Kery Murakami/Inside Higher Ed
Little noticed in October, about three weeks before the presidential election, was that the Education Department targeted Franklin Pierce University in the raging national debate over transgender athletes. The department, still under the Trump administration, said it was concerned that the small private institution in New Hampshire was violating the rights of athletes assigned female at birth by letting certain male-to-female transgender people compete against them.
The department’s civil rights office agreed to drop a civil rights probe it had opened, but only after the university agreed to no longer let transgender athletes play against cisgender women.
The department’s stance sent a clear message to other colleges and universities -- they could also come under scrutiny for civil rights violations if they allowed transgender women to compete as women.
“The significance was definitely alarming,” said Joanna Hoffman, spokeswoman for Athlete Ally, an advocacy group that promotes equality in sports regardless of sexual orientation, gender identity or gender expression. “We saw it not as a signal to the NCAA but to institutions that support transgender athletes.”
As the national debate over whether transgender athletes should be able to compete as women continues to rage, a spokeswoman for the Education Department under the Biden administration didn’t explicitly answer last week when asked if the department had changed the stance taken by the Trump administration a few months ago.
Still, legal experts and advocacy groups on both sides of the debate said they expect the department under the new administration to take a different position on allowing transgender athletes to compete.
At the least, colleges that allow transgender athletes to play against cisgender women won’t have to worry about being targeted by the department, said Neena Chaudhry, general counsel and senior adviser for education at the National Women’s Law Center.
Attention around the debate over what policies schools should adopt for transgender athletes has largely been focused on high school sports. Most notably, a lawsuit is challenging Connecticut’s policy allowing high school athletes to compete based on the gender with which they identify.
Three female high school runners said in the suit that it’s unfair for them to compete against runners who were assigned male at birth because they are physically stronger. The Education Department under then secretary Betsy DeVos sided with those challenging Connecticut’s policy.
But DeVos’s department also targeted transgender athletes in college sports. Franklin Pierce, following the NCAA’s guidelines, had allowed male-to-female transgender students to compete as women in intercollegiate sports once they reached a year after completing gender transition hormone therapy, including testosterone suppression.
But after a transgender Franklin Pierce track athlete, CeCe Tefler, won the women's 400-meter hurdles national title at the 2019 NCAA Division II Outdoor Track & Field Championships, Concerned Women for America, a conservative Christian group, filed a complaint with the department saying the university was violating the rights of women by letting Tefler compete.
Under Title IX of the Education Amendments of 1972, “no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person, or otherwise be discriminated against,” the department civil rights office’s compliance team leader, Timothy Mattson, wrote on Oct. 16 in announcing the agreement with Franklin Pierce.
Therefore, a male athlete who identifies as female should “not be treated better or worse than other male student-athletes,” Mattson wrote. “If the school offers separate-sex teams, the male student-athlete who identifies as female must play on the male team, just like any other male student-athlete.”
The department’s position, he wrote, is “that its regulations authorize single-sex teams based only on biological sex at birth -- male or female -- as opposed to a person’s gender identity.”
Concerned Women for America’s CEO and president, Penny Nance, hailed Franklin Pierce’s decision to change its policies. “Federal action against Franklin Pierce University is a warning shot to the NCAA and every college and university in America to back off policies that discriminate against female student-athletes and restore fairness and equity in women’s sports,” she said in a press release at the time.
It was unclear if the department’s position caused other universities to rethink their policies on transgender athletes. A number of universities that allow transgender athletes to compete declined comment. A Franklin Pierce spokeswoman declined comment. But it posted on its website, “Franklin Pierce University regrets that we must remove our previously published Transgender Participation and Inclusion Policy. We remain committed to an inclusive environment for all of our students while also complying with federal law. Franklin Pierce University and the Department of Athletics will continue to support all students and student-athletes.”
The NCAA also did not return requests for comment.
However, advocates for transgender athletes say Biden signaled a different stance when he signed on his first day in office, Jan. 20, an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.
The order called on the government to broadly apply the Supreme Court’s 2020 Bostock v. Clayton County ruling, which found that LGBTQ people are protected from sex discrimination in the workplace.
While other groups strongly disagree, the executive order said that in extending workplace protections to people based on sexual orientation, gender identity and gender expression, it followed that the court ruling also applied to other laws protecting against discrimination, including Title IX, affecting education.
"Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love," Biden's executive order reads. "Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports."
While the order itself does not change federal policies, it directed federal agencies, including the Education Department, to make sure its policies are aligned with it within 100 days.
The Education Department in February withdrew its support of the lawsuit challenging Connecticut’s policies.
In addition, another executive order Biden signed March 8 was seen as significant in ordering the department to revisit a rule passed by DeVos on handling allegations of sexual abuse and harassment on campus. But the Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity could also have significance for transgender athletes.
That order said the Biden administration’s policy is that “all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.”
The department under Biden hasn’t yet reversed the stance it took against Franklin Pierce. But it said in a statement Friday, “The department shares President Biden’s commitment to protecting the rights of all students and is committed to fulfilling our nation’s promise of equal educational opportunity.”
Christiana Holcomb, legal counsel at Alliance Defending Freedom, which is challenging the Connecticut law on behalf of the high school runners, also said the executive order signals the administration will change its stance on transgender athletes. “The policies that result from this order could deny female athletes fair competition in sports, ignore women’s unique health needs, and force vulnerable girls to share intimate spaces with men who identify as female. So, yes, we are concerned that this administration and the Department of Education will continue to take actions that harm women,” she said.
Erin Buzuvis, associate dean for academic affairs at the Western New England University School of Law and an expert on Title IX, also agreed that Education Secretary Miguel Cardona will take a different stance than DeVos in the Franklin Pierce case.
“If the Trump administration had stayed in power, the significance would be, ‘this is the writing on the wall for everyone else,’” she said of the department’s position in the Franklin Pierce case. “But with a new administration saying this is not our enforcement position, schools with policies like [Franklin Pierce’s] do not have much to worry about.”
Meanwhile, transgender athletes competing with cisgender women continue to be under attack
Mississippi last week become the first state in the country to adopt a ban on transgender athletes competing in women’s and girls’ sports this year. Republican governor Tate Reeves signed a bill Thursday prohibiting transgender athletes from participating in girls’ and women’s sports teams at public schools and universities.
The South Dakota State Senate last week also passed a bill that prohibits transgender women athletes from competing on high school and college girls' and women's teams.
The Tennessee Senate also recently approved a bill that would effectively ban transgender student athletes from participating in middle and high school sports under their gender identity.
At least 22 bills banning transgender students' participation in sports have been introduced this year across the U.S., according to the Human Rights Campaign.