Hot Topic: Biden Administration Backs Away from Trans Athlete Rules in an Election Year

Just over a year ago the Biden administration announced it was proposing new regulations for trans athletes at public schools and colleges. At the time, the proposal was seen by many on the left as a compromise position.

The rules would narrow when discrimination of trans athletes would be permitted. But they also would offer guidelines for when schools could bar their participation.

Under the proposal, schools would need to consider a range of factors before imposing a ban on trans athletes and would need to justify it based on educational grounds, such as the need for fairness. So, for instance, a school district could justify a ban on transgender athletes on their competitive high school track and field team, whereas a district would have a harder time making that case for an intramural middle school kickball squad…

“The proposed rule helps clarify that these blanket bans on transgender athletes are in violation of Title IX and is a really positive development,” said Scott Skinner-Thompson, a supporter of transgender rights and associate professor at the University of Colorado Law School. But he said the provisions allowing for discrimination were “deeply troubling.”

“When it comes to the hard cases, this is saying that trans kids can be discriminated against,” he said.

Conservatives objected because, at that point, about 20 red states had already passed legislation prohibiting trans athletes from competing in women’s sports. Progressives objected because the ability to disallow trans athletes under any circumstances falls short of their “trans women are women” mantra.

But a funny thing happened on the way to finalizing those regulations. Today the Washington Post reports the Biden administration is holding off on the new regs because they don’t want to make this an issue in an election year.

Athletics is among the thorniest issues confronting supporters of transgender rights, including those in the Biden administration. Polling shows that clear majorities of Americans, including a sizable slice of Democrats, oppose allowing transgender athletes to compete on girls’ and women’s teams. Twenty-five states have statewide bans on their participation, with proponents arguing that trans women have a biological advantage over other participants…

…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.”

Of course the administration isn’t really backing down, it’s just hiding the ball from voters in an election year. It still plans to move forward with another regulation which would give trans students access to the bathroom of their choice and require employees to use the pronouns of their choice or lose federal funding. 

One consevative group, the Defense of Freedom Institute, has already suggested that passage of the this rule would still result in a requirement that trans athletes be allowed to compete with girls and women simply because “the new rules redefine sex discrimination to include gender identity.”

The new regulations also eliminate basic protections put in place by the Trump administration for anyone accused of sexual harassment. Under the current rules, colleges have to hold a hearing akin to a trial and allow the accused to face and question his accuser (usually through a representative). These rules will now be rolled back: “Under the proposed Biden version, neither court-like hearings nor cross-examinations would be required.” Instead, we’ll return to what is known as the single investigator model and the lowest possible standard of proof (“more likely than not”) which will result in people being expelled from school often with no chance to see or contradict the claims made against them.

Colleges are simply not equipped to adjudicate assault allegations and certainly shouldn’t be doing so without basic protections for the accused. Under the Biden administration, we’ll be returning to a guilty until proven innocent scheme and the result will be a lot more lawsuits.