Republican governors request withdrawal of Title IX transgender sports proposal

WASHINGTON — Republican governors across the Deep South are among 25 governors who signed on to a letter urging U.S. Secretary of Education Miguel A. Cardona to withdraw a proposed Title IX update while state lawsuits are pending.

Ga. Gov. Brian Kemp, Ala. Gov. Kay Ivey, Texas Gov. Greg Abbott and Miss. Gov. Tate Reeves have signed laws restricting students from participating on sports teams that align with their gender identity, which the proposed Title IX update would challenge. Lawsuits have been filed by groups challenging the laws in the majority of those states.

Title IX has been in place for more than 50 years and bans sex discrimination in athletics in any educational institution — K-12 schools and colleges and universities — or programs that receive federal funding.

The proposed update would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity. Noncompliance of the regulations would result in removing federal funding from the education entity.

However, the 25 Republican governors argue that the U.S. Department of Education does not have the authority to unilaterally rewrite or enact such a change or create a new category for “gender identity.”

“Gender identity is not mentioned anywhere in Title IX,” the letter states. “Federal courts have held that to interpret ‘sex’ within the meaning of Title IX ...look to the ordinary meaning of the word when it was enacted in 1972.’ …Indeed the Supreme Court recognized that biological sex is an ‘immutable characteristic’ determined at birth.”

The governors said the update would generate confusion, referencing an American Academy of Pediatrics report that stated, “gender identity can [be] fluid, shifting in different contexts.”

“…The Department’s proposed regulation would attempt to coerce compliance with an uncertain, fluid, and completely subjective standard that is based on a highly-politicized gender ideology,” the letter states. “Compelling a subjective, athlete-by-athlete analysis controlled by a student’s self-identified ‘gender identity’ enforced under threat of Department retribution affords no clarity. It does the opposite.”

The governors argue that such a regulation would allow males to “steal achievements” from females in sports by allowing biological boys who identify as female (transgender girls) to compete on girls’ sports teams.

The proposed rule would take away “fairness” in women sports, the letter states, further arguing that courts and "common sense” have recognized that the average physiological difference in males would displace females if competing against each other.

The U.S. Department of Education states that participation in school athletics is an important component of education and “provides valuable physical, social, academic and mental health benefits to students.”

According to the proposal, in some instances, such as in competitive high school and college athletic environments, some schools would be able to adopt policies that limit transgender students' participation.

Under the proposed regulation, elementary school students would generally be able to participate on school sports teams consistent with their gender identity.

Schools would have the flexibility to develop team eligibility criteria, such as ensuring fairness in competition or preventing sports-related injury. The criteria would have to account for the sport, level of competition and grade or education level.

Schools seeking to restrict students from participating consistent with their gender identity must take into account the nature of the sports to which the restriction would apply, as sports vary in the skills, and the talent they require. The proposal notes that schools also offer teams at lower levels of competition, such as intramural or junior varsity teams, that allow all or most interested students to participate.

The Department's proposed Title IX regulation will be open for public comment for 30 days from the date of publication in the Federal Register at www.federalregister.gov.