Biden Administration New Regulation on Trans Athletes Which Can't Be

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Earlier today, Ed wrote about the Biden administration’s decision to pull back on student loan forgiveness. But that’s not the only thing getting the axe. Biden’s Department of Education is also cutting off planned regulations regarding trans athletes.

The regulations were, at one time, among the administration’s top education policy priorities, and the decision to pull down the proposed regulations was a tacit acknowledgment that they would go nowhere under the administration of incoming President-elect Donald J. Trump…

The proposed rule around transgender athletes was nuanced. It would have created some protections, prohibiting outright bans. But it also would have allowed schools to exclude some categories of students from playing sports on teams that matched their gender identities.

While the Biden administration had been hesitant to take a firm stance on the divisive question of transgender athletes, the proposal was meant to provide schools grappling with the question with some clarity.

Specifically, the proposed rule aimed to make “categorically” banning transgender athletes a violation of Title IX of the Civil Rights Act, while encouraging schools to “minimize harms to students” whose participation might be limited or denied based on their gender identity.

So these regulations would have ruled out the possibility of drawing a clear line on this issue, i.e. trans girls can’t compete against actual girls. Instead schools would have had to make individual decisions for each sport? Each athlete? If the trans athlete made the competition unfair or dangerous, they could be blocked from participating.

This was never really going to work. In fact, I’m not sure it was ever intended to work. What would have happened is that various well-funded advocacy groups would have threatened to sue anytime a trans athlete was denied the “right” to compete. Pretty soon word would spread and schools would learn it was too risky to make a decision about fairness or risk of injury that was at odds with the lawyers at the Human Rights Campaign.

In other words, the outcome would have been a scenario in which schools have the apparent right to restrict trans athletes from competition but in which nearly everyone was afraid to do so. Biden could claim this was a moderate position knowing the activists to his left would turn it into a far-left policy in practice. Again, I suspect it was designed that way on purpose.

Even now, the decision to pull the regulations back is an attempt to force the incoming Trump administration to start from scratch.

The White House expects to pull back unfinished rules across several agencies if there isn’t enough time to finalize them before Trump takes office. If the proposed regulations were left in their current state, the next administration would be able to rewrite them and advance its agenda more quickly…

As the pending Biden regulations are withdrawn, nothing prevents Trump from pursuing his own regulations on the same issues when he returns to the White House, but he would have to start from scratch in a process that can take months or even years…

If a rule has already gone through a public feedback process under Biden, Trump could simply replace it with his own proposal and move straight to enacting the policy, effectively bypassing the comment period.

A spokesperson for president-elect Trump called this a “dirty trick.”

Karoline Leavitt, a spokesperson for Trump, accused the White House of “adding more red tape and making it more difficult for him to govern.”

“President Trump will not be deterred by their dirty tricks and will use every lever of power to reverse the damage Biden has done and implement his America First agenda,” Leavitt said.

The good news is that Trump doesn’t have to undo Biden’s rule, he just has to start from scratch on his own.