It may be some time before schools have to adopt the Biden administration鈥檚 changes to Title IX, which would directly challenge 23 state laws prohibiting transgender athletes from playing sports on teams aligned with their gender identity.
The administration has been at work for more than a year on a rewrite of rules detailing how schools should follow Title IX, the federal law that bans sex discrimination at K-12 schools and colleges that receive federal funds. The changes the administration has proposed would explicitly expand Title IX鈥檚 protections so they apply to discrimination based on sexual orientation and gender identity.
But it鈥檚 unclear when schools will see final rules from the U.S. Department of Education.
After delaying the release of the finalized rule changes in May, the Education Department identified October as the new expected deadline. But as of Sept. 20, the agency hadn鈥檛 submitted the rule to the Office of Management and Budget, the agency that reviews every proposed rule before it鈥檚 finalized.
Once that鈥檚 submitted, the office has 90 days to review it, but a looming government shutdown may lengthen that timeline.
A department spokesperson said that the proposed rule changes generated a historic number of public comments and that department officials are 鈥渨orking overtime鈥� to ensure all comments are reviewed and taken into consideration.
鈥淲e are utilizing every resource at our disposal to complete this rulemaking process as soon as is practicable,鈥� the department said in a statement. 鈥淚n the meantime, we continue to enforce Title IX consistent with existing law that protects students on the basis of sex, including LGBTQI+ students.鈥�
But a delay could further complicate matters for school administrators, athletic coaches, and students, as a growing number of state laws target nonbinary and transgender students鈥� ability to play sports, use restrooms, and go by pronouns and names consistent with their gender identity.
鈥淭here鈥檚 continuing, growing resistance to LGBTQ+-inclusive Title IX interpretation,鈥� said Elana Redfield, the federal policy director at the Williams Institute, a University of California, Los Angeles, research center focused on LGBTQ+ issues. 鈥淕etting [the rule] out there is going to be really important.鈥�
What the rule would do
The Education Department released an initial proposal for a Title IX rule change in June 2022. At the time, the department sidestepped the hot-button issue of athletics and instead explicitly stating that Title IX鈥檚 anti-discrimination protections apply to discrimination on the basis of sexuality and gender identity.
Nearly a year later, in April 2023, the department released another proposed rule that would prohibit schools from banning all transgender athletes from participating in sports consistent with their gender identity. Instead, it would allow schools to prevent a transgender student from playing if doing so affected competitive fairness, safety, or any other stated objectives of the sport.
Neither proposed rule change has yet been finalized.
In the meantime, the list of states with laws banning transgender youth from playing sports has grown to 23, according to the an organization that tracks policy issues impacting LGBTQ+ people. Five of those states passed laws this year, with Missouri and North Carolina passing their laws in June, after the Biden administration released its proposed Title IX rule on transgender athletes.
鈥淎ll trans kids are affected by this. At the younger ages, across the board, most trans kids are affected, and then as you get more to the college age, fewer are affected,鈥� Redfield said, noting that a small number of transgender youth play college sports. 鈥淏ut it still creates a really uncertain environment for everybody.鈥�
The finalized rule would throw all of those laws into question and likely lead to court challenges across the country to determine the legality of bans on transgender athletes playing sports consistent with their gender identity.
The case for a continued delay
The sooner the finalized Tiltle IX changes are released, the sooner educators and students will have more certainty about where the law stands, said Sasha Pudelski, the advocacy director at AASA, The School Superintendents Association, but that doesn鈥檛 mean the transition will be easy.
The proposed rule changes will likely require staff training and communication with parents and community members. Some school boards will have to update policies and handbooks. Those changes are difficult to make in the middle of a school year, Pudelski said.
鈥淎s the implementation date moves back further and further, it builds the case for having a school district implementation take place over the summer, which would be the ideal time when you can really update handbooks and have meaningful discussions with educators,鈥� she said.
Many districts will also have to grapple with legal conundrums, in which state law conflicts with federal regulations. Until those battles play out in court鈥攐r in the unlikely scenario that Congress steps in in the near future to clarify Title IX鈥檚 protections鈥攄istricts will be in a precarious place legally.
鈥淭here鈥檚 a lot of open questions as to what implementation will look like, whether it will vary from state to state, for example, based on how litigation moves forward,鈥� Pudelski said.
Politics also plays a role in the timing, she added.
鈥淚f you look at how controversial these policies around transgender student-athletes are in some communities, I don鈥檛 know that Biden would want to be throwing that political football around,鈥� she said. 鈥淚t鈥檚 really close to the election and certainly summer is pretty close to the election.鈥�
But even without the rule changes finalized, the Biden administration鈥檚 interpretation of Title IX has been clear from the beginning, the Williams Institute鈥檚 Redfield said. So schools shouldn鈥檛 have to wait for the changes to be finalized to include transgender youth in activities, she said.
鈥淭here have already been really clear directives from the federal government about how Title IX should be understood,鈥� Redfield said. 鈥淩egardless of what we鈥檙e going to see in that final rule, I think we鈥檙e going to see that it鈥檚 consistent with the Biden administration鈥檚 messaging that trans people and LGBT kids are going to be covered.鈥�
