The changes aim to clarify that sex-based criteria for determining athletic eligibility must be substantially related to important educational objectives, with the goal to minimize harm to students whose opportunity to compete on a team aligned with their gender identity would otherwise be limited or denied.
A UN expert has cautioned that proposed rule changes to Title IX could violate the rights to equality and non-discrimination of student-athletes who are biological women and girls, arguing that such changes would run counter to the United States’ obligations under international human rights law.
The US Department of Education proposed changes to its Title IX Regulations on Students’ Eligibility for Athletic Teams on April 6.
The changes aim to clarify that sex-based criteria for determining athletic eligibility must be substantially related to important educational objectives, with the goal to minimize harm to students whose opportunity to compete on a team aligned with their gender identity would otherwise be limited or denied.
In 1972, the US Congress passed Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681(a)), landmark legislation aimed at eradicating sex discrimination against women in education. Its purpose was to ensure that girls could enjoy the same educational opportunities as their male counterparts.
Reem Alsalem, UN Special Rapporteur on violence against women and girls, expressed concern about the proposed Title IX rule changes, stating that they could have detrimental effects on the participation of biological women and girls in sports. She emphasized the potential impact on their opportunity to compete fairly, leading to the loss of athletic and scholarship opportunities.
The proposed change to Title IX would result in the elimination of separate intimate spaces, including shower facilities and locker rooms, for males and females.
“More importantly, it would lead to the loss of privacy, an increased risk of physical injury, heightened exposure to sexual harassment and voyeurism, as well as a more frequent and accumulated psychological distress due to the loss of privacy and fair and equal sporting and academic opportunities,” said Alsalem.
The expert added that if the proposed changes are adopted, they would violate the United States’ international human rights obligations and commitments related to preventing all forms of violence and discrimination against women and girls based on sex.
Alsalem said that abandoning the proposed changes would not hinder any individuals, including transgender women and girls, from exercising their right to participate in sports.
Applying non-invasive methods to confirm the sex of students and establishing open categories would preserve fairness in sports for female athletes while expanding opportunities for participation for all, regardless of gender identity, in alignment with actions taken by various sports associations, according to Alsalem.
She highlighted that, with rare exceptions, sports have been globally separated into male and female categories due to male performance advantages throughout the life cycle. The expert has communicated these concerns to the Government of the United States of America.
The Biden administration’s education department policy on transgender students’ sports eligibility is facing mixed reviews.
The proposed rule, which would allow transgender girls to play on girls teams with some limitations, has received over 100,000 comments.
The proposal would make it illegal to categorically ban transgender athletes from competitive sports while recognizing the importance of maintaining fair competition and preventing injuries, particularly in contact sports.
Advocates for transgender students argue that the new rule does not sufficiently promote inclusion while opponents contend it undermines fairness in women’s sports. Schools are seeking additional guidance on implementation of the policy as there are numerous issues to consider.
