Biden boosts Title IX protections, but excludes trans athletes

Joe Biden
President Joe Biden speaks in the South Court Auditorium on the White House campus on June 17, 2022, in Washington.
AP Photo/Evan Vucci

President Joe Biden celebrated 50 years of Title IX at the White House in June and unveiled a proposed rule aiming to bolster Title IX protections gutted under the Trump administration, but the proposal notably sidestepped protections for trans athletes.

Lesbian athletes and their supporters joined the president and First Lady Jill Biden at the White House in the ceremony to look back on the landmark law that was first implemented in 1972. Five decades ago, Congressmember Patsy Takemoto Mink, the first woman of color elected to Congress, drafted the bill and campaigned for its passage. President Richard Nixon signed it into law.

The law bars discrimination based on sex in any federally funded educational program or activity. Violators risk losing federal aid.

“It transformed our nation,” Biden said in a statement as he marked the anniversary with a celebration at the White House on June 23. Biden’s proposal aims to improve Title IX with protections for sexual identity, gender identity, and sex characteristics, but said the Department of Education “will engage in a separate rulemaking to address Title IX’s application to athletics.”

The proposal, according to the administration, is based upon the US Supreme Court’s 2020 ruling in Bostock v. Clayton County; 2021 presidential executive orders 14021 and 13988; and the US Department of Education’s Notice of Interpretation directed to the Office for Civil Rights. It bars discrimination on the basis of sexual orientation or gender identity

The proposal coincides with a recent report published by the Women’s Sports Foundation called “50 Years of Title IX: We’re Not Done Yet.” The research, published May 4, found 77.6 percent of LGBTQ students avoided school functions, 71.8 percent avoided extracurricular activities, and 25.15 percent avoided school athletic fields or facilities because they felt unsafe or uncomfortable.

Five decades after Title IX, the report discovered a wide gap persisting between men and women athletes. The gap widens further for athletes of color, LGBTQ folks, and disabled people.

The Williams Institute research found that one in three four-year college and university LGBTQ students who are 18 to 40 years old said they had been harassed, bullied, or assaulted, compared with one out of five non-LGBTQ students. Levels of sexual harassment for LGBTQ students were more than four times as high, and sexual assaults more than five times.

Transgender students reported that in addition to bullying and assaults, over half had poor mental health while in school, and three times as many transgender students as cisgender LGBQ students said that a lifetime of adverse treatment at school had impacted their academic success or educational attainment, the institute reported.

“Colleges and universities still have a way to go as far as improving the climate for LGBTQ students,” Kerith Conron, research director of the institute at the UCLA School of Law, said. “That is what makes this expansion of Title IX protections so crucial.”

Conron hopes the institute’s research which focuses on gender and sexual orientation issues in law and public policy will help create policies for safer schools for all students.

Legendary out lesbian tennis star Billie Jean King and Darren Walker, president of the Ford Foundation, wrote that “sports can be a powerful lifeline” for transgender athletes in an op-ed in Sports Illustrated. They cited “lower rates of depression, and transgender students in states with inclusive athletic policies are 14 percent less likely to consider suicide.”

The president’s proposal addresses gaps in sports and other government programs for women of color, LGBTQ people, and people with disabilities in line with the foundation’s report and the institute’s findings.

Celebrate, keep fighting

King, a Title IX advocate who founded the foundation in 1974, celebrated at the White House along with many other women athletes and leaders. She recognized how Title IX paved the way for accomplishments by women and girl, but said “we cannot rest on it.”

“The mere existence of Title IX does not ensure equal opportunities unless it is enforced for everyone, particularly among girls and women of color, those with disabilities, and the LGBTQ+ community — where the gap is consistently the widest,” she continued.

The foundation’s report called for action for the inclusion of women of color, LGBTQ, and disabled women athletes in sports and other government programs in Title IX’s next 50 years.

Biden agreed, citing the progress, but acknowledged that Title IX’s promise has not been achieved.

“There’s more work to do,” Biden said.

Is Title IX really for all women?

The proposed rule’s exclusion of trans athletes comes at a time when trans and non-binary athletes are under attack. NCAA swimming champion Lia Thomas has been the focal point of the revived issues that started in 1976 between tennis stars Chris Evert and transgender Renee Richards.

FINA, the swimming world’s governing body, prohibited transgender women from competing in the international competition in June. The policy effectively halted Thomas’s Olympic dreams.

Thomas told ABC’s “Nightline” that she believes “trans women very much can compete.”

“It’s not a threat to women’s sports,” she said.

The International Olympic Committee also released its revised transgender inclusion policy this year. The policy came out after the most out transgender athletes competed in Tokyo’s Summer Olympics in 2021.

Since 2020, 18 states banned transgender students from playing sports in school, according to NBC News reported 37 states proposed laws banning or restricting transgender athletes from participating in high school and even college sports in in 2021.

King, 78, and out lesbian soccer star Megan Rapinoe, 36, came out in support of transgender athletes in 2020.

Throughout the last half-century, King has been an avid advocate for women’s and LGBTQ rights and sports founding the Women’s Tennis Association, the Women’s Sports Foundation, and the Billie Jean King Leadership Initiative.

Media outed King three months after fellow tennis star Martina Navratilova, 65, was outed in 1981.

Navratilova, meanwhile, has publicly spoken out against transgender women athletes competing against cisgender women since 2019, and out trans former Olympian Caitlyn Jenner has also expressed opposition to trans inclusion in sports.

The foundation stands with King’s efforts to include Title IX support for transgender women athletes to achieve true equality for Title IX’s next 50 years.

The foundation formed the new Title IX Anniversary Coalition, which calls upon Congress to bolster Title IX’s legal protections and pledge enforcement to fight until the full promise of Title IX is real.

More than 70 organizations, including the Human Rights Campaign, joined the campaign.

The proposal is open for public comment on the Biden administration’s changes to Title IX for 60 days. The education department will finalize the changes after the comment period closes. Finalization could take months.