U.S. Secretary of Education Miguel Cardona told ESPN that transgender girls have a "right to compete" and suggested that the Biden administration will step in to protect those students' civil rights, as multiple states enact legislation banning transgender athletes from competing in girls' and women's sports.
On June 1, the first day of Pride Month, Florida became the eighth state to ban transgender athletes from girls' and women's competitions. In a wide-ranging interview on issues related to sex discrimination and athletes, the new leader of America's school systems addressed the bans and said it was "nonnegotiable that we're going to protect the civil rights of all students," setting up a possible showdown between federal civil rights enforcement and local control in education.
"I do believe in local control. I do believe in state control, but we do have a responsibility to protect the civil rights of students. And if we feel the civil rights are being violated, we will act," Cardona said. "Our LGBTQ students have endured more harassment than most other groups. It's critically important that we stand with them and give them opportunities to engage in what every other child can engage in without harassment."
Cardona was the commissioner of education in Connecticut prior to joining President Joe Biden's cabinet and said his experience there "strengthened my resolve" to stand behind transgender athletes.
"It's their right as a student to participate in these activities. And we know sports does more than just put ribbons on the first-, second- and third-place winner," he said. "We know that it provides opportunities for students to become a part of a team, to learn a lot about themselves, to set goals and reach them and to challenge themselves. Athletics provides that in our K-12 systems and in our colleges, and all students deserve an opportunity to engage in that."
In 2020, four cisgender female high school athletes filed a federal lawsuit in Connecticut claiming it was unfair and discriminatory that cisgender athletes had to compete against transgender athletes. The lawsuit sought to reverse the state's interscholastic athletic conference's policy that allowed transgender athletes to compete based on their gender identity rather than their birth sex.
Also last year, then-Education Secretary Betsy DeVos threatened to withhold funding to the Connecticut schools aligned with the athletic conference, claiming that the policy that allowed transgender athletes to compete as girls violated the Title IX rights of cisgender girls. The U.S. Department of Education withdrew that support shortly after Biden took office, and a judge dismissed the lawsuit on procedural grounds in April.
On Monday, the U.S. Department of Education Office for Civil Rights begins a weeklong series of virtual public hearings to gather input on Title IX enforcement, which includes many issues that intersect sports: the rights of transgender athletes, athletes involved in reports of sexual violence or sexual harassment, and equal athletic opportunities provided to female and male athletes.
At issue likely will be some of the controversial changes made under DeVos, including how schools handle reports of sexual misconduct.
The Title IX rule changes under DeVos were seen to favor respondents -- those accused of sexual misconduct -- by allowing schools to raise the standard of proof and allow for live hearings where parties can question each other. DeVos also narrowed the definition of sexual harassment and excluded cases that happened off campus or outside school-controlled property. Survivor advocates said the changes deterred reports and left many students without any recourse through the schools.
"I believe it's more difficult for survivors to come forward with some of the ... processes. And once that happens, you can have a college environment that is less safe for students," Cardona said.
"I'll come at it from the perspective of a father. I have two children in high school. Both of them participate in sports, my daughter and my son ... And I would want to make sure that my children felt comfortable reporting something if something happened to them, and felt like they were going to be listened to and not humiliated, embarrassed or intimidated out of the process of reporting if there were issues," he said.
The recent changes also dropped the requirement that coaches be mandatory reporters if they become aware of allegations of sexual harassment or sexual violence. Cardona addressed this by saying that, as an educator for more than 23 years, "if I see something or if a student feels comfortable coming to me ... it's my responsibility to act," and that anyone around students has a responsibility for their "physical safety and emotional well-being."
ESPN asked Cardona about the backlog of about 450 pending investigations into schools for their handling of Title IX complaints regarding sexual violence and harassment, including some that have dragged on for years, such as the investigation into Baylor University that began in 2016.
"That's a priority for me. We need to do better. Every case is a face. Every case that's waiting is a student that felt harassed or violated, and they deserve an opportunity to be heard and a ruling to take place," he said, adding that the upcoming budget includes an allocation for more staff in the department's Office for Civil Rights, which oversees the investigations.
ESPN also asked Cardona about the department's plans to enforce Title IX as it pertains to equal opportunities for male and female athletes. Almost 50 years since the passage of Title IX, schools are still struggling to comply, and more teams are on the chopping block today as college administrators claim budget constraints caused by the COVID-19 pandemic.
"There are 1.3 million less opportunities for girls to compete in high school sports than there are for boys. And we know at the college level, it's probably similar," Cardona said. He said his department wants to work with schools to create a mindset that favors equity and equal access, but the department has the option to intervene with legal action if warranted.
Last month, the department's Office for Civil Rights filed a legal brief in support of Michigan State female swimmers and divers who had filed a Title IX lawsuit arguing that the elimination of their program in October 2020 was discriminatory. They appealed a district court ruling against them, and the case is now pending in the U.S. Court of Appeals for the Sixth Circuit.
ESPN reporters Dan Murphy and Katie Barnes contributed to this report.