The Biden administration’s proposed regulation, published in April 2023, took a nuanced approach. It would outlaw blanket state bans but gives schools a road map for how they can bar transgender girls from competing in certain circumstances, particularly in competitive sports.
Nonetheless, issuing such a rule risks injecting the issue into an election year in which President Biden faces a close contest with former president Donald Trump, who has promised to ban trans women from women’s sports if reelected.
“Folks close to Biden have made the political decision to not move on the athletics [regulation] pre-election,” said one person familiar with the administration’s thinking. “It seems to be too much of a hot topic.”
A second person reported having received the same message from the administration. Both spoke on the condition of anonymity to discuss private conversations.
Administration officials did not dispute that the sports rule would be put off but declined to comment on specific timing or any possible political motivations.
A senior Education Department official, who spoke on the condition of anonymity to reflect internal thinking, noted that the main sex discrimination regulation was issued nine months before the sports proposal and is now in the final stage of review at the White House Office of Management and Budget. He said the department “is still reviewing” the sports regulation and emphasized that it received a crush of 150,000 public comments, “which by law must be carefully considered.”
“The Biden-Harris Administration is committed to ensuring all students are guaranteed an educational environment free from discrimination on the basis of sex,” the department official said.
The sports regulation is part of a wide-ranging rulemaking underway on schools’ obligations under Title IX, which bans discrimination on the basis of sex in colleges, universities and K-12 schools that receive federal funding. The main, far more sweeping rule, expected soon, will cover other issues governed by Title IX, including schools’ obligations to investigate allegations of sexual harassment and assault.
That main Title IX regulation, proposed in June 2022, also says that the law’s prohibition on sex discrimination includes discrimination based on gender identity as well as sexual orientation. The administration has already said this is how it interprets Title IX, but this is the first time that would be codified into a regulation, which would give it additional force.
As proposed, it would compel schools to let transgender students use bathrooms that align with their gender identity, ban bullying based on their gender identity and ensure students are addressed by the pronouns they use. Schools that fail to follow these rules would be subject to investigations and risk losing federal funding.
But in 2022, with midterm elections looming, the administration cleaved the question of sports from the main regulation and promised to address that in a separate proposal. Last May, the Education Department said both would be released in October — a deadline that came and went without action.
In February, the main Title IX…
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