AG James Leads Multistate Coalition For Protections For Transgender Athletes

May 16, 2023

New York Attorney General Letitia James and New Jersey Attorney General Matthew Platkin co-led a coalition of 12 attorneys general.

The attorney general’s in submitting comments in support of robust anti-discrimination protections for transgender students. The comments were submitted in response to a rule proposed by the U.S. Department of Education (USDOE) that would clarify how schools receiving federal funding can remain in compliance with Title IX, a federal civil rights statute, when determining a transgender student’s eligibility to participate on school athletic teams.

“Activist state legislatures across our nation are passing hateful bans that discriminate against transgender students, and these attacks on their most basic rights will not be tolerated,” said Attorney General James. “When we prioritize policies that uplift equity and inclusion, everybody wins. Transgender students deserve to enjoy and participate in the same opportunities as their peers, and I will always fight to defend every individual’s right to live a full life as their authentic self.”

In a letter sent to U.S. Secretary of Education Miguel Cardona, Attorney General James and her colleagues expressed support for aspects of the proposed national rule that would prohibit institutions that receive federal funding from excluding transgender students from school sports. The letter also recommends revisions to the rule that would guarantee the inclusion of all transgender students in school sports until they reach the level of elite college athletics, and even at the elite level, provide rights and due process protections to transgender athletes. In the letter, the attorneys general urge the Biden Administration to require, at a minimum, that schools receiving federal funding permit transgender students to participate in athletics consistent with their gender identity at the elementary, middle, and high school levels and college intramurals, and to provide minimum nondiscrimination protections at all levels.

The letter also urges the Biden Administration to make clear that the Administration’s rules under Title IX do not prohibit states from establishing broader protections for transgender athletes under their own state anti-discrimination laws.

Title IX prohibits discrimination on the basis of sex in federally funded education programs or activities. Significant recent legal developments related to the interpretation of Title IX underscore the need for USDOE to clarify that Title IX’s broad prohibition against differential treatment on the basis of sex includes discrimination based on gender identity. Federal appeals courts have recognized that Title IX’s bar against sex discrimination prohibits discrimination against transgender students.

As the letter explains, there are an estimated 300,000 transgender youth between the ages of thirteen and seventeen in the United States. The letter makes clear that discrimination and exclusion on the basis of one’s gender causes real and tangible educational, economic, emotional, and health harms — harms that are particularly grave for transgender young people, who already face heightened rates of depression, substance use disorders, and suicide.

The letter also explains that equal access to athletics can play a critical role in education and offer many educational benefits. Athletic participation has been linked to academic achievement and improved academic performance. As the attorneys general write in the letter, transgender students who participate in sports experience similar outcomes to their cisgender peers. The signatory states recognize that these benefits enhance students’ well-being and facilitate their ability to learn.

In the letter, the attorneys general put forth additional recommendations to better effectuate Title IX’s broad protections against discrimination, including:

  • Prohibiting schools from relying on alleged fairness or safety concerns to disallow transgender students from participating consistent with their gender identity, at a minimum, at the elementary school, middle school, high school, and intramural college sports levels;
  • Requiring schools to rely on student self-identification to determine whether a student is transgender, and eliminating requirements such as blood testing, physical examinations, medical documentation or medication interventions, or reliance on government-issued identification documents, for transgender youth to participate fully in sports; and
  • Specifying that the federal rule allows for more protective state policies.

Joining Attorney General James in filing the comment letter are the attorneys general of New Jersey, California, Hawai’i, Illinois, Maine, Massachusetts, Minnesota, Oregon, Rhode Island, Vermont, and Washington.

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