The Honorable Joseph Biden, Jr.
President of the United States
The White House
1600 Pennsylvania Avenue
Washington, DC 20500
Dear President Biden:
The National Women’s Law Center and Women’s Sports Foundation, joined by 48 women’s rights and gender justice advocates, applaud your administration for releasing proposed changes to the Department of Education’s rules implementing Title IX of the Education Amendments of 1972 (“Title IX”) on June 23, which was also Title IX’s 50th anniversary (“the Title IX NPRM”). By clarifying protections for LGBTQI+ and pregnant and parenting students, and ensuring that schools take meaningful and effective action to address and prevent sex-based harassment, these proposed rules are a critical step towards achieving gender equity in schools. These proposed rules, however, did not address participation in athletics, which the Department indicated it would consider in a separate rulemaking.
We are writing to implore your administration to swiftly release a Title IX athletics rule that would ensure all students, including transgender, non-binary, and intersex students, can participate fully and equally in school sports. This rule should clarify that any policy governing participation should be commensurate with the level of participation with youth, non-elite level sport participation centered around inclusion, access to participation and opportunities, and the educational benefits that sports provide young athletes. This is especially critical as LGBTQI+ students face pervasive discrimination in school, including sexual and verbal harassment, violence, and excessive discipline by faculty. Compounding this is the barrage of vicious legislative attacks on LGBTQI+ students by state lawmakers across the country, including through recently passed state laws that ban transgender, non-binary, and intersex students from participating in sports. Data shows that such targeting of LGBTQI+ students can be deadly: these discriminatory policies have exacerbated the high risk of depression and suicidality LGBTQI+ students already face by singling them out for mistreatment. Without regulations that clearly addresses students’ rights to participate in athletics, state lawmakers will only be emboldened to go further in their quest to rob LGBTQI+ students—many of whom are young children—of their right to participate fully and equally in school sports. The Department must make it plain it will not abide targeting LGBTQI+ students. This includes, at a minimum, finalizing a Title IX athletics rule no later than the beginning of 2023, and concurrently with the pending Title IX NPRM. Students are in urgent need of protection from your administration to ensure they can benefit from Title IX’s promise of equal access in school sports.
As advocates for gender equity, we are well aware of the significance of Title IX’s mandate that all students must be able to access the benefits of an education free from sex discrimination. Promoting the full inclusion of all students in school sports is essential to enable them to fully access the benefits of an education. Students who play sports are more likely to graduate from high school, go to college, and achieve higher grades and scores on standardized tests. Sports participation also fosters in students self-confidence and a sense of community amongst their peers. These benefits are especially crucial for transgender, non-binary, and intersex students, as they can offer a respite from the isolation they often face at school and help alleviate the high risk of depression or suicidality they face. Further, denying transgender, non-binary, and intersex students these benefits because of who they are is impermissible sex-based discrimination under Title IX.
Ensuring that all students, including transgender, non-binary, and intersex students, can enjoy the benefits of sports is essential to achieving Title IX’s promise; moreover, discriminatory and intrusive barriers to participation ultimately harm all women and girls. Indeed, allowing transgender athletes to participate in sports correlates with increased participation by all girls. CDC data shows girls’ participation in high school sports remained unchanged from 2011-2019 in states that adopted transgender-inclusive policies—but decreased in states with policies excluding trans student-athletes. This data suggests that excluding these students benefits no one, and that there may be a chilling effect from state policies that reenforce overbroad sex stereotypes, including white-centric notions of femininity and the idea that there is something suspiciously masculine about athletic achievement. Sports bans often expressly require “sex verification” procedures, which subjects women and girls to a variety of humiliating, invasive, and unscientific practices for the purported purpose of determining whether they are “really” girls or women, creating new risks for sexual abuse of young student athletes and especially harming women and girls who do not conform to stereotyped ideals about femininity, whether transgender or cisgender. We urge the Department to protect students and ensure that the Title IX rule prohibits efforts by lawmakers to effectuate sports bans, and, by the same token, the idea that it is permissible to discriminate against some students because of who they are or how they look.
This is an opportunity to reverse the alarming trend of lawmakers singling out LGBTQI+ students in an effort to score political points and, moreover, reject the bigoted premise that they do not deserve the same civil rights protections as their peers. In addressing athletics, the Title IX rule should do the following:
- Affirm transgender, non-binary, and intersex students’ rights under Title IX to participate in sports consistent with their gender identity;
- Clarify that state sports bans against transgender, intersex, and non-binary students constitute impermissible sex-based discrimination;
- Make clear that sports bans encourage dangerous and unscientific sex verification practices, which especially impacts intersex youth and Black and brown girls;
- Clarify that Title IX preempts any state law or policy that bans transgender, non-binary, and intersex students from playing sports on their ability to play sports consistent with their gender identity; and
- Clarify that any discussion on youth, non-elite level sport participation should be centered around inclusion, access to participation and opportunities, and the educational benefits that sports provide young athletes; as such, no restrictions of any kind at this level should be permitted.
In short, the administration should make it clear to state lawmakers and decision makers that there will be consequences for effectuating sports bans and other restrictions on the ability of students to play sports simply because of their gender identity—including the potential loss of federal funding.
Despite fifty years of progress towards gender equity made under Title IX, students continue to face discrimination in school on the basis of their sex, with LGBTQI+ students facing increasing levels of targeted hate, often focused on their right to participate in sports. They need the Biden administration’s full support and protection—both on and off the field. Thank you for your consideration of our call for the prompt release of an athletics rule protecting students’ rights to play consistent with their gender identity. If you have any questions about this letter, please contact Auden Perino ([email protected]) and Sarah Axelson ([email protected]).
National Women’s Law Center and Women’s Sports Foundation, joined by (see full list of signatories)