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Biden’s New Title IX Proposal Is A Move To Whip Votes, Not Protect Trans Kids

Above photo: Angela Major/WPR.

President Biden has put forward a new proposal to adjust Title IX regulations, supposedly to prevent discrimination against transgender athletes in public schools and universities.

However, this proposal is not a real protection of trans people, but instead another move by Biden to look progressive enough to win votes without taking enough action to shake the status quo.

On April 6, the Biden administration proposed changes to Title IX regulations concerning trans youth participating in sports. The regulation change would prohibit any schools or universities that receive public funding from passing “blanket bans” — bans that prohibit all trans youth from participating in any sport at all — but would make it acceptable for schools to ban transgender students from sporting activities on a sport-by-sport basis. While Democrats are touting this as a win for transgender rights, this is simply another example of the so-called “progressive” party proposing moves to make themselves seem trans-positive, while taking no meaningful action to protect trans children.

Like so many anti-trans bill proposals, this new regulation put forward by Biden claims that their ultimate goal is to protect and prioritize the well-being of children. The U.S. Department of Education fact sheet on the proposed Title IX change states:

Participation in school athletics is an important component of education and provides valuable physical, social, academic, and mental health benefits to students. The proposed rule affirms that students benefit from the chance to join a school sports team to learn about teamwork, leadership, and physical fitness….Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination. Being on a sports team is an important part of the school experience for students of all ages.

After providing this disclaimer, the rule goes on to outline how schools can skirt around Title IX and prevent transgender students from participating in athletics. It states:

The proposed rule would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity just because of who they are. The proposed rule also recognizes that in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation.

Said differently: Schools can’t make one ban that stops trans kids from participating in all sports, but they can certainly ban trans kids from playing basketball, volleyball, soccer, football, and so on; they just have to write these as separate bans, and they have to give a reason why trans children shouldn’t be able to participate in each sport.

This move from Biden represents a larger pattern from both the President and the Democratic Party at large: make vague comments about how trans kids deserve love and respect, verbally denounce the actions of the Far-Right, and take little to no action to actually protect trans people. Since the recent uptick in anti-trans legislation began, Biden has done nothing to ensure the safety of trans children, guarantee access to gender-affirming care, or solidify protections against discrimination. In fact, in his State of the Union address, Biden mentioned trans children for 9 seconds total, and his only concrete proposal was that Congress needed to pass his proposed Equality Act, which offers only bare-minimum protections for trans people and has all but died on the Senate floor. Once again, Biden has spoken against anti-trans action just enough to make left-leaning voters happy, while not taking enough action, so as to keep centrist voters comfortable. This allegedly pro-trans sports proposal is just another example of Biden ignoring the needs of the people and playing his cards just right to secure as many votes as possible in the 2024 race for President.

The Double Standard of “Unfair Advantage”

The main reason being put forward for banning trans children’s participation in a certain sport is the idea that these children would have an advantage over cis children because of their sex assigned at birth. The regulation states:

The Department’s approach would allow schools flexibility to develop team eligibility criteria that serve important educational objectives, such as ensuring fairness in competition or preventing sports-related injury.

The implication here is that trans children would create unfairness in competition, and that schools could make eligibility criteria to stop this. While the idea that trans children create unfair competition is highly debatable at best, let us imagine that transgender students do have an unfair advantage. Accepting this advantage as a valid reason to prevent trans children from being allowed on school athletic teams creates two major problems with the inherent logic of the ruling.

First, the rule itself states that simply participating in a school sport is valuable for students and their education. The rule does not state that students need to win in order to have a positive experience. Every sporting event inherently includes winners and losers, and the vast majority of students who participate in sports in any capacity will no doubt experience their fair share of losing. Let us return to the text from the Department of Education:

Beyond all the benefits to physical and mental health, playing on a team teaches students how to work hard, get along with others, believe in themselves, and build healthy habits that last a lifetime.

Where in this text do they state that students must win to reach these “educational objectives”? They only state that playing on a team gives students these benefits. If a student never made it to the podium in a race, won very few basketball games, or lost every soccer game of the season, would they not experience any improvements in physical and mental health? Would they not learn to work hard, get along with others, believe in themselves, or build healthy habits? Certainly, it can be encouraging and moralizing to be good at a sport, but does this mean that students who aren’t exceptional aren’t benefitting? The rule proposed by the Biden administration both implies that all participation in sports has benefits for students whether they win or lose — and that students would somehow be harmed by other students having advantages or being exceptional. This contradiction highlights that this proposal is not about schools reaching “educational objectives,” but about keeping trans kids from the benefits of athletics in order to make transphobic parents and school administrators happy.

The second problem that preventing trans kids from participating based on perceived advantage creates is that even if transgender students have an advantage because of their sex assigned at birth, there are plenty of advantages students can have that give them a leg up in athletic competition, and these advantages have never been used to prevent students from participating. The only time “unfair advantage” has been used as a reason to bar children from athletics is in the case of trans children.

For instance, the average height of a full-grown cisgender woman in the United States is five feet, four inches. The average height of a cisgender women’s college volleyball player, however, is six feet. Surely, it is a significant physical advantage, then, for a cis girl to be taller than average in the sport of volleyball. Yet, there is no height limit imposed on kids wishing to participate in high school or college volleyball. Does this unfair advantage matter? Should students with longer-than-average arms be barred from playing basketball? Should students with exceptionally long legs be prevented from running hurdles? Should we prevent students who are shorter and have higher muscle mass than average from participating in school gymnastics? Physical exceptionalities have always been par for the course in school athletics — those with exceptionalities are counted lucky, and the other students are expected to play them anyway.

Furthermore, the advantages students may have don’t stop with the physical: If a student’s family has the money to pay for extra coaching, wouldn’t they have an athletic advantage over someone of equal talent whose family couldn’t afford this? If one student has to work a part-time job to make ends meet, while another student can use their free time to lift weights outside of practice, doesn’t the student without a job have an advantage over the student with a job? These advantages are not taken into consideration when creating eligibility criteria. The force that motivates schools to treat transgender students and their supposed advantages differently from other types of advantages is transphobia.

Additionally, it must be pointed out that there is no conclusive evidence that suggests that trans athletes even have a competitive advantage in athletics. In fact, research has shown that trans individuals have a harder time in athletics simply due to the pressure of navigating the harassment and discrimination they experience while participating. So, trans athletes have no competitive advantage in sports, but even if they did, advantages in other areas such as physical exceptionality, access to additional training, and higher-than-average free time to spend practicing are exceptionalities that are celebrated, not criticized or used against students. It is clear, then, that any attempt to bar trans athletes from participation in sports is simply transphobia falsely disguised as “fairness.”

“Harm Reduction” Without Reducing Harm

In order to get around the obvious transphobia woven into this Title IX change, the Biden administration has taken care to throw in a statement about making sure trans students aren’t being harmed. This is meaningless lip service, however, when the proposed rule gives plenty of space for transgender students to be prohibited from participating in activities that the rule itself defines as beneficial. The rule states:

If a recipient adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.

Let us break this down. The passage states that if a school makes a decision to limit or deny a trans student from participating on a team that is consistent with their gender identity, they have to prove two things: first, that trans students needed to be banned in order to reach an “educational objective,” and second, that the ban will “minimize harm” to the students who are being kept from participating in athletics.

This raises two questions. First, what educational objective could possibly require the banning of trans children in order to be met? The rule has already stated that the objectives of student participation in athletics are “to learn about teamwork, leadership, and physical fitness.” Cisgender students can’t learn these lessons on a team with a transgender student? The rule offers no clarification on how trans kids could stand in the way of these educational objectives. Second, how could a ban “minimize harm” to students being prevented from participating in something beneficial? Again, the rule offers no clarification. This has essentially told schools, “Sports are very beneficial to students, but it’s okay to ban trans students from participating, as long as it’s good for them.” The contradiction is obvious.

This “harm-reduction” sentiment has clearly been added to dodge any possible accusations of caring less about trans children than cis children. Telling schools that they can bar students from sports based on their gender as long as it “minimizes harm” caused to them is like telling schools that they can quit feeding children lunch so long as doing so minimizes their hunger.

The Democrats’ Agenda

While this proposed Title IX change is disgusting, it is not surprising. In the midst of unprecedented attacks on trans people, particularly trans children, Democrats have taken no meaningful action. Rather than take a firm stance in favor of protecting trans rights, Biden and the Democratic Party, alongside The New York Times and other media outlets, have chosen to make vague statements about trans people being valid while allowing anti-trans rhetoric and legislation to pass unchecked. This proposed rule is yet another example of this: Biden and the Democrats can claim that they took action to respond to anti-trans sports legislation and collect votes from left-leaning folks without actually creating any real change. With election season just around the corner, the President has a vested interest in maintaining an image of inclusivity and moral high-ground over Republicans, while also not taking enough of a stand against these anti-trans attacks to lose the votes of more so-called “gender skeptical” centrists or Democrat voters. Striking this careful balance between saying trans-positive things while taking anti-trans action is especially important for Biden in the area of athletics, as the entire country rallies around sporting events, and alienating the center or right-leaning voters by taking a stand for trans rights in sports would be detrimental to Biden’s vote count.

Time and time again, the Democratic Party has used social movements as a vehicle for their own electoral success. They suppress the most progressive elements of the movement, use the more tolerable catchphrases that emerge, and propose hollow legislation that makes them look like they’re supporting the movements of the masses, but they have no interest in the needs of the people. We saw this move from the Democrats when they knelt with their fists in the air after George Floyd’s murder, echoing the phrase “Black Lives Matter,” but then turned around and gave more money to the police and took no protective action. They made these moves to look progressive and win votes without pushing centrists into voting Republican, and they are repeating this play once again, this time using trans children as a pawn in the game.

In the fight for trans rights, from sports participation to gender affirming care, we must realize that Biden is not the “lesser evil,” and the Democrats are not our friends. Their supposed “support” for trans rights has been nothing but talk, and they rely solely on the notion that they’re not as bad as Republicans to get us to the polls every two years. How many anti-trans bills have to become law before we realize the Democrats won’t save us? How many more times will we show up and vote for a “lesser evil” that sits back while trans people are denied healthcare, protections, and the right to a trans childhood? How long until we realize that hollow proposals like this Title IX change aren’t enough? If we want to fight for trans liberation, we have to fight for ourselves. We must organize ourselves, in our workplaces, our schools, and our streets. Every protection we currently have for the queer community was won not through the Democratic Party, but through struggle. Let us not forget that Stonewall was a riot.

Every trans child deserves to live a full and happy childhood, including equal access to all resources allowed to cis children. The only way we secure these rights for our trans siblings is by banding together to fight against the capitalist parties who are only interested in protecting their own money and power.

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