms, etc., but that too will be challenged in court by blue states no doubt.