US Organizations Call for Clarification on Proposed Title IX Changes

May 19, 2023 

This week Athlete Ally joined with Transgender Legal Defense and Education Fund (TLDEF) and the Harvard Law School LGBTQ+ Advocacy Clinic (the Clinic) in submitting a public comment in response to proposed rule changes to Title IX in the US. The group is urging officials to clarify new proposals due to concerns that it could lead to limits on sports participation of some transgender, non-binary and intersex (TNI) student athletes. 

Over the past few years, there has been a record number of bills targeting LGBTQ+ rights introduced in state legislatures across the country. A significant number of these bills target transgender youth and prohibit trans kids from participating in school sports and limit access to gender-affirming healthcare.

There are currently more than 500 anti-LGBTQ bills pending in state legislatures, with nearly 380 bills specifically targeting transgender people. In Kansas and North Dakota, state legislatures enacted bans on allowing transgender students to participate in school sports. Last month, the US House also voted in favor of the 'Protection of Women and Girls in Sports Act' which would prohibit trans girls from participating in school sports. 

Title IX - the landmark Title IX of the Education Amendments of 1972 legislation in the United States prohibits sex discrimination (including pregnancy, sexual orientation and gender identity) in any education program or activity receiving federal financial assistance. Title IX has positively impacted the lives of millions of people with its non-discrimination protections. The proposed rule changes released on April 6 affirm that it is illegal for schools to broadly ban TNI students from sports teams that align with their gender identity rather than their assigned sex at birth. 

However, TLDEF, the Clinic and Athlete Ally believe that there are issues with the intelligibility of the rule as it’s written. The group argues that it doesn’t provide “sufficient clarity to prevent bad actors from attempting to limit the participation of some TNI athletes based on impermissible sex- and race-based stereotypes.” 

“Opponents of transgender equality are perpetuating the myth that trans people – and specifically trans women and girls – are a threat to cis women and girls,” the organizations wrote in their comment. “In reality, TNI students are some of the most vulnerable to sex discrimination and their inclusion is central—not in opposition—to the fulfillment of Title IX’s promise of gender equality in school sport.” 

As a result, the collective submitted recommendations – based on first-hand experience with the LGBTQ+ community – to the Department of Education. Founded in 2003, TLDEF is a non-profit that is dedicated to ending discrimination and achieving equality for transgender people, particularly those in vulnerable communities. Through its work, the non-profit has experience in assisting transgender people who have experienced discrimination in schools and athletics programs, including bans and regulations.

Athlete Ally has been on a mission to end homophobia and transphobia in sports since 2011. The organization works to dismantle the structural and systemic oppression that excludes, isolates and endangers LGBTQ+ people. Since 2020, the Clinic has been working to shape the future of LGBTQ+ advocacy by advancing the rights of LGBTQ+ people through cutting-edge impact litigation, legislative and policy advocacy and public education. 

Their combined experience advocating for and with the LGBTQ+ community led to the following groups recommendations seek to affirm the following: 

• Title IX’s bar on sex discrimination encompasses nonbinary and intersex discrimination, as well as transgender discrimination
• Transgender, nonbinary, and intersex students must be afforded a meaningful opportunity to participate in school athletics
• Sex testing regulations must not be adopted or applied to student-athletes
• Sex-related athletics criteria must not be adopted or applied in ways that disproportionately target or harm students of color, including transgender, nonbinary, and intersex students, as well as students who do not conform to racialized gender norms

“When laws or policies limit or deny TNI students’ ability to participate in school sports, they violate the plain text and purpose of Title IX,” said Shayna Medley, Senior Litigation Staff Attorney at the TLDEF. “TNI students already face immense barriers to equal access to education, including school sports, and are under attack by state legislatures. We urge the Department to make clear that TNI-inclusive policies are essential to – and never at odds with – Title IX’s promise of gender equity and fairness.”