President-elect Donald Trump will face significant hurdles to enacting his campaign pledge to ban transgender youth from participating in school sports that align with their gender identity. (Photo by Getty Images)
WASHINGTON — President-elect Donald Trump repeatedly said during the campaign that, if elected back to the White House, he would pursue a ban on transgender youth participating in school sports that align with their gender identity.
As he prepares to take office in January, experts and LGBTQ+ advocates told States Newsroom the effort would face significant delays and challenges as legal pushback from LGBTQ+ advocacy groups can be expected every step of the way.
Trump’s repeated vow to “keep men out of women’s sports” reflects his broader anti-trans agenda. Administration efforts would come as an increasing number of states have passed laws banning trans students from participating in sports that align with their gender identity.
The Trump-Vance transition team did not offer any concrete details when asked about specifics but shared a statement from spokesperson Karoline Leavitt.
“The American people re-elected President Trump by a resounding margin giving him a mandate to implement the promises he made on the campaign trail,” Leavitt wrote. “He will deliver.”
Reversing the final rule for Title IX
The U.S. Education Department, under President Joe Biden, released updated regulations to Title IX in April that strengthen federal protections for LGBTQ+ students. The final rule does not explicitly reference trans athletes’ sports participation — a separate decision the administration put on hold.
The Education Department said Dec. 20 it was withdrawing a proposed rule that would have allowed schools to block some transgender athletes from competing on sports teams that match their gender identities while also preventing across-the-board bans.
Title IX is a landmark federal civil rights law that bars schools that receive federal funding from sex-based discrimination.
The president-elect has pledged, while speaking about trans students’ sports participation, to reverse the Biden administration’s final rule for Title IX on his first day back in office.
The Biden administration’s final rule was met with forceful pushback from GOP attorneys general. A series of legal challenges in states across the country have created a policy patchwork of the final rule and weakened the Biden administration’s vision for enforcement.
But if Trump were to try to reverse the final rule, experts say the effort would take an extended period and require adherence to the rulemaking process outlined in the Administrative Procedure Act, or APA.
The APA rules how federal agencies propose and roll out regulations. That process can take months, creating a barrier for a president seeking to undo a prior administration’s rule.
Cathryn Oakley, senior director of legal policy at the Human Rights Campaign, an LGBTQ+ advocacy group, said that while a subsequent administration can undo the current Title IX regulations, it would take “a tremendous amount of work because a regulation has the force of law … so long as the administration has complied with the APA.”
For the Trump administration to undo those regulations, it would need to start at the beginning, propose its own rules and go through the entire process.
“I think it seems fairly likely that that’s something that they’re going to pursue, but that’s not something that the president has the capability to do on day one,” she said.
Oakley noted that the updated regulations also have the force of law because they interpret a law that already exists — Title IX.
The Trump administration is “bound by Title IX, which in fact has these protections related to gender identity,” she said.
Preparing to push back
But any action from the Trump administration regarding trans athletes’ sports participation is sure to be met with legal challenges from LGBTQ+ advocacy groups.
Oakley said though “we have many real reasons to be concerned” about what the Trump administration would do when it comes to Title IX protections and in general for LGBTQ+ people, “we also need to be cautious that we do not concede anything either.”
“We need to be trying to ground ourselves in the actual legal reality that the president-elect will be facing when he comes into office and be able to fight with the tools that we have and not concede anything in advance.”
Biden rule does not address athletics
The U.S. Education Department under Biden never decided on a separate rule establishing new criteria regarding trans athletes.
Shiwali Patel, a Title IX lawyer and senior director of safe and inclusive schools at the National Women’s Law Center, said “we could see some sort of announcement about changing the Title IX rule to address athletics” under the Trump administration.
“Given the rhetoric that has come out of the Trump administration and this continued focus on trans athletes, I think we very well should and could expect to see something from the Trump administration on this, which is very harmful,” Patel told States Newsroom.
The Trump administration could also try to pursue a national ban via legislation in Congress.
The U.S. House approved a bill last year that would prohibit trans athletes from competing in sports that align with their gender identity. And in July, the chamber passed a measure that would reverse Biden’s final rule for Title IX.
But Patel said she could not see how any measure in Congress could get through the U.S. Senate’s filibuster, which requires at least 60 votes to pass most legislation. There will be 45 Democratic senators in the incoming Congress, though independent Sens. Angus King of Maine and Bernie Sanders of Vermont caucus with the Democrats.
Despite Washington soon entering a GOP trifecta in the U.S. House, Senate and White House, narrow margins could hinder any potential anti-trans legislation from the Trump administration.
Broader anti-trans legislation
Across the country, 25 states have enacted a law that bans trans students from participating in sports that align with their gender identity, according to the Movement Advancement Project, or MAP, an independent think tank.
Logan Casey, director of policy research at MAP, said proponents of these sports bans are using them as a starting point to enact a broader anti-trans agenda.
“In many cases, these sports bans have been one of the first anti-trans laws enacted in recent years in many states, but then states that enact one of these sports bans then go on to enact additional anti-trans or anti-LGBTQ laws,” Casey told States Newsroom.
Casey described any controversy around trans people playing sports as “entirely manufactured.”
“In just five years, we’ve gone from zero states to more than half the country having one of these bans on the books, and that’s really, really fast in the policy world,” he said.
In March 2020, Idaho became the first state to enact this type of ban.