The Biden Administration: A Shift for Transgender Students and Title IX

The Biden administration is seeking to undo many of the discriminatory, anti-trans policies of the Trump administration. Photo by Elvert Barnes.

With the victory of President Joseph R. Biden in the 2020 election, our country has seen a new ray of hope in what has been a bleak four years for the rights of the LGBTQ+ community, specifically the rights of transgender individuals. Under the Trump Administration, transgender individuals were banned from serving in the military, the Department of Health and Human Services attempted to reduce the protections against discriminating doctors, and the Department of Education rescinded the Obama-era rule allowing transgender students to use the bathroom that corresponds with their identity. 

President Biden is trying to shift the tide, beginning with his reversal of the controversial military ban, and perhaps even more notably, with his new executive order. The order asserts that “[a]ll persons should receive equal treatment under the law without regard to their gender identity or sexual orientation,” including that “[c]hildren should be able to learn without worrying about whether they will be denied access to the restroom, locker room, or school sports.” 

Biden’s executive order is based on Title VII of the Civil Rights Act of 1964, which formally made unlawful discrimination in public places on the basis of sex, religion, race, ethnicity, or national origin. Biden’s executive order recalls the 2020 Bostock v. Clayton County Supreme court decision, which ruled that Title VII’s definition of “on the basis of sex,” extends to sexual orientation and gender identity, as opposed to just the sex assigned at birth. Biden’s executive order builds on the foundation of Bostock, by also counting gender identity and sexual orientation among Title IX protections, which forbid discrimination on the basis of sex in education programs or activities that receive federal funding. This interpretation of the phrase “on the basis of sex” is a direct contrast to the previous administration, which did not believe the phrase in Title IX included sexual orientation and gender identity. While the immediacy of actions towards improving the experiences of transgender students in schools is unclear, a door has definitely been opened for a more inquisitive review of how educational institutions treat their LGBTQ+ students. 

A possible effect of Biden’s executive order will be schools and states reviewing their current policies on sexual orientation and gender identity inclusivity. However, it is not likely that all schools across the nation will be so compliant. Because the executive order lacks specific steps for how to implement new policies and adjust old ones, more conservative states, parents, and students have room to work around, or just outright ignore the order. For example, the Protect Women’s Sports Act, a hypocritically labeled bill, seeks to prevent students assigned male at birth from participating on girls’ sports teams. Despite the knowledge that schools could lose federal funding by failing to acknowledge trans identities, many anti-trans organizations and state legislatures plan to continue their discriminatory policies, and fight against any loss of funding. 

This isn’t the only example of transphobia, either: South Dakota’s House of Representatives recently approved a bill that would prevent transgender girls from competing with cisgender girls in high school and college sports. This requires sport divisions to be based purely on biological sex, as opposed to gender identity, and minimizes the importance of protecting all identities. States legislatures including that of  North Dakota, Montana, Mississippi, and Utah, are also advancing similar bills. States and organizations that align with arguments against transgender indiviuals in sports go as far as to refer to Biden’s executive order as “the end of women’s sports," a harmful phrase that fails to recognize that transgender women are women.

Arguments about “protecting biological sex”—i.e. preventing trans women and girls from playing on girl’s teams—are based on ideas about gender essentialism; that there is something intrinsic about being a man or woman that comes with physical make-up. Essentialism is an outdated concept that is incredibly damaging to trans identities. These misguided and non-scientific ideas affect how the transgender community is perceived, allowing room for arguments mistakenly claiming unfairness in a sports competition between transgender and cisgender students. Essentialist arguments suggest that someone labeled female at birth, for example, would be at a disadvantage when playing their sport. 

However, there are frequently biological differences between athletes in general, regardless of whether they are transgender or cisgender. A cisgender sutdent with an extreme difference, such as a heart condition that allows them to breathe easier or faster during running, or extra height that allows them to reach a basketball hoop or stretch their legs, would never be stopped from competing. This common argument about biological fairness lacks scientific basis. Additionally, for youth in K-12 sports, the aim of participation is rarely to become a professional athlete, but rather to socialize, learn about teamwork, and achieve personal growth: all children deserve the chance to make friends and work hard at something they love. 

The truth is, these arguments about “fairness” happen because many do not recognize transgender individuals as the gender they are. Banning transgender youths from competing does not eliminate natural biological differences that can occur regardless of whether someone is cisgender or transgender, but it does set the trans community apart in a way that is both illogical and damaging to their social development and mental health. The Trevor Project outlines this when they took a stance against the South Dakota bill, urging a rejection of the bill due to its potentially damaging effect on the mental health and well-being of transgender individuals, who deserve more affirming and safe spaces, not less. Forcing a transgender student to compete on a sports team that differs from their gender identity places them in a horrible, Catch-22 situation, where they either submit to experiencing dysphoria on a team they do not feel like belong on, or miss the chance to play on a team at all, like any youth deserves. 

Schuyler Bailar, a transgender athlete who swimsfor Harvard University, addressed how difficult it is to be a trans student interested in playing sports, stating, “your identity does not ever have to rob you of your own passions.” Students should be welcomed in schools, to seek out passions, make friends, and play the sport they wish to, regardless of their identity. 

While Biden’s executive order is a significant shift from the former Trump Administration’s stance, transphobic rhetoric such as the “fairness” argument still persists giving others a platform to attack the trans community. Clearly, the battle is far from won, as states have the option to continue to neglect Biden’s executive order, raising the question of how far the Biden Administration is willing to intervene on a state level regarding this issue. 

President Biden’s executive order is a step in the right direction and creates the potential for an even more significant change: the eventual elimination of the confines of the gender binary placed on high school sports entirely. With the understanding that Title VII and IX go beyond biological sex, sports teams that adhere to the gender binary are too limited. Teams separated by girls/boys suggest that there are either only two genders, or that there are only two genders that matter, both of which are incorrect and refuse to acknowledge other identities.

Even if transgender men and women are allowed to compete on a team that aligns with their identity, the rights of nonbinary and gender non-conforming students are still being violated. Currently, it is common to separate many sports by gender once children reach teenage years. This leaves non-binary or gender non-conforming individuals, feeling as though they have to choose between the male or female team, neither of which might fit their identity.

However, popular sports such as ultimate frisbee, roller derby, or horseback racing, amongst others, are not always separated by gender. The existence of these organizations suggests that mixed gender teams do not hurt the experiences of the teens in sports — they compete while still building teamwork, spirit, and socialization abilities — something that all children deserve the chance to experience. 

Eliminating gender divides would amend team divisions that ignore other identities outside of men and women, so that any individual's identity is properly recognized. Additionally, if necessary, teams can be categorized by groups based on skill (A/B, varsity, and junior varsity, or different heats) the way sports teams like track, soccer, or basketball already do. Sports teams already have ample ways in order to take “fairness” into account. While the playing field can never be perfect, there are other ways to create a more equalized space without discriminating against transgender individuals. Removing the labels of male and female would allow sports to be entirely skill-based, negate gender essentialism, and include non-binary and gender non-conforming youth in a way that is both safe and inclusive. Identities beyond male and female are, becoming socially and widely recognized, and President Biden’s executive order reiterating the real meaning behind “on the basis of sex” confirms this. Now, it is time for schools to allow all students to participate in sports regardless of their gender identity. 

Unfortunately, the common questions about fairness and biology persist, because society has not completely overcome the importance of gender identity over arbitrary biological sex. However, this first step by the Biden administration, while admittedly vague, offers hope for a significantly less divided high school sports experience in the future. There is a long way to go in terms of LGBTQ+ identities, but this is a first step in, hopefully, a series to come, so that there is a future ahead of us that recognizes all genders and identities, so that at long last, we can truly say that discrimination “on the basis of sex” in schools has been eliminated.  

Sarah Doyle is a staff writer for CPR and a second-year Barnard student, studying English and History with intent to attend law school.