The Biden administration wants to expand federal laws to ensure that LGBTQ2S+ students have protections from discrimination at school.
The proposed amendments would mark the first time trans students are explicitly safeguarded under Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in any school or U.S. education program that receives federal funding. The changes were announced by the Department of Education (DOE) on June 22 to coincide with the 50th anniversary of Title IX’s enactment.
“It is the Department of Education’s responsibility to ensure all our students can learn, grow and thrive in school no matter where they live, who they are, whom they love, or how they identify,” Education Secretary Miguel A. Cardona told reporters on Thursday morning, in comments cited by the New York Times.
The proposal will certainly spark further debates around trans inclusion, particularly in sports. Over the past two years, at least 18 states have passed laws restricting the participation of trans athletes in K-12 and college athletics.
Amid the nationwide assault on trans rights, conservatives have criticized the Biden administration’s position on Title IX. Last year, the DOE said that trans students were already protected under the law—citing the landmark 2020 Supreme Court ruling that LGBTQ2S+ employees are covered under provisions of the Civil Rights Act of 1964 banning workplace discrimination.
“Fifty years of protection for women and girls in school activities are about to be wiped away because the Biden administration embraces woke gender ideology over basic human biology,” said Kevin Roberts, the president of the conservative think tank Heritage Foundation in a Thursday statement.
The newly proposed regulations state that “preventing someone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Title IX.” However, they do not directly address the issue of denying trans students the opportunity to play on sports teams that match their gender identity.
The DOE promised to issue guidance for school athletics programs to allow students to participate in sports in alignment with their lived gender at a later date. Cardona did not specify when those guidelines might be expected.
“We decided to do a separate rule-making on how schools may determine eligibility while upholding Title IX’s nondiscrimination guarantee,” he said.
Pro-equality groups in the U.S. welcomed the moves from the Biden administration. The National Women’s Law Center called on the DOE to codify protections for trans athletes in Title IX after more than 300 anti-LGBTQ2S+ bills were introduced in 2022—the majority of which target trans young people who wish to play sports or access gender-affirming care.
“To fulfill Title IX’s promise in protecting all students, we urge the Biden administration to move quickly to affirm the ability of trans students to fully participate in sports,” the organization said in a statement.
The proposed changes are intended to restore cuts to Title IX made during Donald Trump’s presidency. Under Trump, the definition of sexual harassment under Title IX was narrowed in favor the due process rights of students accused of harassment and assault. New amendments required schools to hold court-like proceedings that mandated cross-examination of the alleged perpetrator and victim.
Advocates for sexual assault survivors found those rules too rigid and potentially damaging to victims.
“It cannot be overstated how much student survivors need these Title IX rule changes to ensure fair grievance processes, and guarantee that survivors’ education is not further interrupted by the effects of sexual violence,” Emma Grasso Levine, manager of the youth-led advocacy group Know Your IX, said in a statement published in the Times.
The new proposal, which faces a 60-day public comment period before being finalized, comes after Biden announced the previous week that he intends to sign an executive order in support of LGBTQ2S+ Americans. Unveiled on June 15, the order reportedly seeks to prevent LGBTQ2S+ youth from being subjected to the discredited practice of conversion therapy and addresses discriminatory bills attacking trans youth.
A final draft of Biden’s executive order has yet to be publicized, and it’s not clear when he intends to sign it.