With the spate of legislation aimed at denying trans people--including trans children--fundamental rights, it would seem like this month's announcement from the White House about proposed regulations (under Title IX) to prevent schools from outright bans on trans youth participation in sports would be a good thing.
The headlines might have inspired some hope* especially in weeks like this one where the House has passed a bill that bans transwomen from sports competitions by amending Title IX to state that sex can only be defined by sex assigned at birth (which, of course, will trigger a myriad of other bad things for cis and trans people and persons with Differences of Sexual Development).
While that bill will not pass the Senate, other bills are passing state legislatures; seemingly with ease. But after reading the actual proposal and fact sheet (linked above), there is not much reason for celebration, however.
One, we have to remember these are proposed changes to how the law is interpreted. We now enter a comment period where people and entities can, well, comment on the proposed rules. This is, I suppose, part of the democratic process (though how much so is questionable given that former Sec of Ed Betsy DeVos also made changes that from all that I could see were largely unpopular and those got pushed through anyway).
But good golly, I would not want to be the one reading these! I imagine they will only be slightly more professional versions of internet crap from the likes of Save Women's Sports and the Alliance Defending Freedom. [Or maybe I am overestimating the professionalism of transphobic persons and entities. ]
Regardless, these changes are not going to be protective of trans people. The big takeaway is this: institutions to which Title IX applies will not be allowed to pass blanket policies that ban trans students from sports participation. Instead the Department of Education will "allow schools flexibility to develop team eligibility criteria that serve important educational objectives, such as ensuring farness in competition or preventing sports-related injury." I will come back to this and some of the other language.
I am going to start with a problem I feel has been almost entirely overlooked in this and most other conversations about policies regarding trans participation in sports^: they do nothing to address privacy. Because so much of these regulations depend on how this flexibility will be interpreted and implemented --standards of fairness and advantage being highly subjective in the sport world--privacy has arguably become less of a concern, less of a right that trans people--including children can have if they want to play sports. If these regulations get passed the early "cases" (children should not be cases by the way) will be brutal. Adults will engage in horrible behavior and say brutally damaging things about children. (Just look at how Lia Thomas and other adult trans athletes have been treated.)
I do not have faith that we who live in a white, western, heteropatriarchal society, of which binary sports are a result and an enforcer, will have the ability, the knowledge, the self-reflection, the ethical drive to determine what fair is.
This is not helped by the language in the Department of Education's fact sheet and proposed changes to the regulations.
Starting with the above about educational objectives as related to fairness of competition and sports-related injury...One, fairness in competition, despite what many people believe about the rules of sports, is highly subjective. We, as a sport-obsessed culture, do not actually discuss and define fairness much beyond complaining about how referees call games or when the coach plays their own child. There is no complexity to the fairness discourse. Related to these regulations and their flexibility, I do not see how anything other than the usual boys are stronger than girls biological fairness discourse will be used by those wishing to erase/punish/condemn transgender children and young adults.
The "safety" that that Biden administration has invoked reinforces the "fairness" but is also entirely hypocritical!!! If it was/should be an educational objective for sports to be safe for participants, there would be far fewer sports. This is not a gender issue. Men who play football are quite dangerous to one another's health. (Also states with equal opportunity laws require that women/girls be at least allowed to try out for football and we seem to have gotten over the whole safety thing here.) Women's gymnastics has a high rate of catastrophic injury. Safety does not seem to be anyone's educational objective when the sport is a money-maker.
Overall the language in these regulations is vague. There are a lot of "expects" when it comes to what may be perceived as guidelines such as that the Department "expects...elementary school students would generally be able to participate on school sports teams consistent with their gender identity." This makes it unclear what happens when a school goes against this expectation and how these expectations will be enforced.
Basically what they are saying is that they see there are differences based on age/grade. But there are SO MANY OTHER THINGS that make one student athlete different from one another within sex-assigned at birth categories: height, weight, previous access/exposure to sport including privatized sports, historic and current nutrition access, socioeconomic class, among others. No regulation has ever attempted to govern or control for these differences in single-sex sports.
Another problematic aspect of the proposed regulations: they are conveying the idea that at "lesser" competitive levels, trans participation is fine but that more competitive levels or teams seemingly have the "flexibility" to exclude. So any trans person who wants to be "competitive" will be out of luck. There is no clarity about how competitive a team or school has to prove they are in order to ban trans people.
There are more issues that are vague in regard to how these regulations will and will not work alongside existing stances by state interscholastic associations and the NCAA which has deferred (a kind way to phrase this) to sport governing bodies most of which do not have "educational objectives" at the core of their missions.
It is sadly ironic that toward the end of the fact sheet it is stated that "preventing students from participating on a sports team consistent with their gender identity can stigmatize and isolate them." These regulations do almost nothing to impede or resolve that isolation or stigmatization.
* I had linked to the NYT's article about the proposed changes but in protest of that outlet's coverage of the "controversy" over the care and well-being of trans youth, I removed it. Thus far it is a minimal attempt to divest myself of the Times, but I am trying to pay better attention going forward to citation politics.
^ I am looking forward to reading this ahead-of-print article from the Sport Sociology Journal to see how this issue might be addressed.
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