The Department of Education’s draft policy on eligibility for transgender students raises crucial questions about federal rights versus state rights and about who ought to determine eligibility rules.
Last Thursday, the DOE released a notice of proposed rulemaking regarding the application of Title IX—a federal law that mandates gender equity at federally funded schools ranging from kindergarten through college—to transgender athletes. As required by law, the DOE has invited public comment on this plan.
Under the proposed regulation, schools could not “categorically ban transgender students” from teams consistent with their gender identity. Schools must instead develop sport-specific eligibility criteria that can weigh factors such as fairness in competition, risk of sports-related injury, grade and education level, and designation of the team as varsity, junior varsity, intramural or “no-cut” (i.e., anyone can play). The DOE suggests that colleges and high schools would have more discretion than elementary schools to exclude transgender students.
The DOE favorably cites the NCAA’s approach to transgender athlete eligibility. Last year, the NCAA announced a new sport-specific policy. Member schools must follow relevant national bodies for individual sports in determining transgender athlete eligibility. The NCAA’s policy drew from a similar approach used by the International Olympic Committee, which has adapted criteria that stress individualized natures of each sport.
The DOE’s proposal attracted almost immediate criticism from both progressives and conservatives.
Rep. Alexandra Ocasio-Cortez (D-NY) called it “indefensible and embarrassing … a disgrace.”
Ocasio-Cortez’s frustration reflects a shift in policy from the spirit of President Biden’s gender identity executive order issued on the day he was sworn into office, Jan. 20, 2021. Biden pledged to aggressively combat gender identity discrimination so that children would not be “denied access to the restroom, the locker room or school sports” because of their gender identity. The DOE’s proposed regulation falls short of that promise; it provides a pathway for schools to lawfully exclude transgender athletes.
Governor Kristi Noem (R-SD) was just as critical as Ocasio-Cortez, except for the opposite reason.
“South Dakota will not allow this [federal regulation] to stand,” Noem tweeted. “Only girls will play girls’ sports … President Biden, we’ll see you in Court.”
South Dakota is one of 20 states that has banned transgender students from participating in sports consistent with their gender identity. Although the DOE’s proposed regulation permits bans that are justified under a criteria-based test, bans for some sports would likely fail such a test. If a state nonetheless claimed that bans for all sports were justified, excluded athletes could sue, arguing a violation of Title IX’s new regulation.
Judges, rather than the president or governors, will likely have the final say on transgender athletes’ eligibility.
Working in Biden’s favor is the history of administrations interpreting Title IX differently. Under the administrations of Presidents Obama, Trump and Biden, the DOE has employed the rulemaking process to change important due process protections for students accused of violating Title IX and for standards for guilt. This has led to different rights for the accused based on who happens to be president, with Biden’s final changes expected to become public next month.
Courts have historically held a limited role in reviewing agency action. Under federal law and precedent, judges are expected to review agency rulemaking with deference.
But that deference has recently ebbed.
Last year, in West Virginia v. Environmental Protection Agency, the Supreme Court promoted what has been called the “major questions doctrine.” Under it, courts are expected to scrutinize agencies in cases of major significance and demand those agencies cite specific language from Congress that authorizes the agency to act.
Here, the DOE’s interpretation of Title IX for transgender athletes could be challenged as exceeding Title IX’s language.
States (or impacted athletes) could also mount a challenge by emphasizing that sports at the youth and amateur levels are largely overseen by state and local bodies. For many years, states’ athletic associations have played a crucial role in developing sport-specific eligibility and safety rules. They have also determined permissible circumstances for athletic eligibility for transfer students.
That’s not to say the federal government has played no role. The Ted Stevens Olympic and Amateur Sports Act, for example, authorized bodies that oversee individual sports. But as the ongoing debate over a federal NIL law reveals, Congress has historically steered clear of telling states how to handle sports—especially when those sports are connected to education, which is primarily under state and local control.
To that end, states could argue that the DOE has exceeded its legal authority in preventing them from enforcing eligibility rules for transgender athletes. In response, the DOE would likely insist that its proposed regulation regards fundamental civil rights and constitutionally guaranteed equal protections that states and local bodies can’t suppress.
In what might serve as a preview of what to expect, Justice Samuel Alito on Thursday wrote a dissent in a case involving a 12-year-old transgender girl from West Virginia who wishes to run on her school’s cross-country and track teams. Most of the justices, without explanation, denied an application from West Virginia to vacate an injunction of a state law that bars her from participating. Alito, along with Justice Clarence Thomas, dissented.
“This application,” Alito wrote, “concerns an important issue that this Court is likely to be required to address in the near future, namely, whether either [Title IX or the Equal Protection Clause] prohibits a state from restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics.”
Alito’s prediction of the Supreme Court ultimately deciding this topic is likely correct.