Transgender Athlete Rules

The House of Representatives passed (April 20) legislation (H.R.734) to prohibit in law the ability of school athletic programs to permit persons whose biological sex at birth was male from participating in programs that are for women or girls. The vote was 219-203 with no members crossing party lines. 10 Democrats and 3 Republicans did not vote. 

The Senate is unlikely to support the bill, but President Biden has nevertheless promised to veto the legislation if it does pass the Senate. Neither the House nor the Senate would have the votes to overcome any veto.

The House took this action partly in response to a recent US Department of Education proposed rule (April 6) to adjust current athletic program participation requirements pertinent to transgender athletes consistent with the agency’s Title IX authorities intended to prevent sex-based discrimination in sports.

Overall, the proposed rule establishes that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity. At the same time, however, the proposal provides schools with flexibility to develop individualized team eligibility criteria serving important educational objectives, such as ensuring fairness in competition or preventing sports-related injury.

The criteria would have to account for the sport, level of competition, and grade or education, but could not be premised on disapproval of transgender students or a desire to harm a particular student. Criteria also would have to minimize harm to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.

Under the proposed rule, the Department says it “expects” that elementary school students would generally be able to participate on school sports teams consistent with their gender identity and that it would be difficult to justify excluding students immediately following elementary school from sports participation consistent with their gender identity.

At least some limitations for transgender students at the high school and college level, however, would likely be appropriate given competitiveness considerations. That means sports participation with low-levels of competition consideration (e.g., no-cut teams, intramural sports, etc.) would need to be more accommodating to transgender persons.

The regulation will undergo a public comment period, with the elements subsequently adjusted as is necessary. Once the rules are finalized, which is not likely until later this summer at the earliest, there will could be implementation and enforcement timelines that will push actual local change well into the future. There will also be inevitable challenges within Federal courts from opponents to new rules.

(updated: 4-20-23)

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Proposed School Meal Nutrition Standards

The USDA announced (February 3) that it is proposing a multi-year, gradual increase of school meal nutrition standards.

USDA summarizes the core proposed changes as:

• Limiting added sugars in certain high-sugar products and, later, across entire menus;

• Permitting flavored milk in certain circumstances and with reasonable limits on added sugars;

• Incrementally reducing weekly sodium limits; and,

• Emphasizing products that are primarily whole grain, with the option for occasional non-whole grain products.

The proposed changes are subject to a public comment period. Any proposal in this area can take many months before being finalized. Indeed, USDA’s current timeline doesn’t envision initial actions tied to updated standards until the fall of 2024 when USDA will expect schools to offer products “that are primarily whole grain with the option for occasional non-whole, enriched grain products.” Sugar and sodium reductions would not begin until 2025.

(posted: 2-8-23)

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Proposal to End College Race/Diversity Education

Florida’s Governor, Ron DeSantis, is proposing to defund diversity, equity, and inclusion programs at universities in Florida.

The proposal follows up his efforts at the state and local levels to scale back, if not stop completely, diversity- and race-related topics in elementary and secondary schools.

Defunding college programs at the state level will likely end most, if not all, university-level educational activities in these areas. The state legislature is expected to consider the plan during its 2023 legislative session.

(posted: 2-3-23)

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Infrastructure Act - School Bus Replacement

The EPA awarded (October 26) first year funding of the 2021 Infrastructure and Jobs Act to replace fossil fuel-powered school buses, providing nearly $1 billion to 389 school districts spanning 50 states, the District of Columbia, tribes and US territories. EPA estimates the grants will enable the purchase of nearly 2,500 clean school buses.

The Infrastructure Act provided $1 billion annually for the next five years ($5 billion total) to replace school buses with clean technology. At least 50% of funding must go towards electric buses, and the remaining 50% can be used for alternative fuels buses and/or electric buses. About 95% of buses under this year’s awards will be electric buses.

There are an estimated 450K, mostly diesel, school buses across the United States. Just a small fraction of replacement electric buses are currently in process – about 12,720 in 38 US states according to World Resources Institute data, though the largest single portion (1,400) are going to California school systems alone. While Federal funding is intended to incentivize states and localities to transition to electric vehicles and the funding will likely drive significantly more purchases, there is a long way to go to get to a 'clean' bus fleet.

Diesel exhaust causes smog and impacts global warming, but such exhausts are also known to contain a cancer-causing element, can cause respiratory and heart issues, and can impact the cognitive development of children.

(Updated 10-27-22)

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Virginia School Transgender Policy

The State of Virginia’s Education Department issued (September 16) proposed 2022 “model policies” for school districts to adopt for the state’s school systems. The Department claims that 2021 model policies "sought to achieve cultural and social transformation in schools” that “disregarded the rights of parents and ignored other legal and constitutional principles that significantly impact how schools educate students, including transgender students.”

The key elements of the proposed policies include:

• Use of school facilities like bathrooms or locker rooms should be based on their biological sex, with modifications offered only to the extent required under federal law.

• Students who are minors must be referred to by the name and pronouns in their official records, unless a parent approves the use of something else “in writing, due to their child’s persistent and sincere belief that his or her gender differs with his or her sex.”

• Schools cannot conceal gender information from parents, and they must be given an opportunity to object before counseling services pertaining to gender are offered.

The proposed policies are open for public comment and, after being finalized, each local school board is supposed to “adopt policies that are consistent with but may be more comprehensive than the model policies.” While each school board is likely to implement policies differently, it is neither clear how far each will go nor the actions the state's Governor will eventually take to enforce compliance.

Opponents (see comments from ACLU-VA) argue that the policies are harmful to transgender students and in at least some respect inconsistent with case law.

(updated: 10-17-22)

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School Funding Infusion in Gun Legislation

The bipartisan gun safety and control bill includes an infusion of new funding for schools to include:

• $1 billion in additional funding for school improvement programs. Core school improvement funding in the Department of Education totaled nearly $2.2 billion for FY 2022.

• $240 million to HHS over four years for mental health awareness of school-aged youth, training for school personnel and other adults to detect and respond to mental health issues, and for connecting youth and families to services. Within this funding is a set-aside of $28 million for school-based trauma.

• $500 million over five years for school-based mental health services. FY 2022 appropriations in the Department of Education for this purpose totaled $56 million.

• $500 million over five years to grow and strengthen the school-based mental health workforce including counselors, social workers, and psychologists. FY 2022 appropriations in the Department of Education for this purpose totaled $55 million.

• $50 million for extracurricular, after school, and summer programs, with a focus of new funding on older youth.

• $300 million for school safety measures, violence prevention, and training for personnel and students. FY 2022 appropriations specifically for school safety in the Department of Education totaled $201 million.

(updated: 6-22-22)

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Key Funding Increases Approved for FY 2022

Congress approved final FY 2022 funding for the Federal Government (March 10, 2022) to include a $1 billion, 6% increase for State and local K-12 education grants. The bill also includes $111 million within school mental health services grants, an increase of $95 million over the FY 2021 enacted level, to help school systems increase the number of mental health and child development experts in schools.

(updated: 3-14-22)

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