Advocates call Biden's transgender athlete proposal either ‘a step forward’ or ‘a betrayal’

The Biden administration has proposed a new rule that could limit the participation of transgender students in sports.

This plan essentially bars blanket bans of trans athletes but leaves wiggle room for schools to place some restrictions at more elite levels. The federal action comes as a record number of anti-LGBTQ bills are being floated at the state level. So far this year, at least 650 bills are being considered in 46 states.

Jo Yurcaba, a reporter who covers LGBTQ issues for NBC Out, says prior to the proposal, the Biden administration had said that Title IX – which prohibits discrimination based on sex and federally funded education programs – should be interpreted to include protection from discrimination based on gender identity and sexual orientation.

“So what this rule would do is basically say that these categorical bans on trans athlete participation that we've seen in 20 states are against the law,” Yurcaba says. “But … they would permit some restrictions in certain sports at more elite levels of competition, like in high school or college.”

Logan Casey, a senior policy researcher and advisor at the nonprofit Movement Advancement Project, says this week Kansas became the 20th state to implement a ban against transgender athletes in sports.

“Which, by the way, means that almost one in three transgender youth in the country live in a state with one of these bans,” Casey says.

The proposed regulation will be open for public comment for 30 days.

The Education Department is aiming for the plan to be finalized sometime in May.

On what might change under federal plan for transgender athletes 

Jo Yurcaba: “What it's saying is that they would permit some restrictions in certain sports at more elite levels of competition, like in high school or college. And they would only allow those if the restriction is ‘substantially related to the achievement of an important educational objective.’ And the restriction must minimize harms to students whose opportunity to participate consistent with their gender identity would be limited or denied. So the restrictions would have to be much more specific, but it would still allow for some kind of restriction.”

On plan’s significance as more states pass bans on trans athlete participation 

Yurcaba: “It could potentially have a big impact. The Education Department said [Thursday] that the way it would enforce this against states that have already passed these laws is by investigating and potentially revoking their federal funding if they refuse to come into compliance. So that could be a potential impact. It could also have the impact of kinda letting states know that you have to be very specific in the way that you restrict trans athlete participation or else you could have your federal funding revoked. But the impact it could also have is that states could now try to enact really specific policies, or at least somewhat more specific policies, to restrict trans athlete participation. And it seems like the Education Department would have to kind of go through those one by one and see what fits their proposal and what doesn't.”

On mixed reactions from transgender advocates 

Yurcaba: “Some advocates are saying that this is a step forward because it does say that these categorical bans would be against the law. And so it would help protect trans students in those states where these bans have already passed and in the states that are considering them, because more are considering them. But some advocates have said that this is a betrayal by the Biden administration. President Biden has said, in at least two State of the Unions now, speaking directly to transgender young people, ‘I have your back.’ And so some people have said that they feel like this is a betrayal because they say that this kind of relies on transphobic ideas about trans athletes having an advantage in sports at higher levels, when some of them say that that isn't borne out in data.”

On the environment in which this is all happening 

Logan Casey: “We are tracking at least 650 anti-LGBTQ bills across the country. And that is not only a record breaking year. It more than doubles the previous record, which by the way, was just last year. So we are seeing an extraordinary attack on LGBTQ people, and especially transgender people, across virtually every aspect of our lives. This isn't just a one off year as we've been making lots and lots of progress. This isn't an abnormality. This is, again, a record breaking year that's part of a much broader and coordinated attack on our lives.”

On anti-trans bills passed just this week 

Casey: “This legislative session has been unlike any before it. And this week is no different. So just this week alone, two different states, Idaho and Indiana, enacted a new ban on medically necessary care for transgender youth. In Kansas, the governor's veto of a anti-transgender sports ban was overturned and Kansas now becomes the 20th state in the country with one of these bans, which, by the way, means that almost one in three transgender youth in the country live in a state with one of these bans. And there are at least a dozen more anti-trans bills sitting on governors desks right at this moment, waiting for a decision, not to mention many, many more bills that are still very actively moving through state legislatures around the country.”

On the political context of what is happening 

Yurcaba: “So advocates have a lot of different theories, but one of the more prominent ones is that this is part of a right wing backlash after marriage equality, that the right is trying to find some kind of social issue to latch on to, to motivate voters. And so they've gone for trans people, in part, because a lot of people don't know a trans person. Even fewer people know trans youth, so they don't know what their lives look like, what their health care looks like. So they've gone for this issue that people don't know a lot about. And, it's also a popular message to say, let's protect children, let's protect fairness in sports. It's a message that a lot of people can get behind without actually knowing what the effects of these policies would be. And so they're really capitalizing on that lack of information.”

Casey: “Ppoliticians and many of these coordinated interest groups and extremists pushing these bills across the country are exploiting the lack of information that many people have about transgender people for – these politicians and extremist groups – their own political gain. And I think that we're seeing these bills really take hold in a number of state legislatures across the country, and particularly as we're ramping up to big election years. And so we're really seeing a lot of that doubling down this year going into next year. But I think while they may often claim that they're looking to protect kids or all the things that proponents of these bills are saying, when you actually look at what the bills themselves are doing, their goals become much more evident. So we see, for example, in the medical care bans, the bills that are seeking to ban medically necessary care for transgender youth, a growing share of those bills every year over the past few years target adults too, in some fashion. And so it's not just that they're narrowly trying to focus on children. They're actually targeting the transgender community as a whole, if not the LGBTQ community more broadly.”

On what to watch for going forward 

Yurcaba: “There's legislation being considered in dozens of states and it's moving very quickly. I think we saw that this week in Kansas, for example, and a lot of this legislation in Tennessee is moving really rapidly. It's almost hard to keep up with how quickly things are passing. I think what we'll also see is a lot of public comment on this rule proposed by the Biden administration, because what it's kind of being painted as is a compromise. And one thing I’lk kind of point out is that this rule was also proposed about a year after the controversy surrounding Lia Thomas, the University of Pennsylvania swimmer who set records at a meet just over a year ago  and was kind of used – her name was brought up in debates over trans sports bills – because people thought that her competing was unfair. So I think that the Biden administration is kind of stepping in and saying we need to take some kind of stance on this and also not alienate people that they think support restrictions in some form. So they've stepped in on that. And we're going to see a lot of, I think, public comment and backlash from the trans community and from advocates over the next month.”

Ashley Locke produced and edited this interview for broadcast with Todd Mundt. Locke also adapted it for the web.