Comment Letter

TRENTON – New Jersey Attorney General Matthew J. Platkin co-led a coalition of 12 attorneys general in filing a comment letter supporting robust antidiscrimination protections for transgender students in response to a proposed rule 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.

In a letter sent May 15, 2023 to USDOE Secretary Miguel Cardona, Attorney General Platkin joined New York Attorney General Letitia James in co-leading a group of 12 attorneys general supporting aspects of the proposed national rule that would prohibit schools from excluding transgender students from school sports at institutions that receive federal funding.

The letter also recommends revisions to the rule that would, at a minimum, guarantee the inclusion of all transgender students in school sports until they reach the level of elite college athletics. 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, high school, and college intramural levels, 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 like New Jersey from establishing broader protections for transgender athletes under their own state anti-discrimination laws.

“Every student deserves a safe and inclusive school environment,” said Attorney General Platkin. “In New Jersey, we recognize the benefit of school sports on overall education, and we will continue to protect transgender students from all forms of discrimination in schools across our State.”

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 USDOE’s need 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 transgender status causes tangible and real 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 offers many educational benefits. Athletic participation has been linked to academic achievement and improved academic performance. As the attorneys general explain 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.

“The law in New Jersey prohibits discrimination on the basis of gender identity and expression, and that means students have a right to participate in athletics in a manner that corresponds with their gender identity and expression,” said Sundeep Iyer, Director of the Division on Civil Rights.  “We commend the U.S. Department of Education’s efforts to protect transgender and nonbinary students across the country from discrimination.”

New Jersey recommends in its Transgender Student Guidance for School Districts that, “with respect to gender-segregated classes or athletic activities, including intramural and interscholastic athletics, all students must be allowed to participate in a manner consistent with their gender identity.”

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.
• Specifying that the Federal Rule allows more protective state policies, like those of New Jersey

Attorneys General Platkin and James were joined by the attorneys general of California, Hawaii, Illinois, Maine, Massachusetts, Minnesota, Oregon, Rhode Island, Vermont and Washington.

This matter was handled by Deputy Attorneys General Samuel Rubinstein and Justine Longa, under the supervision of Special Litigation Section Chief Jessica Palmer and Assistant Section Chief Andrew Yang, within the Division of Law’s Affirmative Civil Enforcement Practice Group, and by Iris Bromberg, Interim Senior Advisor for Affirmative Enforcement within the Division on Civil Rights.

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