Last Thursday, April 6, 2023, the United States Department of Education (USDOE or Department) issued Notice of Proposed Rulemaking (NPRM) regarding sex-related criteria for participation on female and male athletic teams. The proposed regulations are the result of the Department’s review of Title IX implementing regulations, the text and legislative history of Title IX of the Education Amendments of 1972, relevant state laws and policies of schools and athletic associations, and comments received during a virtual public hearing held by the Department in July 2021.
The NPRM prohibits schools receiving federal financial assistance from categorically banning transgender students from participating on athletic teams consistent with their gender identity, proposing the addition of a new paragraph to the Title IX federal regulations that outline the administration of separate male and female athletic teams. The proposed language provides schools with guidelines for the adoption and application of “sex-related criteria” that would either deny or limit a student’s eligibility to participate on a female or male athletic team consistent with their gender identity. Such “sex-related criteria,” for each sport, each level of competition, and each grade or education level:
- Must be substantially related to the achievement of an important educational objective; and
- Must minimize harms to students whose opportunity to participate on an athletic team consistent with their gender identity would be limited or denied.
While the UDSOE, in its comments to the NPRM, does not provide an exhaustive list of specific “important educational objectives,” it does provide two examples of permissible objectives: the prevention of sports-related injury and fairness in competition. However, the Department asserts that adherence to sex stereotypes, overbroad generalizations about the “different talents, capacities, or preferences of males or females,” or administrative convenience are not permissible “important educational objectives.”
In general, treating students differently on the basis of sex potentially harms those students in a manner that would violate the basic principles of Title IX. However, when sex-related criteria limits or denies a student’s participation on a male or female athletic team consistent with their gender identity, the student may be subjected to harms based on sex distinct from those that the Department has recognized as permissible. For example, the criteria for participation on the girl’s tennis team based on individual athletic skill or ability is different from criteria that limits or denies a student’s participation based on gender identity, which may require students to disclose that they are transgender. The Department recognizes that such disclosure can be traumatic, an invasion of the student’s privacy, or even undermine the student’s social transition. Ultimately, a recipient must design sex-related criteria to minimize the potential harms on affected students.
The Department recognizes that separate male and female athletic teams can advance overall equal opportunity in the context of athletics and has provided girls and women meaningful opportunities for participation in athletics that have been historically absent. However, the NPRM is important to help clarify Title IX’s application to sex-related criteria and the obligation of educational institutions receiving federal financial assistance to do so in a manner consistent with Title IX.
The unofficial Notice of Proposed Rulemaking may be accessed here and comments may be submitted via the Federal eRulemaking Portal up to 30 days after the proposed rule is published in the Federal Registrar.