President Joe Biden’s administration on Thursday said it will propose a rule to ensure transgender students can participate in school sports. The proposed rule comes a day after lawmakers in Kansas overrode Democratic Gov. Laura Kelly’s veto to block transgender students from participating in girls and women’s sports.
The Department of Education’s proposed rule would say that laws like the one passed in Kansas violate federal Title IX laws, which prevent discrimination on the basis or sex, while also allowing some schools to adopt policies that limit transgender participation in sports at the competitive high school and collegiate levels.
“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination,” said U.S. Secretary of Education Miguel Cardona. “Being on a sports team is an important part of the school experience for students of all ages.”
Across the country, there has been a push to prevent transgender women from participating in school sports as part of an ongoing effort by conservatives to restrict transgender rights. The law is on the books in 20 states, and pending in more.
The Department of Education’s rule would allow schools to establish policies to determine whether a student is eligible to play, based on the sport, level of competition and grade level. The department said that flat-out bans, like the one in Kansas, would not be acceptable under Title IX.
“Such bans fail to account for differences among students across grade and education levels,” the department wrote. “They also fail to account for different levels of competition — including no-cut teams that let all students participate — and different types of sports.”
The Department of Education said its goal was to minimize harm for transgender students who could be denied the ability to play a sport based on their gender identity. Already, there is a small group of people targeted by these laws — in Kansas, there are only three students in Kindergarten through high school who would be affected. It’s unclear how many transgender athletes there are at the collegiate level.
While the new rule will not be issued immediately — there is a 30 day public comment period — it will likely be challenged in court. In 2021, a group of 20 state attorneys general filed suit against the administration to prevent it from extending federal protections to LGBTQ people.
However, the rule could also provide support for groups challenging state bans, including any potential challenges in Kansas. Kansas Attorney General Kris Kobach, a Republican, has said he will defend the law in court. The law is set to take effect in July.
“As the father of five daughters who are involved in sports, I care deeply about the fairness in girls’ sports,” Kobach said in a press release Wednesday. “If any group challenges this law in court, I will defend it vigorously. And I am confident that the law will survive any challenge.”
The Kansas Legislature has tried for three years to ban transgender athletes from participating in sports leagues that match their gender identity. This year, amid a larger, nationwide push by conservatives against transgender rights, proponents of the ban were able to secure enough votes to override Kelly’s veto.
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