The trans school sports rule the Democrats didn’t talk about

In the aftermath of Donald Trump’s presidential victory, journalists and analysts have rushed to diagnose the causes of Vice President Kamala Harris’s defeat and the broader losses of the Democratic Party. One of the emerging theories is that voters felt that Democrats had drifted far from mainstream concerns by focusing too much on culture issues — particularly transgender rights.

The GOP weaponized transgender rights on the campaign trail, pouring over $200 million into ads this cycle that painted Harris as out of step. “Kamala is for they/them. President Trump is for you,” blared one ad that launched in September. At rallies, Trump stoked fears with lies about gender-affirming surgery in schools, while promising to ban transgender women from sports.

The Trump campaign maintains that their anti-trans ads resonated not only with Black and Latino men but also with moderate suburban white women concerned about school sports. Galvanize Action, a progressive organization focused on mobilizing moderate white women, did find that 53 percent of respondents on their most recent September survey believed people advocating for the rights of transgender people “have gone too far.”   

After the election, some Democrats echoed the concern. “I don’t want to discriminate against anybody, but I don’t think biological boys should be playing in girls’ sports,” said Rep. Tom Suozzi, a New York moderate, in an interview with the New York Times, “Democrats aren’t saying that, and they should be.” Rep. Seth Moulton of Massachusetts made similar remarks: “I have two little girls. I don’t want them getting run over on the field by a male or formerly male athlete, but as a Democrat, I’m supposed to be afraid to say that.”

Franklin Foer, a journalist for the Atlantic and author of a book on Joe Biden’s presidency, reported last week that some members of Biden’s inner circle were dissatisfied with Harris’s defense against right-wing accusations that she supported the most extreme version of transgender rights, including gender-affirming surgery for prisoners. Biden’s allies claimed that the president “never would have let such attacks stand” and would have “clearly rejected the idea of trans women competing in women’s sports.”

While it will take time to fully understand why voters cast their ballots as they did, one thing is already clear: Neither Harris nor Biden made any effort to talk about what the Biden administration actually proposed to do on school sports. 

What the Biden administration proposed on transgender athletes

In 2023, over strong objections of activists on the right and left, the Biden administration announced a proposed change to Title IX, the law that prohibits discrimination based on sex in any federally funded educational program. Their suggested change would prohibit outright bans on transgender athletes, but would permit schools to restrict transgender students from participating if they could demonstrate that inclusion would harm “educational objectives” like fair competition and the prevention of injury. 

This more nuanced stance marked the first time the Biden administration took the position that sex differences can matter in school sports, something hotly disputed by leading LGBTQ rights organizations. The proposed rule also reflected research that suggests sex differences emerge over time, so the standard for inclusion in high school should not necessarily be the same as that in younger grades.

Contrary to the post-election grumblings from Biden allies in the Atlantic, the president has been virtually silent on his own administration’s proposal for the last 18 months. He’s never spoken about it, and it was never mentioned by any other Biden official, including in any White House briefing on transgender issues. 

The White House declined to comment for this story. A spokesperson for the Education Department said their rulemaking process is still ongoing, as they consider the 150,000 public comments they received. “We do not have information to share today on a timeline,” they added. 

In polling, voters consistently ranked transgender rights as a very low priority compared to other issues. 

But there is some evidence that Republicans’ years of attacks have taken their toll on public opinion. Gallup found in 2023 that 69 percent of Americans believe transgender athletes should only be allowed to compete on sports teams that match their sex assigned at birth, an increase from the 62 percent who said the same in 2021. 

Tellingly, Biden’s proposed policy on transgender athletes — allowing targeted restrictions for fairness and safety while rejecting blanket bans — would likely resonate more with average Americans than the hardline stances typically associated with Republicans, who leaned on transgender fearmongering in the midterms only to see their candidates flop, or Democrats, who many voters perceive as having no nuance on the topic at all. Yet the Biden administration’s reluctance to clearly communicate their middle-ground position left a vacuum that Republicans were happy to fill. It’s a dynamic that political observers say has become increasingly common: Democratic leaders stake out a position but, wary of internal rifts, default to strategic ambiguity even on issues where their stances might resonate with voters.

“The White House could have said something in the election, they could have said Democrats want rules too,” said Lanae Erickson, the senior vice president for social policy at Third Way, a centrist think tank. “The number one big messaging advice from 2022 we had is that Democrats want sports to be fair and athletes to be safe.”

The Biden administration’s proposed school sports rule in 2023 marked a shift from its first two years

Joe Biden has long stood out for his support of transgender rights. In 2012, as vice president, he called it “the civil rights issue of our time” — something he reiterated again while campaigning for his own presidential run in 2020. He named passing the Equality Act, an LGBTQ anti-discrimination bill, a top legislative priority, and on his first day in office issued a sweeping executive order that called on all federal agencies to review their rules to ensure that any sex discrimination protection includes sexual orientation and gender identity, too.  

As the Biden administration prioritized LGBTQ rights, social conservatives were in the midst of shifting their focus to new cultural battles following their decisive losses on marriage for same-sex couples both at the Supreme Court in 2015 and in the court of public opinion. Right-wing activists did not hide that they were searching for a new galvanizing cause to rally donors and grassroots voters. “We threw everything at the wall,” Terry Schilling, the president of American Principles Project, a social conservative advocacy group, told the New York Times.

 While their early efforts to focus on bathroom bans backfired, Schilling’s group discovered in 2019 that focusing on school sports bans appeared much more effective, even though the CDC had found just 1.8 percent of high school students even identified as transgender.

In 2020, Idaho became the first state to ban transgender girls from school sports and within four years, half of all states had passed similar laws, as well as laws banning gender-affirming health care. “It happened super fast. It came out of nowhere,” said Erickson of Third Way. “People weren’t prepared to deal with it because it wasn’t on the radar.”

“Athletes proved potent for them because there’s always winners and losers in sports,” added Gillian Branstetter, a communications strategist with the American Civil Liberties Union (ACLU). “And that’s not a particularly new tool for the right.” 

In terms of policy, the Biden administration initially staked out a position that said there’s no legitimate basis to discriminate based on sex differences. In 2021, Biden’s Justice Department intervened in a lawsuit filed by parents of an 11-year-old transgender girl against the state of West Virginia, affirming this view.

“[West Virginia] cannot point to any valid evidence that allowing transgender girls to participate on girls’ sports teams endangers girls’ athletic opportunities,” said the DOJ in its filing. “Instead, the State legislated based on misconceptions and overbroad assumptions about transgender girls.”

While praised by major LGBTQ groups like the Human Rights Campaign, this position obscured quieter disagreement among transgender leaders. Some questioned whether sports participation should be a top priority for the movement, while others doubted whether litigation was the best approach for advancing inclusion, given the state of public opinion. The Justice Department’s position also masked divides within the Democratic Party. Though it’s a complex topic and more research is needed, some existing scientific evidence suggests that transgender girls and women who do not suppress testosterone can have advantages in sports, particularly if they have gone through male puberty.

The West Virginia lawsuit wasn’t the only federal suit in the works. Happening at the same time was another case involving two transgender girls that was quickly drawing national attention. In response to Terry Miller and Andraya Yearwood winning multiple state track titles in Connecticut, competitors’ parents and the Christian right-wing legal organization Alliance Defending Freedom filed a lawsuit against Connecticut’s policy of including transgender athletes. Though initially dismissed in 2021, a federal judge just this month said the Title IX case could proceed.

As more of these politically charged lawsuits and bills mounted, the Biden administration announced it would be delaying its proposed changes to Title IX, despite its Day 1 executive order. Sources involved said the delay was largely understood as a political move driven by the upcoming midterm elections. When the Education Department finally released its proposed school sports rule in 2023, its language represented more of a compromise.  

The rule marked the Biden administration’s first time saying that sex differences can matter in school sports and schools can discriminate in some cases, while also saying schools do not have to — thus permitting blue states like Connecticut to continue with existing policy. While its merits were debated, the federal proposal was on the table.

“The draft regulation recognizes that there are real sex differences and that these matter in competition,” Doriane Coleman, a law professor at Duke University who focuses on sports and gender, told Vox. “For the progressive wing of the Democratic Party, which takes the position that all sex differences are just myth and stereotype, that was a big, maybe even treasonous move.”

Biden, Harris, and the Democratic Party never talked about the school sports rule after it was proposed

Even as conservatives barraged Democrats with attacks that they were extremists on school sports, the White House and then later the Harris campaign never sought to talk about the direction they thought Title IX policy ought to go. 

Sources with close knowledge of the White House’s thinking, speaking on the condition of anonymity, told Vox the administration worried that talking about the rule would have unintended consequences for transgender individuals already facing threats, and they didn’t want to give political fodder for Republicans to twist their words. So they said nothing. 

Some progressive communications strategists warned against generally staying silent on transgender rights. We Make the Future Action and ASO Communication tested different strategies and found messaging that didn’t directly reference transgender people tended to weaken support for progressive positions among certain voter groups who were otherwise confronted with anti-trans ads. Or, put differently, saying nothing could hurt more than saying something proactive. 

“When Democrats are silent about race or immigrants or trans people, all that conflicted voters hear are the siren songs of hate peddling from Republicans about said ‘other,’” Anat Shenker-Osorio, who led the messaging research, told Vox. “Ignoring doesn’t make the attack go away. It makes it all that voters hear about the topic.”

Erickson of Third Way agreed with this critique. In addition to not wanting to get yelled at by progressive leaders on Twitter, she said, Democrats believed they should avoid talking about transgender rights to change the subject. “I think that is so idiotic, especially when the issue is high-salience,” she stressed, emphasizing that leaders could have focused on shared values of freedom, dignity, and privacy.

Mara Keisling, a longtime transgender advocate and founding director of the National Center for Transgender Equality, told Vox she wasn’t bothered that Harris hadn’t focused on transgender people on the campaign trail and that it’s understandable Harris would prioritize issues that mattered to all voters. 

“It’s more important to me who won the election than whether or not trans people are mentioned,” Keisling said. On the question of where the Biden administration was headed on school sports participation, Kiesling said she just didn’t think people would care about the process of an Education Department rule. “They used to say in politics that if you’re talking about process, you’re losing,” she said. 

Branstetter, with the ACLU, emphasized that it’s not as if national Democrats didn’t have good models to emulate when it comes to messaging, noting that red-state Democrats like those in Kansas, Oklahoma, and Arkansas have demonstrated clearly over the last half-decade how to stand up to anti-trans legislative attacks. “Democrats are overestimating the electoral potency and letting themselves get lost in the issue instead of framing the opposition’s attacks within the broader fight for equality,” she said. 

Moving forward, a series of federal lawsuits — including the aforementioned Connecticut case and one the Supreme Court is set to hear next month — could affect how rules, laws, and guidelines on issues of transgender rights develop. The NCAA is also currently reviewing its own policies for transgender athletes at the college level. 

Given the Supreme Court’s ruling earlier this year in Loper Bright Enterprises v. Raimondo, federal agencies may have far less leeway to make policy decisions of all kinds without Congress getting involved. My colleague Ian Millhiser called the ruling a “radical reordering of the US separation of powers” and “likely to be one of [the Court’s] most consequential modern-day decisions.”

Coleman, of Duke Law, thinks the Loper Bright decision and broader changes in administrative law will mean the school sports issue ultimately gets decided legislatively, not in the courts. 

Until then, though, the matter will likely continue to play out in politics. Democrats may be well-intentioned in seeking to avoid heated and sensitive issues, but their strategy of silence can fuel the perception that the party cannot craft politically viable solutions, and more importantly, contribute to the myth that there’s a major ongoing crisis in school sports.

“There aren’t trans athletes everywhere beating women,” said Keisling. “There are a lot of 6-year-olds and 10-year-olds who just want to play soccer with their friends.”